Former Amnesty International Canada Director Roger Clark: “Let’s Not Allow another Wrongful Extradition of Dr Hassan Diab” (Part 2)

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Zeinab Merai, Sada al-Mashrek

“Canada has failed Hassan monumentally, catastrophically by failing to uphold the principles behind the Canadian Charter... But still the spirit of the Canadian Charter is there, and the respect for the proper legal process is inherent within the Canadian Charter as well, including the right to things like cross-examination of witnesses, which is outside the Extradition Act, so Canada has a lot of work to do to set the extradition process right,” states Former Amnesty International Canada Director Roger Clark to “Sada al-Mashrek”.

 

Continuous letters

“Over the past months, it has become clear that the persecution of Dr Diab is not only a flagrant miscarriage of justice; it is also political in nature. As such, it demands a political solution,” says IJV Canada in a letter (Send an Email to Justin Trudeau: No Second Extradition for Hassan Diab! | IJV Canada) to Prime Minister Justin Trudeau, “That solution lies in your hands… You have the power to pressure France to drop the case against Dr Diab and to guarantee his freedom once and for all.”

Another letter (Letter to PM Trudeau — Support Hassan Diab: No New Trial (winchevskycentre.org) by Executive Director Rachel Epstein on behalf of the “United Jewish People’s Order-Canada” reads, “Do not extradite Dr Diab. In the words of Donald Bayne, Diab’s Canadian lawyer, ‘The decision of the French court of appeal is the continuation of a long odyssey of injustice...’ It’s time that the Canadian government put a halt to that unjust journey.”

Professor Roger Clark and the other members of the “Hassan Diab Support Committee” have recently gathered signatures from the legal world on a lawyer’s letter, some of whom “are well-known for their human rights work and so forth, even if they’ve not been very closely involved in Hassan’s, like Gary Botting, who’s a big extradition lawyer in Vancouver and quite a famous man.. I think it’s important that sometimes by looking at specific professional groups you can actually mobilise more widely,” says Clark to “Sada al-Mashrek”.

The open letter was sent on 14 September 2021 by the “International Civil Liberties Monitoring Group” and addressed Minister of Justice and Attorney General of Canada David Lametti. Signed by 118 members of the legal profession and legal scholars in Canada, it has been copied to other prominent officials and leaders of political parties. (More than 110 Canadian Jurists Demand Justice for Hassan Diab - International Civil Liberties Monitoring Group (iclmg.ca))

The letter reminds Lametti that “recently, over 10,000 letters from individuals and organisations were sent to your government expressing grave concern about the latest news regarding Hassan Diab and the prospects of a second extradition…”

According to ICLMG, Lametti has made the following “standard reply”: “As extradition requests are confidential state-to-state communications, I cannot confirm or deny the existence of a request until and unless it is acted upon. Canada would review a new extradition request in accordance with the Extradition Act, the Canadian Charter of Rights and Freedoms, and our treaty obligations. A decision to start extradition proceedings would consider whether there is sufficient evidence to support the request as well as whether it is in the public interest to proceed.”

The signatories, thus, believe that the response letter they got from Lametti “is unconvincing for the following reasons: A wait-and-see approach is unjustifiable… A non-reciprocal Extradition Treaty between France and Canada is iniquitous and defective…There is no evidence to support a second extradition request… It is not in the public interest to proceed…”

Therefore the signatories have renewed their demands as to ending the ongoing injustice in Diab’s case and suspending the extradition treaty with France.

Gary Botting: “Disgusting”

An opinion article by Barrister Garry Botting (https://legalmatterscanada.ca/hassan-diab-deserves-better-from-the-justice-minister/), Barrister Gary Botting expresses outrage at Minister Lametti’s handling of Diab’s case. 

“Parliament gave Lametti full discretion not only to reject extradition requests out of hand but also to terminate them when to proceed appeared to be against the national interest,” explains Botting.

