Sometime in the near future — nobody knows precisely when — an innocent man and Canadian citizen faces a possible second extradition which would plunge him headfirst into the nightmarish French legal system. This time, Hassan Diab, a Lebanese-born sociology professor, might not return to his family or teaching job at Carleton University in Ottawa.
What is unique here is France’s desire to have Diab face criminal prosecution before its single national court for all terrorist offences — the special Assize Court of Paris.
Diab is likely facing stale evidence from French prosecutors and police going back to 2008, some of it based on secret intelligence obtained through torture. All of it was subsequently discredited by both French and Canadian investigators, the latter including the RCMP.
Legal and human rights experts in Canada are expecting another miscarriage of justice. “We’re quite confident now that the French legal system is biased against [Diab] personally. Now, that’s what is so shocking about this case,” says Rob Currie, a Dalhousie University law professor and an expert on extradition law.
The special Assize Court was established in France in 2019 as part of its series of emergency powers to deal with a spate of largely radical Islamist terrorist attacks which are a byproduct of a national failure to come to terms with a legacy of colonialism, racism and Islamophobia.
Roger Clark, a former Amnesty International Canada Secretary-General, estimates that before this court was set up in 2017, there were almost 500 cases involving about 1,500 people charged with terrorism.
He expects that Diab, now in his late 60s, may wait years before it is his turn to have his case heard in Paris.
“It is an unknown situation — we don’t know what is going to happen, we don’t know when it is going to happen, we don’t even know if it is going to happen,” says Clark, a spokesperson for the Justice for Hassan Diab support committee in Ottawa.
Let us step back. There was an earlier extradition of Diab to France which occurred in 2014 and began as a legal process in Canada in 2008. It was then that police in France first fingered Diab publicly as the primary culprit in the Oct. 3, 1980 attack on the Rue Copernic synagogue in Paris. The bomber under an alias drove a motorbike carrying explosive material that was ignited outside the shul. Four people died and 40 were wounded. The 300 taking part in the religious service inside managed to escape.
It was a horrific act in which the just cause of Palestinian rights was stained by anti-Semitic violence and havoc upon innocent lives. The victims’ families naturally wanted the perpetrator caught, charged and convicted, but it has proven a difficult case for the French police to solve. The fact that Hassan Diab — a common name in Lebanon — was born there, and that the Popular Front for the Liberation of Palestine, the group connected to the blast, happened to originate in Beirut seemed more than a coincidence to the investigators.
Somewhere along the way tunnel vision took hold of the French investigation, and so Diab became the main suspect. A sample of the circumstantial evidence the police faced, says Roger Clark, involved the discovery of Diab’s passport during a search by customs at the Rome Airport in 1981. It had gone missing or was stolen amidst the chaos of the Lebanese civil war while Diab was living in Beirut. Now the document turned up in the luggage of a man smuggling fake passports. It was evident from the date stamps that the unknown user was in Spain between September 20 and October 7, and thus had no connection to a crime happening at the same time in France.
Nonetheless, Diab was charged and thus became the scapegoat. That is how Yasser Louati, founder of the Paris-based Justice & Liberties for All Committee puts it: “Tremendous political and media pressure is applied on their shoulders to try quickly to find the guilty person.”
Sometime after Diab was arrested by the RCMP at the request of France in 2008 and subsequently lost his academic position, police officers and reporters from France assured the CBC-TV program Fifth Estate in a 13-minute documentary (luridly titled Time Bomb: The Hunt for Hassan Diab) that the case against him was a slam dunk despite Diab’s consistent denial of culpability in the crime. Moreover, additional arrests in the bombing were coming soon.
But that proved premature. Dr. Diab is the sole suspect. In a series of appeals against the Canadian court approval of his extradition to France, his lawyer Donald Bayne fought to discredit the prosecution evidence, but it did not matter. Justice Robert Maranger at the Ontario Superior Court of Justice in 2011 said as much after signing off on the handing over of Hassan Diab to French authorities.
“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. However, it matters not that I hold this view.”
By 2014, all the court appeals were exhausted. Dr. Diab started his three-year stint in solitary confinement in a prison near Paris. The French prosecution did not move to immediate trial because it needed more time to build its case. Apparently French law in terrorist cases allows for a four-year detention of an accused person.
