By Matthew Behrens
The long-running extradition saga
of Ottawa sociology professor Dr. Hassan Diab – sought by French
authorities for a 1980 crime he did not commit – took a dramatic turn when
the Supreme Court of Canada refused to hear his final appeal to stay
in Canada last November. Although Canada had 45 days to forcibly remove
him to France, Dr. Diab was hustled out of the Ottawa-Carleton
Detention Centre and whisked away less than 48 hours later, denied a
previously scheduled opportunity to bid goodbye to his pregnant wife,
Rania, and baby daughter, Jena.
Diab’s lawyer, Donald Bayne, a 43-year veteran of Canadian
courts, appeared stunned at a Parliament Hill press conference the day of
the Court decision, concluding: “We now have in my view a
classic recipe for the wrongful conviction of a Canadian.”
Originally arrested
in 2008, Diab had spent the following six years under house arrest, forced
to pay $2,000 a month for the electronic monitoring device strapped to his
leg, denied an opportunity to teach, and frustrated by an endless
round of extradition hearings where, despite the very low judicial
standards, the severe weakness of the alleged case against him was
nonetheless clearly exposed. During that time, it was revealed that the
physical description, palm and thumb prints, and handwriting of the 1980
rue Copernic bombing suspect did not match Dr. Diab’s.
Despite having the cards stacked against him, Diab had appeared
hopeful that his case would be heard and justice served at the nation’s
highest court.
“It is beyond
devastating that the Supreme Court of Canada would allow my extradition
for a crime that I did not commit and based on a handwriting analysis
report that was shown by world-renowned handwriting experts to be
wholly unreliable, totally erroneous, and biased,” Diab said in
a statement released shortly thereafter. “I have been living
a Kafkaesque nightmare for over six years, fighting false allegations
against me, enduring detention, strict bail conditions, the loss of my
employment, and enormous stress on my family.”
Diab
found it “shocking that this would happen in Canada, despite the
numerous commissions on wrongful convictions based on faulty forensic
evidence and the Court’s vow to never let this happen again.”
Rania Tfaily
was equally amazed that the Supreme Court refused to hear a case that
addressed the unbalanced interpretation of extradition law in
different provinces. “If Hassan’s case were heard in British
Columbia, he would not have been torn away from his home and family and
shipped to a jail in a foreign country, as the British Columbia Court
of Appeal has recognized the utter unfairness of extraditing people
based on unreliable evidence,” she said.
No doubt aware of the controversy surrounding the surrender of Diab
to the French, Canadian officials wasted no time in disappearing him from
Ottawa. “The next day, once he got a chance to use the phone at the
jail, he called me, and I had to tell him the devastating news,” Tfaily
recalled. But their scheduled visit, arranged with the approval of
the detention centre’s superintendent, was not to be.
“In
the evening, a guard came and took photos of him,” Tfaily
said. “He was not told the reason at the time, but it turned
out that this was to issue a temporary passport for him, and in less than
a day, he was issued this passport. In the very early morning, he was
taken away from the Ottawa-Carleton Detention Centre and driven to
Montreal, where he was kept in a jail cell. An RCMP officer
confiscated his eyeglasses, his jacket – even though it was extremely cold
– and his French lawyer’s phone number. Hassan protested this
cruel treatment. Shortly before the departure of a commercial
airplane to Paris, he was escorted to board the plane. French police
accompanied him on the trip.”
Upon
his arrival in Paris, he was taken to a judge, who informed him he was
“under investigation,” and promptly detained. Under French law, an individual
can be held without charge up to 2 years (under a process known as mis en examen) before deciding if
they'll even hold a trial. Other jurisdictions do not permit such lengthy
delays, which effectively constitute indefinite detention.
Diab
now sits in a cell in the largest prison in Europe for 20 hours a day.
This is directly due to the fact that in 2011, Ontario Court judge Robert
Maranger upheld the extradition order, despite his conclusion that
the case against Diab was “weak,” “suspect,” and “confusing,” concluding
“the case presented by the Republic of France against Mr. Diab is a weak
case; the prospects of conviction in the context of a fair trial,
seem unlikely.”
His supporters
fear that he will not receive a fair trial in France’s much-criticized
anti-terrorism courts. Indeed, Human Rights Watch noted that
French “decisions to arrest suspects and place them under
formal investigation are based on a low standard of proof,” and lawyers
complain “that the way in which judicial investigations in terrorism cases
are conducted seriously undermines the right of each defendant to
an effective defense.” The organization’s critique of French anti-terror
laws, Preempting Justice, also notes that “the prominent use of
intelligence material in judicial investigations, in the context of the
close links between judges and the intelligence services, raises concerns
about procedural fairness and reliance on evidence obtained from
third countries where torture and ill-treatment are routine.”
