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Report Is Organized Independent Review of the Extradition of Dr. Hassan Diab Prepared by: Murray D. Segal, LLB, BCL May 2019 Information contained in this publication or product may be reproduced, in part or in whole, and by any means, for personal or public non-commercial purposes, without charge or further permission, unless otherwise specified. You are asked to: exercise due diligence in ensuring the accuracy of the materials reproduced; indicate both the complete title of the materials reproduced, as well as the author organization; and indicate that the reproduction is a copy of an official work that is published by the Government of Canada and that the reproduction has not been produced in affiliation with or with the endorsement of the Government of Canada. Commercial reproduction and distribution is prohibited except with written permission from the Department of Justice Canada. For more information, please contact the Department of Justice Canada at: www.justice.gc.ca. © Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2019 ISBN 978-0-660-31479-2 Cat. No. J2-492/2019E-PDF 1 Table of Contents Executive Summary ........................................................................................................ 5 The Extradition Process in Brief ..................................................................................... 5 Concerns about Dr. Diab’s Extradition .......................................................................... 7 My Review ...................................................................................................................... 7 My Conclusions in Brief.................................................................................................. 8 Overview ........................................................................................................................... 10 The Scope of the Review.............................................................................................. 11 The Review Process ...................................................................................................... 12 Summary of Findings .................................................................................................... 13 Was the law followed? Were IAG counsel’s approaches appropriate? ................ 13 Are there opportunities for improvement? ........................................................... 14 How the Report is Organized ....................................................................................... 15 Part A: Extradition Law and the Extradition Process in Canada ..................................... 16 1. The Extradition Process ........................................................................................... 17 Basic Principles of Extradition ................................................................................. 17 Reciprocity and Comity ........................................................................................ 17 Double Criminality ............................................................................................... 18 Key Stages of the Canadian Extradition Process .................................................... 18 Stage 1 - Issuance of “Authority to Proceed” ..................................................... 18 Stage 2 – Extradition Hearing .............................................................................. 19 Stage 3 - Surrender Decision ............................................................................... 20 Who is an “Extradition Partner”? ............................................................................ 22 Appeal Rights ............................................................................................................ 22 2. Evidence Required for Extradition (the Record of the Case) ................................ 23 Summary of the Evidence of Criminal Conduct ...................................................... 23 Identification Evidence ............................................................................................ 24 2 Certification .............................................................................................................. 25 3. The Restrained Role of Extradition Judges and the Process for Challenging the Record of the Case ........................................................................................... 25 4. Disclosure in Extradition Proceedings .................................................................... 27 Part B: The Chronology of the Case ................................................................................. 30 1. The Investigation in France ..................................................................................... 30 2. The Pre-Arrest Involvement of the Canadian Authorities ..................................... 33 Requests for Mutual Legal Assistance .................................................................... 35 The Initial Handwriting Reports .......................................................................... 36 3. An Overview of Dr. Diab’s Extradition Proceedings in Canada ............................. 37 4. The Arrest, Bail Hearing, and Authority to Proceed .............................................. 40 Bail Proceedings ....................................................................................................... 40 Formal Request for Extradition ............................................................................... 41 Authority to Proceed ............................................................................................... 42 5. The Record of the Case ........................................................................................... 42 The Translation of the Record of the Case ............................................................. 43 6. Defence Efforts to Undermine the Reliability of Evidence in the ROC ................. 45 The Handwriting Analyses ....................................................................................... 45 The Use of Intelligence Information ....................................................................... 48 7. IAG Communication with France ........................................................................... 49 The November 21, 2009 Letter ............................................................................... 49 8. Decision on the Admissibility of Defence Evidence ............................................... 51 9. Efforts by France to Obtain a New Handwriting Report and Updates to the Court ............................................................................................................. 53 The Attorney General’s Adjournment Application ................................................. 53 Results of the Distal Prints Comparison .................................................................. 54 The New Handwriting Analysis ................................................................................ 55 The Findings of the Bisotti Report ........................................................................... 56 10. The Abuse of Process Applications ...................................................................... 57 3 11. Admissibility of Defence Experts Challenging the Reliability of the Bisotti Report ......................................................................................................... 58 12. The Committal Hearing ......................................................................................... 58 Bisotti Report is Flawed but not Manifestly Unreliable ......................................... 59 13. Charter Application for Exclusion of Bisotti Report............................................. 60 14. Decision on Committal .......................................................................................... 60 15. Submissions to the Minister and Decision to Order Surrender .......................... 63 16. Appeal of Committal and Judicial Review Application ........................................ 65 17. The Proceedings in France .................................................................................... 67 18. The Involvement of Global Affairs Canada and the IAG After Surrender .......... 71 19. Calls for a Review .................................................................................................. 73 Part C: Analysis, Response and Conclusions ................................................................... 75 1. Was the law followed in the conduct of the Diab extradition? ............................ 75 2. Do any particular approaches taken by IAG counsel in the Diab extradition require improvement or correction going forward? ............................................. 80 The Role of Crown Counsel in Extradition Proceedings ......................................... 81 a. IAG Organization and Roles and the Potential for Conflict of Interest ............. 83 Advisory and Litigation Roles .............................................................................. 84 Roles at the Committal and Surrender Stages ................................................... 85 The Importance of Consistent Policies and Procedures .................................... 85 b. The Quality and Usefulness of the Record of the Case ..................................... 86 The Timing of a Request for Extradition ............................................................. 86 Advice on the Contents of the
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