“This unusual provision of the Extradition Act is founded on the notion that extradition is not at base a legal or judicial issue, but rather is political in nature…”

An author of several books on extradition, Botting notes that “every country in the world sees it that way, except for Canada. For example, France would never deliver up one of its own citizens to a foreign country. That’s not only because it values and protects its citizens more than Canada does, but that it recognises that there would be major political ramifications at home were it to do so…

France has proven to be an untrustworthy extradition partner, claiming to have evidence where there was none, claiming to be ready for trial when they weren’t. They lied…

The Minister of Justice seems to think that he can retrace in the Diab case the arbitrary template he used to proceed with the Meng hearing – in the hallowed name of the Rule of Law. That’s just disgusting,” concludes the barrister.  

 

Murray Segal’s “independent review”

An external review that Trudeau promised after Diab returned to Canada was actually conducted by former Deputy Attorney General and former Chief Prosecutor of Ontario Murray Segal. But “it was actually a bit of a fiasco,” believes Clark. “He was asked to determine whether the Canadian justice officials had followed the correct procedures. It was very narrow, and there was no opportunity for Murray Segal to really interview and question and go into some of the questionable activities around the justice officials at the time of the extradition hearings, including the suppression of the fingerprint ‘evidence’ that in fact supported Hassan."

Professor Clark also points out that “this so-called 'evidence' was withdrawn by the prosecutors before the extradition hearing concluded. They did this because it was immediately apparent to everyone that it was without credibility and could not be relied on in court. The extradition judge, Ontario Superior Court Justice Robert Maranger, also made it clear that without the 'handwriting evidence', he would not have allowed the extradition to proceed. It has since been concluded, even by the prosecution, that the handwriting evidence was itself totally flawed and without merit.

There are a lot of issues there, but Segal was not given a mandate to look into them, so when he produced his report in May of 2019, he basically said that there was no problem and that they had done everything by the book. So it was a whitewash, whether it was intended that way or not, and it was certainly not an external enquiry.

It was very disappointing, and it seemed to us that it was just a way of avoiding government responsibility for what went wrong, and that’s still the case. That has not really been resolved. What we had hoped was that the enquiry would point out things like the suppression of evidence or the failure to address questions around secret intelligence and all those things that we have talked about.”

The “five pieces of evidence” Segal mentions in his review (https://www.justice.gc.ca/eng/rp-pr/cj-jp/ext/01/review_extradition_hassan_diab.pdf) include “witness statements from former friends of Hassan Diab’s identifying him as a member of the Popular Front for the Liberation of Palestine.”

This does seem like wanting to scapegoat a Middle Eastern, particularly a Lebanese Muslim, alleged to have belonged to an armed-resistance movement to quench the thirst of the wider international group of revengeful Zionist lobbyists. Obviously, this makes it easier for the alleging parties to frame Diab, who comes from a country of armed-resistance conflict with Israel.

Segal says his “tasks were to assess whether government actors followed the law and DOJ [Department of Justice] policies and practices in the conduct of this case, whether any approaches taken by IAG [the International Assistance Group at the Department of Justice] counsel could be improved, and if there were any specific concerns that Canada should address with our foreign partner (France)…”

As Clark points out in his criticism of the review, Segal’s conclusions state that “none of the criticisms lodged against the DOJ counsel have any merit. My conclusion that DOJ counsel acted in a manner that was ethical is based on a firm factual foundation... DOJ counsel acted properly in vigorously advancing France’s case…

The world of extradition is poorly understood and information about how Canada’s extradition system works is difficult to access. Significant and sustained efforts should be made to illuminate Canada’s extradition process and increase its transparency. I believe these efforts could contribute to greater respect for and confidence in our extradition system.”

 

The absurdity

“We were very disappointed, and we said as much,” recalls Clark. “When the report came out, we had a press conference and we made it very clear that it was just not acceptable. In fact, it was so bad. I remember that Hassan refused to cooperate with Murray Segal or talk to him. Hassan said, ‘Well, as long as Segal’s mandate is framed the way it is, I refuse to be part of that process.’ That was his position; I don’t think it affected the outcome, which was probably foreseeable from the beginning.”

Absurdly, France requested Diab’s extradition in November 2008, which was 28 years after the rue Copernic synagogue bombing. An awful lot can happen in 28 years. Why on earth would any judicial system wait so long to lay charges if they had such a strong case? Doesn’t this enfeeble their arguments? The real perpetrator could even have died. Who knows?

 

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