Bowing to political pressure, France’s top court has reversed the stay of proceedings of a lower court, which could find no reliable evidence linking Diab to a bombing outside a Paris synagogue 40 years ago, he says.

“The French government is being pressured to come up with a scapegoat. In this case, the Canadian extradition judge in 2014 relied on evidence that he himself regarded as unreliable and contradictory, passing the buck to the minister of justice, who has sole discretion in matters of extradition. The minister then could justify the surrender of Diab to France, even though the evidence points to a case of mistaken identity,” says Botting, principal of Gary N.A. Botting, Barrister.

In making the decision to allow Diab to return to Canada, one of the lower court judges in France uncovered evidence showing that Hassan was writing his university examinations in Lebanon at the time of the bombing, he explains.

‘This case has become politicized’

“This case has become politicized, and therefore Canada should recognize that Diab would not be safe or guaranteed a fair trial if he were sent back to France,” Botting tells LegalMattersCanada.ca.

Diab, now an Ottawa university lecturer, was accused by French authorities of involvement in the 1980 Rue Copernic bombing that killed four people and injured more than 40. Arrested by the RCMP in November 2008, he was extradited to France in 2014, spending the next three years in a French prison before the case against him collapsed.

He was never formally charged, with a lower court releasing him due to a lack of evidence. The key piece of evidence was handwriting analysis linking his signature to that of the suspected bomber. In 2009, handwriting experts hired by Diab’s lawyers showed that some of the handwriting samples used by French analysts belonged not to Diab but to his ex-wife.

Despite the lower court’s decision, France’s Court of Cassation ordered the Ottawa academic to stand trial for the bombing in May.

The Canadian government has not formally commented on the request, a CBC story states, quoting a spokesman for the Attorney General who said: “Canada is a rule of law country where extraditions are guided by the Extradition Act, international treaties and the Canadian Charter of Rights and Freedoms.”

Extradition would appease a ‘French mob’

“It appears Canada is prepared to sacrifice a Canadian citizen for the sake of a French mob, made up of lobby groups who say the country needs to prosecute somebody, anybody for this offence,” says Botting.

“If the Minister was truly guided by the Extradition Act, he would exercise his discretion and refuse to entertain any request from France, given its past record of ignoring the legal and human rights of Mr. Diab, and riding roughshod over the treaty,” he said.

“The first article of the treaty reads that each country agrees to extradite to the other ‘any person found within its territory who is charged with an offence,’” Botting says. “But Diab was not charged, even though he had to spend three years in a French prison, violating his civil liberties and provisions of the treaty.”

• Wrongful convictions, right to silence explored by new law journal
• Meng’s ankle bracelet represents a modern-day ‘Scarlet Letter’
• B.C. appeal court the first to give my client a second chance

He notes Article 3 states that neither party shall be “bound to extradite its own nationals.”

“What’s the point of an extradition treaty with this wording?” Botting asks. “France has always refused to allow its citizens to be extradited to other countries to face trial while expecting countries such as Canada to abide by its requests.”

He says Article 5 states that extradition may be refused if “authorities of the requested State have decided … not to prosecute.”

“With the lower court decision in France, I think under Canadian law he would be regarded as being acquitted,” Botting says.

There has already been ‘grave consequences’

Article 8 states that extradition can be refused on humanitarian grounds “if the surrender may have grave consequences for the person sought, in particular because of the age or state of health of that person,” he says.

“Spending three years in a maximum-security prison, much of it in solitary confinement despite not being charged, is a grave consequence,” Botting says. “On humanitarian grounds, Canada simply cannot send him back to France. That country has proven to be irresponsible when it comes to taking the obligations of the extradition treaty seriously.”

He says judges at Canadian extradition hearings need to stop relying on the 2006 Supreme Court of Canada decision United States of America v. Ferras, which stated that if a foreign government submits records containing “sufficient admissible evidence,” those documents should be considered as “presumptively reliable” and the extradition request granted.

“I can count on two hands the number of cases turned down by an extradition judge at this stage, because of this ridiculously low test that was drawn for the Ferras case,” Botting says.

Attorney General must get involved

He says it is up to Attorney General David Lametti to get involved in the Diab case, to ensure that Diab is not again sent to France if that country files a formal extradition request.

“If his extradition to France in 2014 is a standard by which we judge ourselves, we have failed miserably as a country on protecting individual rights here in Canada,” Botting says.

“It is time to suspend all extradition proceedings with France,” he reiterates. “Canada would be completely justified in doing that and it would send a strong message to other countries that France is not a reliable extradition partner. The French republic has to clean up its act.”