Canada should suspend its extradition treaty with France over the persecution of Hassan Diab

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Hassan Diab in front of Parliament in Ottawa. Image: Don Pratt/Facebook

To those who have been following it, the latest event in the saga of France's persecution of Ottawa academic Hassan Diab is unsurprising, but no less appalling for that.

On May 19 France's top court upheld a lower court ruling ordering Diab to stand trial for a 1980 terrorist bombing in Paris. This is despite the fact that in 2018 the French court that originally oversaw Diab's prosecution ordered him released and dismissed the proceeding for lack of evidence. And it's despite the fact that even what slim and inadequate evidence existed back in 2018 has been debunked by both defence experts and the French lower court itself.

Diab was extradited to France in 2014 on the basis of evidence that even the judge committing him for extradition found to be flimsy. Canada's Department of Justice nonetheless zealously pursued his extradition, only to see the French case against him fall apart for lack of evidence -- but only after he had spent three years in solitary confinement in a maximum-security French prison.

Journalists discovered that fingerprint evidence that excluded Diab from being the bomber had been withheld from the Canadian courts. Prime Minister Justin Trudeau promised to get to the bottom of the case and "make sure this never happens again."

And yet, outrageously, here it is, happening again. The court of cassation's decision is perverse, made comprehensible only by the fact that a powerful victims' lobby in France has publicly pressured the government to put someone, anyone, on trial for the 1980 bombing. The fact that Diab is not even a reasonable suspect in the case seems not to matter.

The prime minister recently claimed that Canada was "standing up" for Diab, as it would for other citizens targeted for unfair prosecution by foreign states; but it is not clear what is being done, and in any event, it appears it is not working.

It is time that the government of Canada took both diplomatic and legal steps to push back against France's unfair and unlawful pursuit of a Canadian citizen. Such steps would be unusual and would have to be cautiously applied, since governments do not lightly interfere with how foreign states administer their criminal law, particularly when those foreign states are historical allies like France. But this is an unusual case, and there are international law considerations that Canada can bring into play, if it has the political will to protect its citizen.

France is arguably in breach of the United Nations International Covenant on Civil and Political Rights (ICCPR), under which it is obliged both to ensure fair criminal investigation and trial procedures, and to send people to trial within a reasonable time. These are obligations owed to Canada, which is also a party to the treaty, and neither seems to have been complied with here.

Also, the court of cassation's decision may clear the way for a renewed extradition request by France for Diab. In the circumstances of this case, such a request might very well violate the Canada-France extradition treaty itself, which is underpinned by an obligation to undertake extradition only in good faith.

Problems in extradition relations with France

The Diab case is not the only legal issue that taints Canada's extradition relationship with France. Inuit leaders in Nunavut have argued that Canada has let them down by discontinuing a case against Father Johannes Rivoire, a French citizen who fled to France after allegedly sexually assaulting four children.

Canadian charges against Rivoire were quietly dropped in 2017; when questioned, Justice Canada refused to say whether it had sought extradition, nor is there any evidence that Canada has ever even asked France to prosecute Rivoire.

Canada is also currently pursuing, on France's behalf, the extradition of a woman who has been charged with abducting her children. She has credibly alleged that she fled France with her children because its police and courts would not protect them from her abusive spouse.

Unlike in Canada, there would be no defence of "necessity" or "defence of another" available to her if tried in France, yet Justice Canada has pressed forward with the extradition. (This case is troublingly similar to that of Michele Messina, who died by suicide to avoid extradition by Canada to the U.S. in an identical situation).

France is also known for having significant problems with its criminal justice system. It has long been the subject of criticism for lengthy trial delays and excessive pre-trial detention, as well as barriers to accused people being able to access a lawyer. The European Court of Human Rights has ruled that France's prison conditions amount to inhuman and degrading treatment.

Hassan Diab himself experienced all of these human rights breaches in one way or another. It is troubling that Canada continues to extradite people to France with such enthusiasm.

Canada's legal options to help Diab

What, then, are Canada's options? There is nothing barring the government from making diplomatic representations to France and requesting that it put an end to this prosecution; indeed, all states are entitled to do this on behalf of their nationals. Given the French courts' willingness to proceed with such an absurdly weak case, however, this would probably be fruitless.

Canada could also bring a case against France before the International Court of Justice, on the basis that it has breached the ICCPR, though this would be an expensive and time-consuming affair. Given the impact that such cases have on diplomatic relations -- particularly between allies -- it might amount to overkill.

However, one remedy Canada has recently used would suit this situation. In 2020, when China brought in a new security law that threatened to erode human rights protections in Hong Kong, Canada suspended the Canada-Hong Kong extradition treaty. This was primarily a gesture of diplomatic displeasure, but also served to highlight Canada's concerns about human rights.

Such a measure would fit very well in this case. On the diplomatic side, it would signal that Canada will no longer tolerate -- as it should not -- France's unlawful and immoral treatment of Diab.

Moreover, in international law terms it would amount to an exercise of "countermeasures," where states whose rights have been violated can suspend their compliance with other legal obligations owed to the violating state, as a means of ending the initial breach. France's abuse of Diab's human rights and of its own rights and obligations under the extradition treaty could very well justify such a step.

Extradition relations between countries are meant to be built on a foundation of mutual respect and accommodation. In Canada-France extradition relations, the respect and accommodation appear to be one-sided; Canada has been eager to help France, but France has not been a good extradition partner. Suspending the extradition treaty would be a first step toward ending the persecution of Hassan Diab, and to improving an important but dysfunctional relationship.

Robert J. Currie is a professor of transnational criminal law at the Schulich School of Law, Dalhousie University.

Image: Don Pratt/Facebook

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