April 18, 2016

By Email

The Honourable Jody Wilson-Raybould

Minister of Justice of Canada
Jody.Wilson-Raybould@parl.gc.ca
Dear Minister Wilson-Raybould:
Re: Hassan Diab case and protection of Canadian citizens
The Ontario Civil Liberties Association is deeply concerned about a lack of statutory
and judicial protection of Canadian citizens, which has been made evident in the
on-going case of Dr. Hassan Diab.
Canadas Extradition Act, 1999 admits evidence not admissible under Canadian
law, which can be used by a foreign country to prosecute and imprison a Canadian
citizen.
As a partial remedy, the Supreme Court of Canada has directed (Ferras):1
For a person sought to receive a fair extradition hearing, the
extradition judge must be able to evaluate the evidence,
including its reliability, to determine whether the evidence
establishes a sufficient case to commit.
The extradition judge in the Diab case chose not to give effect to his determination
about reliability and sufficiency of the evidence, thereby disregarding his Charter
obligation.2
This was compounded by the Court of Appeal for Ontario, which rebuffed the
proposition that there is a Charter obligation not to extradite someone where there
is the potential that unsourced intelligence reports will be used against the person
at the persons trial in the requesting state.3

United States of America v. Ferras; United States of America v. Latty, [2006] 2 SCR 77,
2006 SCC 33 (CanLII), <http://canlii.ca/t/1nzc3>, (Ferras), at para. 41.
2 Attorney General of Canada (The Republic of France) v. Diab, 2011 ONSC 337 (CanLII) ,
<http://canlii.ca/t/flqqb>, para. 195; and see Ferras, para. 42.
3 France v. Diab, 2014 ONCA 374 (CanLII), <http://canlii.ca/t/g6w4d>, paras. 208-209.

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The Supreme Court of Canada chose not to review the Court of Appeals decision, despite a clear
divergence between the courts of appeal of Ontario and British Columbia regarding the
interpretation of Ferras.4
Dr. Diabs protracted ordeal started when he was arrested in Canada in 2008. He has now been
in pretrial detention in France for the past 17 months. He was extradited when his Canadian wife
was pregnant with their second child.
This is an inhuman and indecent situation. The OCLA asks the Canadian government to intervene
for the release and return to Canada of Dr. Diab, and to petition the French government not to
use evidence that would be inadmissible in a criminal trial in Canada.
In the more general context, the OCLA observes that Canada has entered a regime where natural
justice rights are structurally denied by allowing substitutes for sourced, fully disclosed, and fully
testable evidence in cases that lead to deportations and imprisonment or worse. Intelligencebased information is, in these contexts, often nothing more than a states accusations, where the
burden shifts to disproving the accusations taken at face value. This is an immoral statutory reality
presently existing in Canada. The OCLA asks that it be corrected.
As an example, the OCLA finds that, in the circumstances of this case, the Court of Appeal for
Ontarios statement:
We do not think there should be a categorical exclusionary rule against
resort to intelligence-based information in these kinds of situations. To
impose such a rule would effectively eviscerate the ability of Canadian
and international authorities to bring terrorists to justice because the
evidence in such cases is very often sourced through international
intelligence agencies.
is contemptuous of the principles of natural justice, and gives a free hand to governments to
imprison any person they deem to be a terrorist.
Unfortunately, Canadian courts have shown their flexibility regarding the foundational principles
of justice. It is therefore necessary for government to enact legislation that enshrines these
principles without compromise, rather than resort to allowing persons to be persecuted in the
absence of the universally established safeguards. This is especially true in the modern context
of geopolitical machinations and terrorist responses.

See: United States of America v. Graham, 2007 BCCA 345 (CanLII), <http://canlii.ca/t/1rvr9>, paras. 19
to 30.

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Yours sincerely,

Joseph Hickey
Executive Director
Ontario Civil Liberties Association (OCLA) http://ocla.ca
613-252-6148 (c)
joseph.hickey@ocla.ca
Cc: Hassan Diab Support Committee (diabsupport@gmail.com)