Would Canadians support a scheme by which the courts and the government can hand a Canadian citizen over to another country for detention and investigation even if the latter can adduce no credible evidence linking the citizen to a crime? The vast majority of Canadians don’t know it, but this is precisely what Canada’s kafkaesque Extradition Act enables.

Next week, an Ontario Court of Appeal will hear a case to extradite former Carleton University professor Hassan Diab to France for questioning in relation to a 1980 bombing near a synagogue in Paris which killed four people, an attack that was undoubtedly a tragedy. Yet the case against Diab, brought forth by a French investigation, is producing another tragic episode due to the unfair and abusive nature of the Canadian extradition process.  

The basic outline of the story is as follows: In November 2008, the Royal Canadian Mounted Police arrested Professor Diab, then teaching at Carleton University, at the request of French authorities, who wanted him extradited to France even though he had not (and still has not) been charged with committing any crime. (In fact, the allegations against Diab are based on unsourced intelligence, meaning that no one—not even the French investigating judge—knows the origin of the intelligence.) Diab was imprisoned until April 2009, when he was granted bail under rigid and invasive terms, which remain in effect today: he can only leave his house during the daytime if accompanied by a surety and must wear a GPS bracelet on his ankle 24 hours a day, which he and his partner must also pay for to the tune of $2,000 a month.

Following this, Carleton University fired Diab without cause, even though the judge who granted him bail specifically approved his continued teaching at the university. The decision was strongly protested by Diab’s colleagues in the Sociology and Anthropology department, as well as CUPE 4600, the Teaching Assistants and Contract Instructors union, but the administration refused to reverse the decision. As Diab observed: “My life has been turned upside down because of unfounded allegations and suspicions.”

To be sure, Diab has consistently denied the allegations against him, and he offered to take a polygraph test and answer any questions that the French have from Canada. Moreover, many friends and colleagues have filed character letters with the Court describing him as “non-violent”, a “humanist”, “conscientious and dependable”, and “a peace loving man, a devoted teacher.”

The extradition proceedings have been lengthy but the key court decision so far is the June 2011 ruling by Justice Robert Maranger of the Ontario Superior Court. In his ruling, the judge found that the French case against Diab—centred around a handwriting analysis report—is “very problematic”, “convoluted, very confusing, with conclusions that are suspect.” He also found that four other key components of the case made by the French against Diab—including a passport, descriptions of the suspect and composite sketches—"whether taken individually or viewed as a whole, would not be sufficient to justify committing Mr. Diab to trial in ... France.” And he went even further, noting that “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.” Yet, in a conclusion that can only be viewed as deeply troubling, Justice Maranger ruled that Canada's extradition treaty with France gives him no choice but to approve extradition in spite of the aforementioned determinations.

Gary Botting, arguably Canada’s foremost legal scholar on extradition matters, has written that the Extradition Act is “perhaps the least fair statute ever to be passed into Canadian law.” Once an extradition treaty is established with another country—in this case, France, which, by the way, does not extradite its own citizens to Canada—the Act allows a foreign state to request a Canadian citizen’s extradition by merely claiming that it has a “record of the case” that would hold up in its own courts. As Botting explains, “the record of the case is said to be ‘presumptively reliable’ – even though the record of the case does not come close to meeting Canadian standards of evidence and is by definition ‘hearsay’.”

Despite this, some observers seem to suggest that Diab should acquiesce to the extradition demand and head off to France to face the investigating judges and clear his name. This is absurd, however. Absurd not only because this means the man who, again, has not be charged, and who has already suffered profoundly since 2008, would have to leave his family and friends in Ottawa to potentially spend years in detention, racking up legal bills in France, but absurd also because France’s judicial system is especially problematic and dangerous in such cases.

Indeed, Human Rights Watch has sounded the alarm, cautioning that “French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial.” Furthermore, the organization has observed that “the use of evidence obtained from third countries where torture and ill-treatment are routine raises particular concerns,” and that “the courts appear to have allowed as evidence in some cases statements allegedly made under torture.” Given the use of unsourced intelligence by the French in Diab’s case, the above is very concerning.

Amnesty International, the Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association have all filed interventions with the court, expressing their concerns about the case. In the end, however, even if the Court of Appeals upholds Justice Marenger’s ruling, the final decision to extradite is a political one, resting with Minister of Justice Peter MacKay.

Some who have learned of Diab’s case have been so shocked by the injustice that they have started the Hundred for Hassan campaign, where supporters make a monthly contribution of $20 to help cover the financially draining cost of the GPS bracelet. The campaign started with just a few but quickly grew to well over a hundred supporters within a few months, a strong sign that those who learn about the extradition system find it unacceptably problematic.