The Diab Extradition: Is this a case for assurances?

NSL, ch. 15

In June, a Superior Court of Justice judge granted an application of committal for extradition in the Hassan Diab matter.  As described by the judge, France wishes Diab's extradition for the following reasons:

 

to face trial on four counts of murder, multiple counts of attempted murder, and multiple counts involving the destruction of property. ...The charges arise as a result of a terrorist act that took place in France on October 3, 1980, on Rue Copernic in the city of Paris.  On that date a bomb blast ripped through the street, killing four people, injuring over 40 others, and causing substantial damage to a number of buildings in the area. ... The targets were the members of a nearby synagogue who were celebrating the final day of a Jewish festival known as SimchasTorah. This was an anti-Semitic terrorist act.

The extradition proceeding has been fraught and complex. The French case has generated controversy -- civil liberties groups have singled out the use of French unsourced intelligence information that, it is alleged, could be the product of torture.  Meanwhile, the crux of the French case turns on handwriting analyses that, noted the Superior Court judge, are "convoluted, very confusing, with conclusions that are suspect".  Nevertheless, in granting the application, the judge noted:

 The fact remains that this was never meant to be a trial, or a hearing regarding the guilt or innocence of Mr. Diab. Canada signed an extradition treaty with the Republic of France, who suspect that Mr. Diab is responsible for a heinous crime. They have presented a prima facie case against him which justifies his having to face a trial in that country. It is presupposed, based on our treaty with France, that they will conduct a fair trial, and that justice will be done. This decision stands for that proposition, nothing more nothing less.

Assuming it is not appealed to the Court of Appeal, the matter now goes to the minister of justice, and that official's decision could well end up back before the courts once a decision is rendered.  One issue that might arise in any review of a ministerial decision to extradite is whether this might constitute an instance where assurances should be sought from the foreign government as a condition of extradition.

Assurances, of course, are usually associated with extradition or removal to the death penalty and are now a feature of debate (and disenchantment in many quarters) in relation to removal to possible torture.  At issue in this case is whether assurances should also be sought to preserve fair hearing rights -- for instance, protections against the use of evidence procured by torture (a use, incidentally, that would put France in non-compliance with its own international obligations under the UN Convention Against Torture).  The minister is free to seek assurances of any sort under s.40 of the Extradition Act.

However, the idea that Canada might insist on fair trial assurances from another democratic government is an unusual one -- in Germany v. Schreiber, the Ontario Court of Appeal upheld a ministerial failure to seek certain fair trial guarantees from Germany.  In so doing, it cited with seeming approval the ministerial view that imposing at least some of these requirements "would amount to an improper interference with the sovereignty of Germany as regards the conduct of their criminal process."

On the other hand, in the 2002 decision of Philippines v Pacificador, the Ontario Court of Appeal upheld a challenge to an extradition order where assurances concerning a speedy trial were sought by the minister from the Philippine government, but ultimately adjudged inadequate by the court.

Extradition law has evolved since then, and France is not the Philippines -- not least it is part of the European human rights system.  Under these circumstances, whether there would be anything to be gained by seeking an assurance is an open question -- the question of admissibility of evidence would lie to be hashed out in the courts of France and possibly the European Court of Human Rights.  To assert the need for assurances, one must doubt the capacity of these bodies. (One scholar, assessing the ECHR jurisprudence on torture evidence, concludes "under recent case law of the ECtHR, the admission of torture evidence a violation of Article 6(1) ECHR since torture, as a prohibited method, is so serious that its use would render the proceedings as a whole unfair"). (Kai Ambos, "The Transnational Use of Torture Evidence," (2009) Israel Law Review 362 at 386).

Accordingly, it seems unlikely that a failure to seek and receive such an assurance would be enough to prompt a court to exercise its residual discretion and issue a stay for abuse of process, per United States v. Khadr; that is, where the requesting state has acted in a shocking manner (in that case, collaborating in the violation of the prisoner's human rights). 

On the other hand, it is hard not to read reports on France's record with evidence procurred by torture without having at least some suspicion that obtaining assurances might actually be a good idea.