Thank you for inviting me to appear as a witness regarding your study of extradition law reform. As you may know, my spouse, Hassan Diab, was extradited to France in 2014. I have brief remarks based on our experiences.
While there is concern in our legal system about the issue of wrongful convictions, in my experience there is no such concern about wrongful extraditions. The current law is premised on the assumption that the extradited person would receive a fair trial in the requesting state and that extradition is not a trial. However, extradition to a foreign country is not a mere inconvenience. Rather, it is generally a horrific experience.
In Hassan's case he was extradited to France, where he spent over three years without trial confined to a small cell in which he did not see or interact with anyone for 20 to 22 hours per day. He rarely received visitors as we would only travel a couple of times per year given the cost. As a result, he rarely saw his children and family. He also faced a legal system that he was not familiar with, while at the same time, he was isolated, deprived of meaningful social interactions and in a precarious mental state.
In extradition the presumption of innocence is turned upside down. First, the record of the case, which is a document submitted by the requesting state, is held to be presumptively reliable and the burden is on the person sought to demonstrate that the evidence is manifestly unreliable. The threshold is so extremely high that it is unattainable no matter how flimsy the evidence is.
Second, the person sought is not entitled to disclosure of the evidence.
Third, the person sought has no automatic right to call evidence. In Hassan's case the key evidence, which the Crown attorneys referred to as the smoking gun, is handwriting analysis based on just five words written in block letters. Two French handwriting analysis experts had compared what they thought to be Hassan's handwriting from the late 1980s and 1990s with five words on the hotel card written by the suspect in 1980. Neither of the French handwriting analysis experts had to testify or be cross-examined. In fact, the law does not allow the defence to cross-examine them. Rather, their opinions, even though handwriting analysis is commonly believed to be junk science, was considered presumptively reliable. The burden was on Hassan to prove that these two reports were utter nonsense and that they were based on many documents that were not even written by Hassan but by someone else.
It is a fundamental principle of justice that the state should bear the burden of showing that its evidence is reliable. I find that shifting the burden of proof and limiting the ability of the person sought to defend himself or herself and denying them disclosure of evidence is a travesty of justice.
The current extradition law is justified by the need for expediency. However, expediency should not trump fairness. In addition, extraditions in Canada are not expeditious at all. They last years.
The other issue that is often used to defend the current extradition law is the claim of reciprocity and the need to honour Canada's international obligations. However, having an extradition law that is more just and fairer does not undermine Canada's international obligations and the rule of law. While some of those sought for extradition are guilty, the same can be said for those charged with a crime in Canada. However, this does not prevent us in Canada from demanding reliable evidence before the accused stands trial in Canada. We should have the same care and concern regarding extradition so that innocent people don't suffer needlessly.
In reforming the extradition law, I believe that four issues are critical. The evidence submitted by the requesting state should not be presumed reliable. There should be full disclosure of all relevant evidence. The person sought should be allowed—as of right—to call evidence. Extradition judges should be permitted to consider issues of fairness.
Thank you.