An Ottawa sociology professor says both an Ontario judge and the federal justice minister made legal errors in deciding he should be sent to France as a suspect in a decades-old terror bombing.
Hassan Diab heads to the Ontario Court of Appeal on Monday to argue their reasoning was flawed and should be overruled.
French authorities suspect Diab, 59, was involved in the anti-Semitic bombing of a Paris synagogue in 1980 that killed four people and injured dozens of others. It was the final day of a Jewish festival known as Simchas Torah.
In June 2011, Ontario Superior Court Justice Robert Maranger committed Diab for extradition to face French authorities despite acknowledging the case against him was weak.
In April of last year, then-justice minister Rob Nicholson signed an extradition order surrendering Diab to France.
Diab denies any role in the deadly attack, saying the unwavering moral principle throughout his life has been promoting equality and respect for all.
The RCMP arrested Diab, a Canadian of Lebanese descent, in November 2008 in response to a request by France. He had worked as a contract instructor at two Ottawa universities before his world was turned upside-down.
During the lengthy and fiercely argued Ontario Superior Court case, Maranger examined elements of France's request including eyewitness descriptions, composite sketches and handwriting on a hotel registration card allegedly penned by Diab – evidence his lawyers vigorously disputed.
In his ruling, the judge concluded France had presented "a weak case" that makes the prospect of conviction "in the context of a fair trial, seem unlikely." But he said Diab must be sent to France under the terms of Canada's extradition law.
In a brief filed with the appeal court, Diab argues that a flawed handwriting analysis and other evidence that at best creates a degree of suspicion amounts to a case that does not allow committal for extradition.
Further, Diab says Nicholson made several mistakes, including opting to surrender him even though France has not yet decided whether to put him on trial for the bombing.
The federal government argues that Maranger correctly ruled he could not refuse to commit Diab simply because the evidence against him is weak.
Federal lawyers also say Diab is the subject of a French arrest warrant and "there is no requirement" that authorities must also have made a decision to refer his case to trial.
In addition, the government contends, the minister was entitled to defer to French judicial authorities concerning protections of an accused under French law. "Having entered into an extradition treaty with France, it is to be assumed that Canada considers the French criminal justice system to be a fundamentally just one."
The Court of Appeal has set aside two days for the Toronto hearing, and is likely to take several weeks before handing down a judgment. Whatever the outcome, either party may end up appealing to the Supreme Court of Canada.
As a result, Diab could remain in Canada for some time.
Donald Bayne, one of Diab's lawyers, has expressed concerns that France is relying on secret intelligence in its case, which would leave his client unable to defend himself should he eventually stand trial.
In his brief, Diab argues it is plausible the intelligence France will rely on was derived from torture.
The federal government counters that the claim is "rooted in speculation" and that Diab would have the opportunity to challenge the admission of intelligence-based evidence in France, including on the ground that it was obtained by torture.