'Whitewash': Hassan Diab attacks report concluding government acted properly in his extradition case

Hassan Diab and his lawyer are accusing the federal government of perpetrating a "whitewash" after an external review, released today, concluded government lawyers acted ethically and followed proper procedures in extraditing him to France on a terrorism case that later fell apart.

Diab spent over three years in a French prison before the case against him fell apart

Hassan Diab, an Ottawa academic who was extradited to France after allegations of involvement in the 1980 bombing of a Paris synagogue, listens as his lawyer Donald Bayne responds to the release of an external review on his extradition by the Justice Department, during a press conference on Parliament Hill in Ottawa Friday. (Justin Tang/Canadian Press)

Hassan Diab and his lawyer are accusing the federal government of perpetrating a "whitewash" after an external review, released today, concluded government lawyers acted ethically and followed proper procedures in extraditing him to France for a terrorism case that later fell apart.

"My suffering and that of my family was prolonged by senior officials at the Department of Justice," Diab told a press conference this afternoon. "I trusted the government's promise that what happened to me would never happen to anyone else."

Former deputy attorney general of Ontario Murray Segal, tasked by the federal government with the external review, wrote in the conclusion of his report that "(counsel) acted in a manner that was ethical and consistent – both with the law and … practices and policies."

Diab, a 65-year-old Ottawa university lecturer, was accused by French authorities of involvement in a 1980 bombing outside a Paris synagogue which killed four people and injured more than 40.

Diab was arrested by the RCMP in November 2008 and placed under strict bail conditions until he was extradited to France in 2014.

The Ontario judge who ordered the extradition wrote that France had presented "a weak case; the prospects of conviction in the context of a fair trial seem unlikely."

That proved to be the case. Diab was never charged — but he spent more than three years in near-solitary confinement while France investigated his alleged involvement in the terror attack.

He was returned to Canada in January 2018 after French judges dropped his case due to a lack of evidence.

Anything goes in an extradition, and you can't defend yourself. This will happen again.- Lawyer Donald Bayne

Speaking at a press conference this afternoon, Diab and his lawyer Donald Bayne ripped into Segal's report.

"It's a one-sided report. Its purpose is not to provide accountability. Its purpose is to absolve the Department of Justice of any accountability, and to shield senior officials at the department of any accountability," Diab said.

"This is basically a report that says nothing wrong was done by anybody ... Nothing to see here, folks, move on," Bayne added.

"If Canadian prosecutors and the justice system … all got it so right, why then did (Diab) languish in solitary confinement over three years … an innocent Canadian in a French jail? The standards we are using are clearly wrong.

"Anything goes in an extradition, and you can't defend yourself. This will happen again."

Rights groups such as Amnesty International and the B.C. Civil Liberties Association (BCCLA) called for a public inquiry last year after CBC News revealed the steps Canadian government officials took to help secure Diab's extradition.

But Segal concluded those concerns were unfounded.

"Counsel acted properly in vigorously advancing France's case," Segal wrote. "We would expect French authorities to do the same when Canada makes an extradition request."

No rules broken

Documents obtained by CBC News show that France was aware of — and failed to disclose — fingerprint evidence that helped to clear Diab of involvement in the terrorist attack when it made its formal extradition request to Canada.

Fingerprint analysis conducted by Canadian officials showed that Diab's prints did not match prints thought to belong to the suspected bomber. Diab's lawyers say this information was never shared with the extradition judge — denying the defence key evidence of his innocence.

But Segal found no rules were broken.

Murray Segal, Ontario’s former deputy attorney general and a former chief Crown prosecutor, says in his report the federal Department of Justice acted properly in Hassan Diab's extradition case - but the system has ample room for improvement. (Andrew Vaughan/Canadian Press)

"Counsel also complied with their obligations to the extradition judge and their disclosure obligations," Segal wrote. "I note that, in the course of the extradition proceedings, counsel for Dr. Diab twice brought abuse of process applications relating to the conduct of DOJ counsel (among other grounds). Neither application was successful, and the rulings were not appealed."

But while Segal concluded that Diab's case was handled properly by the Department of Justice, many of his recommendations appear to be aimed directly at criticisms of the department's actions.

