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Botting calls for moratorium on extradition until Act is revised

In the wake of the Hassan Diab case, there should be a moratorium on all extraditions from Canada until the Extradition Act is revised, says British Columbia criminal lawyer Dr. Gary Botting. See The Fulcrum

The extradition of the former sociology professor to France highlights serious problems with Canada's law that need to be addressed, says Botting, who has written a half a dozen books on extradition including Canadian Extradition Law Practice and Extradition between Canada and the United States.

“Diab was wrongly accused of bombing a Paris synagogue in 1980,” he tells AdvocateDaily.com.

"In fact, he was attending university in Lebanon at the time of the bombing, and later he became a lecturer in sociology at the University of Ottawa and Carleton University, positions he lost subsequent to the allegations brought against him by France in an extradition proceeding.”

Diab returned to Ottawa earlier this month after a nine-year ordeal that included three years in a French prison on terrorism charges, reports CBC News. He was released from prison after the French authorities dropped the charges against him because of a lack of evidence, says the article. 

His repeated requests to return to Canada were denied even though the French courts produced little evidence to support their claim that he was involved in the bombing that killed three people, says the national broadcaster.

Evidence in the case against Diab was so skimpy that, after his extradition to France — where he was kept in solitary confinement for more than three years — he was ordered released eight times, only to be rearrested when the French government appealed, says a press release from the Hassan Diab Support Committee.

Canada's Extradition Act evolved from historical treaties that were designed to protect the individual, in particular, those sought for trial or punishment by a requesting country, explains Botting, principal of Gary N.A. Botting, Barrister and Solicitor

“Past versions of the Act made the process challenging, but the current legislation has dispensed with the checks and balances that other countries impose to protect their own citizens,” he says. 

France, for example, protects its citizens by choosing to prosecute them in France rather than to extradite them, Botting says. 

“By contrast, Canada extradites virtually all persons, citizens or otherwise, who are wanted overseas by extradition partners,” he says. “Often, Canadians are sent to face trial in a foreign country, even where their activities are conducted entirely within Canada, but somehow involve that other country, for example, by online marketing.

“Canada will, it seems in nearly every case, extradite rather than prosecute. We’ve got it backwards.”

Under current Canadian law, Botting says judges have only a “token role” to play, even though extradition is a quasi-criminal proceeding.

“The Act gives total discretion to the federal minister of justice when it comes to choosing to surrender or not to surrender an individual for extradition,” he says.

“The minister has total veto power. The courts of appeal, and ultimately the Supreme Court of Canada (SCC), has the power to halt an extradition if the extradition judge or the minister violates a legal principle. But the SCC rarely grants leave to appeal from an extradition decision.”

Botting says most appeals are dismissed. 

“On rare occasions, the courts of appeal will send the matter back to the extradition judge or minister of justice for reconsideration in accordance with the law,” he says. 

“However, at the initial levels — the extradition committal hearing and the minister’s surrender decision — they pass the buck back and forth. The judges almost always commit the person for extradition saying that the minister of justice or the foreign court has jurisdiction; and the minister often takes the position that since the person has been committed, they must have done something wrong.’”

In the Diab case, Botting believes the French took a similar position: Canada has a just legal system so if it extradited him he must be guilty of something, even though France has no evidence.

Botting says under the French system, Diab had to prove his innocence. 

“And this he eventually did, with the assistance of one of the French judges, who took it upon himself to check out Diab’s claim that he was in Lebanon preparing for university examinations when the alleged terrorist bombing occurred,” he says. 

Botting says the SCC has focused on four things with respect to evidence that should be present in every extradition case: admissibility, reliability, availability and sufficiency.  

“In the Diab case, there was none of the above,” he says.

The evidence tendered by the prosecution would not have been admissible in Canada because it was “second-hand hearsay or questionable ‘expert’ handwriting evidence that was debunked by other experts and eventually withdrawn by the prosecution,” Botting says.

“None of the evidence was reliable, yet the test applied by the extradition court was that the evidence was ‘not manifestly unreliable.' How do you prove a negative — that the evidence is ‘manifestly unreliable?' That test is manifestly unfair.”

The unreliability of the evidence is proven out by the fact that French prosecutors were still unable to cobble together a case three years after the extradition, says Botting.  

“Three years after the fact, the French Court of Appeal found what Diab’s lawyer, Don Bayne, has been saying for nearly a decade: that the evidence is inadmissible, unreliable, unavailable and clearly insufficient to support surrender for extradition,” he says.

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