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Public inquiry needed into professor’s extradition: Botting

published June 11, 2018

OTTAWA — Justice Minister Jody Wilson-Raybould has asked for an independent review of an extradition that resulted in an Ottawa professor spending three years in a French jail, only to be released.

The external review — which has not started — is in addition to an internal "lessons learned'' examination already underway, a spokesman for Wilson-Raybould said.

French authorities suspected the man was involved in the 1980 bombing of a Paris synagogue that killed four people and injured dozens of others, an accusation he has always denied.

The sociology professor and his supporters have been urging the federal government to hold a full public inquiry into the case and to reform the Extradition Act to ensure individual rights are respected.

In a letter Tuesday to Amnesty International Canada and the British Columbia Civil Liberties Association, Wilson-Raybould said Diab was afforded "all of the procedural safeguards'' under the Extradition Act and that his Charter rights were considered during Canadian court proceedings.

"Nonetheless, due to the three-year-period that [the man] spent in custody in France, I have been reflecting carefully on this case,'' said her letter, made available to The Canadian Press by the two rights organizations.

"As you know, Department of Justice Canada officials have undertaken a 'lessons learned' review of the [man's] extradition proceedings. I have also asked for an independent external review of this matter.''

In an interview with AdvocateDaily, British Columbia criminal and extradition lawyer Gary Botting says a commission of inquiry is more appropriate under the circumstances because the entire Extradition Act needs to be revamped.

“The advantage of a commission of inquiry over an independent review is that the results are automatically made public,” he says.

Botting, principal of Gary N. A. Botting, Barrister and Solicitor, says the problems with Canada's extradition process goes far beyond this case — “it is endemic.”

He is skeptical that an internal “lessons learned” process will be effective in resulting in necessary change within the federal department.

“One of the problems is that extradition has devolved so that judges now have little or no discretion to reject the 'presumptively reliable' evidence of the record of the case,” he says.

“The minister of justice has total discretion over whether to surrender for extradition or to discharge the individual. Where a judge advises that the case against an individual is ‘weak’ it behooves the minister of justice to refuse surrender.”

Botting says he would like to know what actual “procedural safeguards” under the Extradition Act the Ottawa professor was afforded.

“There are none. That is the problem,” he says. “A prosecutor in a foreign jurisdiction states that he has a case against an individual and sets it out in summary form. That summary is the ‘presumptively reliable’ evidence, according to the Supreme Court of Canada — to the point that the individual cannot tender evidence to rebut it.

“This man’s Charter rights were violated every step of the way, including his right not to be removed from his adopted country (s. 6), and the right to be free from abuse of process (s. 7). Here, the abuse of process was manifest: France did not have a case from the outset, and the Canadian Department of Justice sought to rectify the deficiency by suggesting ‘experts’ who would be accepted by Canadian courts. What happened should shock Canadians.”

It represents an “abuse of process,” Botting adds.

The irony in this case, he says, is that "according to the Canada-France Extradition Treaty, France is not allowed to give up its own citizens for trial in Canada.

"The double standard is disturbing. Why are citizens of France more worthy of protection by their country than citizens of Canada?” Read more at CBC and CTV News.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said Wednesday he is seeking answers from the minister about the independent review, including whether the findings will be made public.

"Who will be or has been appointed? What is the scope of the review? Will they have the power to require the department to co-operate with them?''

Amnesty's Alex Neve welcomed the minister's intention but he called for a thorough public inquiry that probes the conduct of Canadian officials, to be led by a respected judge with access to documents and powers to compel testimony.

The inquiry must ensure the professor's full involvement and allow for input from parties concerned with Canada's extradition system, Neve added.

No other information about the external review was immediately available from Wilson-Raybould's office.

The RCMP arrested the professor, a Canadian of Lebanese descent, in November 2008 in response to a request by France.

In June 2011, Ontario Superior Court Justice Robert Maranger committed him for extradition despite acknowledging the case against him was weak.

The following year, then-justice minister Rob Nicholson signed an extradition order surrendering the man to France.

The Ontario Court of Appeal upheld the decisions of the lower court and the minister, and the Supreme Court of Canada declined to review the matter.

His supporters have long argued he was in Beirut — not Paris — when the attack took place and that his fingerprints, palm prints, physical description and age did not match those of the suspect identified in 1980.

In November 2014, he was sent to France, where he was held in solitary confinement up to 22 hours a day.

In January, French judges dismissed the allegations against the man and ordered his immediate release.

He is back in Canada with his wife and children. However, French prosecuting authorities have appealed his release, and a decision is expected July 6.

Foreign Affairs Minister Chrystia Freeland said she and the prime minister had advocated "very energetically'' for his return to Canada.

— With files from AdvocateDaily

© 2018 The Canadian Press