In accordance to an old joke between attorneys, in an extradition case there is usually only a single strategic determination to make — window or aisle. This is not also far from the truth of the matter. In the spirit of international co-operation, extradition is intended to be effective, with a meaningful thought of guilt or innocence largely deferred to trial in the international point out. The defence has really constrained ability to prevent the consumer from involuntarily boarding a airplane.

The a short while ago concluded lawful ordeal of Hassan Diab has exposed some troubling implications of this streamlined method. Diab, originally from Lebanon, was a lecturer at the College of Ottawa. He had been here for numerous years and is a Canadian citizen. In 2008, French authorities sought his extradition since they suspected he was the mysterious human being at the rear of a 1980 bombing outdoors a Paris synagogue. The proof in opposition to him was skinny, at ideal. The most contentious product was a handwriting analysis that purportedly matched Diab’s handwriting to that of the suspected offender on a hotel registration card. The soundness and validity of this analysis was strongly criticized by a number of specialists retained by the defence.

Immediately after an unusually lengthy committal hearing, the extradition judge seen the case in opposition to Diab as “weak” and regarded as conviction to be “unlikely.” Nevertheless, since the applicable take a look at does not turn on the energy of the prosecution’s case, the judge concluded that he was certain by legislation to commit Diab for extradition. A lengthy determination from the Ontario Court docket of Charm in 2014 verified this determination and upheld the surrender get of Rob Nicholson, then the federal minister of Justice. Diab was sent to France, where he languished in solitary confinement for 3 years. Previous thirty day period, Diab was last but not least released from custody and returned to Canada, never having in fact faced trial. Our extradition process seems to have enabled the extended and pointless detention of an innocent guy.

The case is troubling not since the Canadian courts obtained it improper. Relatively, the conclusions committing Diab for extradition appear to me to have faithfully applied Canadian extradition legislation. As Diab and his law firm Don Bayne have eloquently argued, it is the extradition legislation itself that is need of reconsideration.

Our extradition process is premised on international comity and is created to deliver up the human being sought to the requesting point out with realistic velocity and effectiveness. It presumes that nations with whom Canada has signed extradition treaties can be dependable to keep a good trial there is appropriately no need to pre-figure out the person’s guilt or innocence in Canada right before sending them abroad. The Crown, acting on behalf of the requesting point out, needs only to reveal a prima facie case, and it can do so by a summary of proof it expects to tender at trial alternatively than presenting up the proof itself. After that low bar is satisfied, the court’s role is fatigued and it is up to the minister of Justice to training her broad discretion to “surrender” the human being for extradition.

Granted, the Supreme Court docket in Ferras has held that a court can refuse committal on the basis of proof that is “manifestly unreliable.” But this jurisdiction has been interpreted narrowly. Shortly following the Court docket of Charm dismissed Diab’s appeal, the Supreme Court docket of Canada split sharply in the case of M.M. v. U.S.A., where a mother was sought by the point out of Georgia for kidnapping her small children. She claimed that she fled with her small children to shield them from their abusive father. Underneath Canadian legislation, this would have supplied her with a defence. Underneath Georgia legislation, it wouldn’t. A the greater part of the court however upheld her extradition in conditions the dissent labelled “Kafkaesque.”

Extradition legislation has to grapple with a rather complicated rigidity. On the a single hand, it must be complicated to forcibly eliminate anyone from their individual country. Immediately after all, a single of the fundamental incidents of citizenship, mirrored in s. 6 of the Constitution, is the proper to remain put. On the other hand, Canada owes it to other civilized nations to co-run with realistic requests and not develop into a harmless harbour for fugitives.

I acknowledge that this is a hard equilibrium to get proper. But I assume Diab and Bayne are proper that the equilibrium has swung also far in favour of facilitating extradition without having regard to the excellent of the proof or the conditions in which it was collected. Several nations — like France, as it happens — refuse fully to extradite their individual citizens and have not develop into pariah states. With no adopting that posture, we can even now guarantee that we don’t deliver our citizens abroad on conditions as flimsy as the a single in opposition to Diab.

Just one way to do this would be to adopt a additional sturdy typical at the front conclusion: As a substitute of asking regardless of whether there is some proof in opposition to the accused, we could involve the court to figure out regardless of whether there is proof on which a realistic jury could convict.

With no turning extradition hearings into total-fledged trials, we could even now involve the requesting point out to reveal that they have proof on which, in the view of an extradition judge, a trier of fact could safely enter a conviction.

Diab’s case implies that the perils of a lessen threshold are just also fantastic.