His first recommendation, for example, calls for a "buffer, where appropriate, between officials in the requesting state and the litigator in Canada advancing the case for committal" — an apparent reference to instances of coordination between the Department of Justice and French authorities working on Diab's case.

Segal also recommended that states requesting extradition "be encouraged to complete their investigations in relation to the person sought before making a request for extradition, subject, of course, to public safety concerns."

In what appears to be a direct reference to the fingerprint evidence, Segal suggested that "counsel for the Attorney General advancing a case for extradition should consider sharing evidence — particularly relevant and exculpatory or potentially exculpatory evidence — even when they are not required or obligated to do so."

Segal also called on Justice to "find out from the requesting state how long the person sought can be detained" before a decision is made whether to go to trial — a direct reference to Diab's three years in prison without charges — and should consider updating the extradition treaty with France "to specifically address issues of delay and timely proceedings."

Speaking to CBC News by phone today, Segal said that while he believes the Extradition Act "is working," he acknowledged that none of his recommendations would have been likely to prevent Diab's extradition in the first place.

"I don't think anyone had a solid idea that he could spend three and a quarter years in custody before the decision was made not to proceed with charges," he said.

"The law was followed here ... It was not the strongest case."

'It's appalling'

Robert Currie, a professor of law at Dalhousie University who studies extradition, said the mere fact that the law was followed in Diab's case proves the law must change.

"The case that satisfied the Canadian courts that extradition should be granted (with the resultant three years of Dr. Diab rotting in a cell and subject to the strange whims of the French system) didn't even satisfy the French courts — they threw it out," he said in a text message to CBC News.

"It's appalling to me, and should be appalling to Canadians, that in a case where everything proceeded in accordance with law/policy, that this should have happened."

Speaking in Halifax today, Justice Minister David Lametti said he would be reviewing Segal's recommendations closely.

"The extradition process and the process that determines guilt or innocence are two different procedures," he said. "Obviously I have a great deal of sympathy for Dr. Diab and his family. Nobody wants to see anybody sit in prison in a foreign country for that period of time waiting to be tried. You can always make a process better.

"There's a balance in an extradition process between the rights of the person being extradited and the rights of us in maintaining our treaty obligations. It's an extradition proceeding ... we're not looking at guilt or innocence at that stage. We rely on those (foreign) legal systems to make the final determination of guilt or innocence."

'Damage control'

Segal's mandate fell short of the judge-led public inquiry — with full subpoena power and cross-examination of witnesses — that Diab and his supporters had been demanding.

So Diab boycotted this review, arguing the scope was too narrow and appeared to be nothing more than a "concerted damage-control effort."

Diab's objections are spelled out in a letter written by Bayne and sent to Segal in July of last year.

"These terms of reference are a disservice to Dr. Diab and to all the suffering he and his family have been put through," Bayne wrote in the letter, which was also sent to Prime Minister Justin Trudeau and then-justice minister Jody Wilson-Raybould.

Segal's conclusion that the Department of Justice did nothing improper in Diab's case seems to contradict the views of the prime minister, who criticized the outcome.

"I think for Hassan Diab we have to recognize first of all that what happened to him never should have happened," Trudeau said in June 2018. "This is something that, obviously, it's an extremely difficult situation to go through for himself, for his family, and that's why we've asked for an independent external review to look into exactly how this happened and make sure that it never happens again."

The B.C. Civil Liberties association said this afternoon that Segal's report only proves that "Canada's extradition law is severely broken and must be changed."

"This report makes clear that our extradition laws are deeply unfair. Dr. Diab was shipped off for lengthy imprisonment in a foreign country on a flimsy case, without even having the right to see and to respond to the evidence against (him)," the BCCLA said in a media release.

"Canada's laws must be changed to prevent anything like this from happening again in the future. The report makes suggestions as to how federal lawyers might conduct their cases better in order to protect Canadians' rights — with respect, that's not good enough. The law must be changed to guarantee fairness for Canadians whose freedom and lives are at risk."

Diab is still waiting for the French Court of Appeal to deliver a ruling on whether the court will uphold the decision that saw him released from jail.

That court was supposed to hold a hearing in October of last year. No hearing took place.

If France wins its appeal, it could seek to extradite Diab a second time, or to try him in absentia.

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David Cochrane is a senior reporter in CBC's Parliamentary bureau. He previously wrote for CBC Newfoundland and Labrador.

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