Casual
observers may wonder how Diab’s life in Canada, where he has been a
citizen since 1993, could be so violently uprooted: under Canada’s
extradition law, the rights of Canadian citizens, permanent
residents, and refugees are trumped by foreign policy considerations.
As
in France, the standards in Canadian extradition law are low. In a scene
that might be taken from a Pink Panther
movie featuring the bumbling Inspector Clouseau, the French handwriting case
against Dr. Diab was based on five words written in block letters
from a Paris hotel register. France initially offered two supposed
handwriting “experts” who compared these five printed words with the cursive
writing from Diab’s PhD admissions documents at Syracuse University.
The French concluded that the writer of the 1980 block letters was the
same man whose writings they discovered at Syracuse, even though most
credible handwriting experts conclude block printing cannot be compared
with cursive writing. Another problem, though, was that the Syracuse
writings were not Diab’s: they belonged to his then-wife, Nawal.
Embarrassed French officials were allowed to withdraw their “expert” report
and replace it with another. Experts hired by Diab found the new findings were
fatally flawed and wholly unreliable because they failed to use standard,
accepted methodology. Once that report was withdrawn, the French took another
kick at the can with a third “expert” report that was finally accepted, even
though Judge Maranger found it “susceptible to a great deal of criticism
and attack,” also calling it “illogical… convoluted, very confusing,
with conclusions that are suspect.”
When
his case went to the Ontario Court of Appeal, Diab’s factum reflected
the Alice-in-Wonderland quality of the case, noting the allegations
are “based largely on intelligence reports from unnamed foreign
entities, who in turn obtained information from unknown sources in unknown circumstances.”
Given the impossibility of verifying the reliability of such
information, it was difficult to determine how any court could proceed.
The
Appeal judges, in a similarly weak decision, upheld the extradition, even
though it was by then a matter of record that Diab could become the first
person ever extradited to another country without being charged with
a crime. They also dismissed concerns that tortured-gleaned “intelligence”
would be used against Diab even though, as his legal team pointed
out, “France had a special intelligence sharing relationship with Syria
[which was] shown to have regularly kidnapped Lebanese individuals and
tortured them to extract information on national security and
terrorism matters” and that there exists “no genuine ability to challenge
intelligence in French terror trials.” If a trial does go ahead, the
secret intelligence, which was excluded even from the extradition hearing
in Canada because it would have violated the Charter of Rights and
Freedoms, will be part of the case.
Throughout
this ordeal, Diab has denied the allegations, condemned the 1980 bombing,
offered to be questioned by the French in Ottawa, and even accepted an
offer from the RCMP (later withdrawn) to take a polygraph test.
It
is unlikely that the library at the prison where Diab is held has an
extensive reading list, but it would be interesting to discover whether
there are any books on another wrongful conviction case, one that
shook the French Republic to its core more than a century ago. The case of
Alfred Dreyfus was similarly based on fundamentally flawed and
faulty handwriting analysis. In that case, the first expert consulted
concluded that the suspect handwriting did not belong to Dreyfus; needless
to say, that expert was dismissed and slandered, and the prosecutor
shopped around until he could find a more “accommodating” expert, which
led to a wrongful conviction driven by virulent French anti-Semitism.
Writing
with the passion and honesty that belongs to the wrongfully defamed and
detained, on December 5, 1894, Dreyfus wrote from prison: “The truth will
out in the end. My conscience is calm and tranquil, and does not
reproach me for anything. I have always done my duty and have never bowed
my head. I have been overwhelmed, crushed in my dark prison, along
with my mind; I have had moments of wild madness; I raved and rambled, but my
conscience remained alert. It said to me: ‘Keep your head up and look
the world in the face. Strong in the knowledge that your conscience
is clear, walk straight and get up again. It is an appalling ordeal, but
it must be endured.’”
Over
a century later, Diab faces the same outmoded judicial system that
condemned Dreyfus – an inquisitorial, Napoleonic-era creation that
even former French President Sarkozy has said should be abolished
given that it eliminates the presumption of innocence.
“I,
my family, friends, and supporters, will continue to fight the false
allegations that have been imposed on me, a Canadian citizen who
is law-abiding, peaceful, compassionate, and who abhors violence,” Diab writes.
“I am grateful and heartened by the outpouring of support from thousands
of individuals and organizations that recognize the injustice that I have
experienced and the unfairness of Canada’s extradition law. I vow to never
give up, and I will always remain hopeful that I will eventually return to
my home in Canada and be reunited with my wife and children.”
The
pain of separation for Diab and his young family – which grew with the
birth of a second child in January – is beyond words. An extensive network
of Canadian supporters is now working on building French support.
Meanwhile, a series of activities is planned, from writing letters of
support to fundraising to help defray significant costs of everything from
new lawyers to long-distance calls from the overseas jail. For details on
the Bring Hassan Home campaign, see http://www.justiceforhassandiab.org/
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