With its appalling decision against Hassan Diab last week, the Ontario Court of Appeal has rendered every Canadian citizen vulnerable to being plucked from this country and packed off to a foreign court -- without charges even having to be laid.
Just a quick re-cap: Diab has been implicated by a crusading French magistrate in the bombing of a synagogue in Paris, on the rue Copernic, in 1980. A cherry-picked Record of Case (ROC) submitted by France deliberately left out exculpatory evidence—which the Crown here at home said was perfectly all right. What remains in the ROC is contradictory, flimsy and false. Diab had long blond hair, according to one eyewitness. He had medium length black hair, according to another. He was 45. No, he was 26. He had a stocky build. A slim build. He entered France by train and plane simultaneously.
When it became apparent that experts would be permitted to rebut handwriting evidence in the ROC before the judge hearing the extradition case in Ottawa, the French hastily withdrew it and submitted what amounted to an entirely new case, based upon a handwriting analysis carried out by a charlatan with 21 hours of training. Internationally-respected handwriting analysis tore her report to shreds, and the judge found it "very problematic, very confusing, with conclusions that are suspect," but he ordered our fellow-citizen booted out of his country anyway.
Now the Ontario Court of Appeal has upheld Diab's extradition—even though he has yet to have any charges laid against him. The French authorities, we are told, simply want to talk to him as they pursue their investigation of the synagogue bombing. Well, why don't they interview him here, then?
But regardless, many will ask: So what? France has a decent justice system. If Diab gets charged, he'll have his day in court. If he's innocent, he has nothing to fear.
Things don’t work in France the way they do here, however. There is no adversarial system in place. Instead, investigations are conducted by an examining magistrate—in this case, Marc Trévidic, the one under whose supervision the ROC was prepared, and who has so far shown himself less than interested in giving Diab a fair shake. Defence expert witnesses? Under the French system, they can’t even be called. The magistrate alone will decide if he wishes to hear rebuttal evidence. Those under such investigation in an anti-terrorism case can be held for up to four years in pre-trial detention. If the case proceeds to trial, evidence obtained under torture, and some of that is apparently included in Diab’s dossier, is admissible. Deference is also given to the evidence assembled by the examining magistrate. Even if finally exonerated through an appeal to the European Court of Justice, an accused can spend years behind bars.
This is what a Canadian citizen, not charged with any crime, may be facing. And, so far, our system of justice is okay with it.
I have deliberately left out the diversion of Middle East politics in all of this. They shouldn't matter. But it's hard to avoid the conclusion that they do. After all, had Diab been charged with a common-or-garden murder, or a drug offence, the legal issues would be entirely the same: but who can seriously believe that, on similar wretched "evidence," a Canadian citizen not even facing charges would be plucked from his family and his home and shipped off to some other country? After this court decision, though, that becomes a distinct possibility.
The terrorist perpetrators of the atrocity in rue Copernic, however, have never been tracked down. That offends our sense of justice, but, even more, our keen desire for closure. Innocence in these circumstances becomes, in practical terms, irrelevant. Just about any stand-in will do at this point to pay for the crime—especially someone with one of those funny Arab names. (Read the newspaper commentary for yourselves: Diab's ethnicity alone appears to be sufficient evidence against him.)
When Diab was originally grabbed by the RCMP, he had been working as a sessional lecturer in the Department of Sociology and Anthropology at Carleton University. B'nai Brith made a call to the President, and he was terminated forthwith, reportedly in mid-lecture. Andrew Potter, now the Ottawa Citizen's managing editor, argued in a frankly sick bit of commentary that hiring Diab in the first place was proof of the department's anti-Semitism:
[I]t is hard to interpret the slur against Jews as anything but entirely deliberate….[P]erhaps [Peter] Gose [Chair of the Department] believes that Muslim students might actually find it congenial to be taught by an accused terrorist and mass murder [sic].
This, then, is the context within which the slow railroading of Hassan Diab has been proceeding. Forget the presumption of innocence; ignore the Charter guarantees of life, liberty and security of the person. In his case, they simply don’t apply. One cannot help thinking that, had he been fortunate enough to be born Mike Smith, he would be living a quiet and unassuming life here in Canada, and most people would never have heard of him. But as things stand now, not even Mike Smith is safe anymore.
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