The 1999 Canadian extradition legislation passed in Parliament in Canada is in urgent need of serious amendments to avoid this scenario happening again, says Rob Currie. He maintains that there must be better assurance that the trial of an accused Canadian in a foreign state take place in a timely fashion.
On January 12, 2018, French investigative judges dismissed the charges against Diab and set him free to return to Canada. Building upon investigations in Canada and France (kept secret and not shared with Donald Bayne and Hassan Diab), they confirmed that fingerprint evidence from the bomber found on a Paris hotel registration card at the time of the 1980 attack excluded Diab as a suspect. Also, from interviews with witnesses it was clear that Diab was in Beirut writing his university exams during the 13 days from the arrival of the 1980 bomber in Paris on Sept. 22 and his departure on Oct. 3.
Somewhat like the theatre of the absurd, the 2018 decision was not the final word in this bureaucratic exercise. Both the prosecutors and 23 organizations in France, including some representing victims of terrorists, launched an appeal. On January 27, 2021, the investigating chamber of the French Court of Appeal rejected the investigative judges’ exoneration of Diab and ordered that he be put on trial for the 1980 bombing after all. Furthermore, the highest court in France, the Court de Cassation, concurred.
Of note is how the French Court of Appeal issued its decision without proof that Diab could have quickly flown back and forth during exams between Beirut and Paris to set the bomb and leave discreetly.
Donald Bayne told an Oct. 21 press conference that this statement by the Court of Appeal represented “sheer speculation not allowed as evidence in any legitimate legal system.”
Yasser Louati goes further and argues that the French Court of Appeal made a decision that was unprecedented and without parallel in the French legal system. “Diab has been freed and cleared, and so he can move on with his life. There must be political pressure on the [French] government to call him back for his extradition. There is no other explanation.”
Louati also agrees, as does the Hassan Diab Support Committee, that Diab’s Muslim background is a factor in a post 9-11 anti-terror case. “The fact that a person is receiving special treatment because of his religion would not be something new in France,” he adds.
Right now, Diab sits in limbo. A group of legal experts including Donald Bayne and Rob Currie and the International Civil Liberties Monitoring Group (ICLMG) are calling on Canada to say no to any second extradition request from France for Hassan Diab. This alliance is asking Ottawa to consider as an alternative their “Halifax” proposals (where a colloquium was held) to reform a broken Canadian extradition law that fails to provide due process to the accused during extradition hearings.
Also problematic, adds Currie, is the role of the federal Department of Justice lawyers in the International Assistance Group unit as “judge, jury and executioner” in both formally approving the handover to a foreign state and assisting that state in zealously getting the accused person out the door.
Tim McSorley, the national co-ordinator for the ICLMG, worries that a risk-averse Canada is not up to the task of defying France. “I believe that Canada wants to maintain good relations with France. They are worried about a conflict with France over this. They don’t want to be seen as criticizing France s legal system,” he says.
Indeed, a Paris-based lawyer, Avi Bitton, expects Hassan Diab to be flown back to France, where the conviction rate for alleged terrorists is high at the special Assize Court of Paris. “France and Canada have signed an extradition convention. I find it hard to see how Canada would refuse a second extradition of an individual after having accepted the first. “
The other scenario is also dire. Diab could also be tried and convicted in France in absentia, i.e., without his presence in court or in that country. He would then be “a convicted criminal in the eyes of French law,” explains Currie, and thus liable for arrest in countries with negotiated extradition treaties with France.
So far nobody is lobbying inside Canada to hand over Diab, says Roger Clark, in contrast to the clamour to do just that from the Centre for Israel and Jewish Affairs during the first extradition bid after 2008.
Although Prime Minister Justin Trudeau has in the past expressed sympathy for the plight of Hassan Diab, his government’s policy is strictly hands-off. Officially, his government is following the current extradition procedures (as flawed as they are) of waiting to hear from France in the form of confidential diplomatic notes that a request is coming.
A major concern is that Canada is not learning from its past mistake that in agreeing to the extradition of Chinese business executive Meng Wanzhou to the U.S., it found itself manipulated in a U.S.-China trade dispute and lost sight of the lengthy incarceration imposed on two Canadian men, the so-called “two Michaels,” in China.
Ottawa may again play the patsy in the Hassan Diab matter if France comes calling again.
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