Questions
Abound as Suspected Terrorist Hassan Diab Returned to Canada
by Scott Newark
Special to IPT News
February 6, 2018
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Hassan Diab is greeted
by his family upon his return last month to Canada.
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The French government allowed the release of Hassan Diab from custody
last month after a three-year terrorism investigation and allowed his
return to Canada without prosecution. While that fact alone deserves public
scrutiny, the Diab case has been in the public spotlight since 2008 when
the Lebanese-Canadian citizen was arrested near Ottawa following an
extradition request from France.
The request was related to a terrorist attack on a Paris synagogue in
1980 that killed four people and injured scores of others. After
a lengthy court hearing and discretionary ministerial approval, all of
which were upheld on appeal, Diab was extradited to France in November
2014.
The Diab case attracted significant public attention as it weaved its
way through the Canadian extradition process. This public interest was
based on the apparent solving of a high profile historical terrorist
attack, as well as the details of the evidence that were being relied on to
make the case against Diab. At the time there were also issues raised about
whether the decision-making procedure under Canada's Extradition Act was
appropriate to deal with this kind of terrorism case. With Diab's return to
Canada without the prosecution that was the purpose of the
extradition request, these procedural issues have resurfaced, including
with demands for a public inquiry into the case.
To appreciate why this kind of a review may be appropriate, it is
necessary to review the evidence that was presented in the case and why,
despite clear court-recognized deficiencies, Diab was extradited to France
in the first place.
French authorities blamed the Paris synagogue attack on the terrorist
group Popular Front for the Liberation of Palestine (PFLP). The case
remained dormant until 2007, when German authorities revealed that they had
discovered a PFLP membership list which referenced Diab as the leader of
the Paris attack. French authorities then revealed that they had other
evidence – including photographs and suspect sketches from the scene,
handwriting believed to belong to the leader of the attack, and links to
his passport.
The allegations against Diab were reported in the French media in
October 2007. Diab, then a Canadian citizen and sociology professor at
Ottawa University, denied the claims and offered to be interviewed by
French officials if it happened in Canada. The French declined, and Diab
was arrested and detained by the RCMP in November 2008 pursuant to a formal
extradition request by France on multiple murder and attempted murder
charges.
Diab's personal history did not seem to fit the expected profile of a
terrorist. A Shia Muslim born in Lebanon, he obtained a bachelor's degree
from Beirut University in 1982. He emigrated to the United States in 1987,
obtaining a master's degree and Ph.D. in Sociology from Syracuse University
in 1992 and 1995 respectively. Diab reportedly obtained Canadian
citizenship later in the 1990s and reportedly undertook teaching positions
in Lebanon and the UAE. He moved to Ottawa to assume his teaching position
in 2006. At his initial bail hearing, Diab testified that, following the
French media report of his involvement in the 1980 terrorist attack and
before his arrest in 2008, he believed he was being followed and reported
that to the Ottawa police without result.
There were questions from the outset about the sufficiency and
reliability of the French evidence against Diab. Under Canada's Extradition
Act, however, the Canadian prosecutor did not present the actual evidence
to the court and instead produced a summary of what they were advised would
be presented at trial in France. Additionally, the evidentiary standard to
approve extradition was not proof beyond a reasonable doubt as required at
trial. Instead, it is a much lower standard that a properly instructed jury
could reasonably return a verdict of guilty.
In June 2011, Justice Robert Maranger approved Diab's extradition but noted the low legal standard that required his
extradition order and specifically commented that the evidence was
"...weak, convoluted and confusing" and would likely be too weak
to convict Diab if he were tried in Canada.
The next step required the justice minister's approval, which came in
April 2012. Diab appealed both decisions. The Ontario Court of Appeal issued a detailed ruling in 2014 upholding the
extradition orders while confirming the evidentiary and systemic concerns.
The Supreme Court of Canada refused to hear a further appeal, and in November
2014, Diab was extradited to France.
The French investigation collapsed while Diab was detained over the next
three years. He was ordered released on bail eight separate times but those
were all overturned on the basis of him being a flight risk. Finally, a
French judge dismissed the case noting that the supposed intelligence about
Diab's PFLP role was unsourced, there was no DNA or photo link evidence,
and the supposed handwriting matches with Diab were completely unreliable.
The judge also cited further investigative evidence that confirmed Diab's
alibi that he was in school in Beirut at the time of the attacks and that
his passport had been stolen as he claimed. As a result, Diab was allowed
to leave France and return to Canada.
Diab and his lawyer have called for a public inquiry, not only into the facts of
his case, but also the existing extradition process. This kind of review
makes sense and should include whether removal is for prosecution and not
investigation; allowing judges to require direct evidence from the
requesting state; clarifying the right of the accused to present evidence;
reviewing the evidentiary basis for extradition and the ministerial
discretion to deny extradition.
In today's world of international crime and terrorism, investigative
cooperation among countries is critical. As such, however awkward it may
be, it's time to learn from this experience and move forward.
Scott Newark is a former Alberta Crown Prosecutor who has also served
as Executive Officer of the Canadian Police Association, Vice Chair of the
Ontario Office for Victims of Crime, Director of Operations for
Investigative Project on Terrorism and as a Security Policy Advisor to the
governments of Ontario and Canada. He is currently an Adjunct Professor in
the TRSS Program in the School of Criminology at Simon Fraser University.
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