Hassan Diab is a Canadian citizen who is challenging an order to extradite him to face trial in France in connection with a bombing that took place in Paris in 1980. At issue in this case is the proper legal framework to be applied at the ministerial stage of extradition proceedings when the person sought has alleged that the requesting state is relying upon torture-derived evidence.
In June 2011, the Ontario Supreme Court of Justice issued a committal order for Dr. Diab’s extradition, which permits the Canadian government to surrender Dr. Diab to the French authorities. As well, in April 2012, Justice Minster Rob Nicholson, signed the order to surrender Dr. Diab to France. Dr. Diab is seeking judicial review of these orders by the Ontario Court of Appeal and the BCCLA has been granted leave to intervene.
The BCCLA argued that if it is plausible that the evidence being relied upon was obtained through torture, the Minister of Justice should be obliged to either investigate and rebut that such a connection exists, or satisfy himself that the evidence will not be used against the person sought. The BCCLA argued that if the Minister cannot satisfy either of these requirements, the surrender of the person sought could be contrary to the principles of fundamental justice, and an infringement of the Charter’s protection of liberty and security of the person. The Minister must use his discretion in a way that is consistent with the Charter and the Extradition Act. Going through these steps would ensure that Canada balances its obligation to participate in combating international criminal acts, while insisting on concrete, practical measures to protect the fundamental rights of Canadians.
The Ontario Court of Appeal issued its judgment in May 2014, dismissing the appeal. The Court adopted the BCCLA’s position, endorsing a two-stage test requiring:
- a “plausible connection” to be shown between the evidence being challenged and the use of torture; and
- the Minister to take steps to make further inquiries in order to satisfy himself or herself that there is no “real risk” that torture-derived evidence will be used in the foreign proceeding.
Nonetheless, the Court of Appeal concluded that while the Minister may have conflated the two steps of this test, he nonetheless reasonably concluded that there was no “real risk” that France would use evidence derived from torture in proceedings against Dr. Diab.
The BCCLA is represented by Brendan van Niejenhuis and Justin Safayeni of Stockwoods LLP.
Court of Appeal for Ontario