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Hassan Diab deserves better from the justice minister

published May 31, 2021

He’s doing it again!

In the Hassan Diab extradition case, as in the ongoing Extradition Act,is founded on the notion that extradition is not at base a legal or judicial issue, but rather is political in nature.

Every country in the world sees it that way, except for Canada. For example, France would never deliver up one of its own citizens to a foreign country. That’s not only because it values and protects its citizens more than Canada does, but that it recognizes that there would be major political ramifications at home were it to do so.

Why, then, did Canada send professor Diab a soft-spoken, polite Canadian academic and father of two – to France, on questionable evidence, to be held in custody for three years before being discharged – supposedly a free man?

Extradition proceedings likely to be reinstituted

And why is Lametti, if he acts in accord with his position in the Meng case, likely to reinstitute extradition proceedings, despite the obvious pitfalls of allowing the matter to go to a hearing?

Parliament has given the minister of justice and attorney general certain extraordinary powers, including the ability to exercise their discretion to stop an extradition proceeding in its tracks (under one hat) or to defer prosecution of a corporation (under the other) where proceeding to court would likely have major political ramifications. That would include blatantly selling out Canadian citizens, or devastatingly undermining the economy.

Parliament anticipated that shutting down a major corporation for illegal corporate actions could have major ramifications for the economy – in which event the deputy attorney general has a statutory duty to inform the attorney general of the advisability of deferring prosecution until the immediate political situation has been resolved. In the SNC Lavalin scandal, for example, the potential loss of 5,000 jobs in sensitive ridings was considered just such an issue.

Parliament gave the minister of justice discretion to halt extraditions and the attorney general discretion to defer prosecutions on the understanding that these powers were not to be used arbitrarily or on the basis of “personal” whim (although in extradition cases, the minister must personally order surrender (s. 40(1)). Rather, the minister’s discretion is governed by the will of the Cabinet or Privy Council – including the prime minister. Pressure up, pressure down.

Thus, the deputy attorney general did her job when she informed one of her two bosses – Attorney General Jody Wilson-Raybould – of her concern that failing to defer prosecution of SNC Lavalin might lead to an economic setback and political backlash.

The deputy also fulfilled her duty to inform her other “boss” – the clerk of the Privy Council – of her concerns, in accordance with the chain of command in the civil service.

Things went haywire for Trudeau

This is where things went haywire for Justin Trudeau. Rather than seeking direction from the Privy Council or the Cabinet or the PMO, Wilson-Raybould took it upon herself personally to exercise her discretion not to defer the SNC Lavalin case. She did not see the larger political picture, as her deputy had – especially where a possible loss of seats in Quebec was concerned.

Their well-publicized confrontation in the fall of 2018 led Trudeau to retreat into his office to lick his wounds.

Hard on its heels came the Meng case, once again a complex situation demanding exercise of discretion, this time by Wilson-Raybould acting in her capacity as minister of justice.

Had the deputy minister of justice been doing his job, he and his lackeys in the International Assistance Group would not have rubberstamped the U.S. request for the provisional warrant of Meng in Vancouver en route to a Mexican trade fair. The U.S. request was not only arbitrary, it was obviously politically motivated by U.S. technology giants vying for U.S. hegemony in the 5G sector.

Suffice to say that the then-minister of justice, stung by the anaphylactic response of the PM and clerk of the Privy Council to her refusal to defer the SNC Lavalin case, sat on her hands when it came to exercising discretion in the Meng case. For the harried prime minister, it must have come as another “Oh no!” moment.

Then, while in Argentina, he saw an opening: Why not invoke the Rule of Law? Yes! Canada is a country of the Rule of Law! Let the courts decide.

Wrong idea about what the ‘rule of law’ means

Once Wilson-Raybould got the axe, Lametti jumped into the hot seat. “Yes! Rule of Law! Let the courts decide!” he parroted, without giving much thought to the world of economic hurt that would be generated by poking the tiger – and by failing to act in accordance with his statutory discretion.

Now, in the Diab case, he once again improperly invokes the Rule of Law, failing to recognize that in extradition matters, the courts act only in an advisory capacity. As soon as the minister has the courage to exercise his discretion to say “enough is enough” in an extradition case, the extradition is over, because under s. 23 of the Act, the judge is then compelled to discharge the person facing extradition.

Lametti has the power, indeed the obligation, to reject any renewed extradition request from France, where Hassan Diab is concerned.

France has proven to be an untrustworthy extradition partner, claiming to have evidence where there was none, claiming to be ready for trial when they weren’t. They lied. And as a consequence of their dishonesty, Dr. Diab spent three years in a French prison before being set free by a court of appeal.

The Minister of Justice seems to think that he can retrace in the Diab case the arbitrary template he used to proceed with the Meng hearing – in the hallowed name of the Rule of Law.

That’s just disgusting.

  • Dr. Gary Botting is author of several books on extradition, including Halsbury’s Laws of Canada: Extradition; Canadian Extradition Law Practice; Extradition between Canada and the United States; and Extradition: Individual Rights vs. International Obligations.