The case against the extradition of Hassan Diab, as laid out this week by lawyer Donald Bayne in a preliminary motion to stay the proceedings, has begun to look unassailable. Yesterday the credibility of crusading French examining magistrate Marc Trévidic, who prepared the Record of Case (ROC) upon which the deportation proceedings are based, was shredded seemingly beyond repair.
Readers need to be aware of precisely how little recourse a defendant in an extradition case has available under current legislation. Any Canadian citizen may be extradited by a treaty partner merely by establishing a prima facie case. The defendant does not have full Charter rights, no right to disclosure of evidence from the accusing party, no right to cross-examine witnesses. As Bayne described it this week, mounting a defence in such a one-sided contest is "an uphill climb."
It's not a climb, in fact, that many undertake, and still fewer manage to make. But there is precedent, as Bayne showed earlier this week, for making a Charter argument for a stay. This rests upon the integrity of the ROC submitted by the requesting state--in this case, France.
That integrity doesn't have to be proven: it is generally assumed. But what if it is possible to show that the ROC is deliberately deceptive? It is in such a case, rare in the extreme, that the extradition judge has the right to exercise a residual discretion and put a stop to the proceeding. The proposition that the certifying authority for the ROC has a duty of "fairness and good faith," and of "utmost diligence and care" in ensuring the accuracy of the document, is established in a number of precedent cases.
The prosecution will attempt to show later this week that the demonstrable flaws in the ROC are merely "inconsequential errors." Here is one: judge for yourselves whether it is inconsequential, and even if it is an honest error.
The question of Hassan Diab's passport(s) is key to the case. Why do I use a possible plural? That would be because of the contradictory evidence of the French examining magistrate, Marc Trévidic.
In the defence counsel's factum supporting the motion for a stay, Bayne points out that Trévidic certified in the ROC that Diab entered France using a false Cypriot passport in the name of "Alexander Panadriyu." He didn't have a lot of choice, because the copy of Hassan's real passport, obtained in 1981, showed no entry stamps to France.
The ROC states that the "hit team" that bombed the rue Copernic synagogue, allegedly including Diab, entered France via Madrid by train, using false papers. The assertion that Diab was using a false passport is repeated seven times.
But there's a problem. On November 12, 2008, 29 days before he certified the ROC now before the Ottawa court, Trévidic told quite a different story. He was attempting to obtain an arrest warrant for Diab through an application to the Ontario Superior Court, the first step in the extradition process. And in that application, he stated that the "hit team" has used their real passports.
Well, which was it? If real passports were used, then Diab is in the clear--no entry stamps to France. It is speculated by a source close to the case that Trévidic used the "real passport" theory in this instance because it sounded more impressive ("we have his passport and it shows he entered France"). Trévidic knew that, under current law, he didn't have to produce the passport to a Canadian judge, and may have thought that a different judge would preside over the extradition hearing itself. Perhaps unluckily for him, however, Justice Robert Maranger was the judge in both instances.
But it gets worse. In the substantial ancillary material attached to the ROC, a report turned up from a French police officer who had stopped the mysterious "Alexander Panadriyu" for an ID check.* The officer had been thorough enough to list the stamps found in that false Cypriot passport--very few, as it turns out, because the passport was only four months old. Besides, a fake passport would have only the minimum number of stamps inserted to allow it to pass for the real thing.
And guess what? He found an entry stamp through France's Lyon airport--not one for an arrival by train through the Spain-France border.
This meant that both of Trévidic's theories were bunk--and he had to have known it. To put it bluntly, he used whatever tale he thought would work best in the circumstances.
The case continues. It will be interesting, to put it mildly, to see how the prosecution copes with this clear evidence of malfeasance that goes to the very core of the extradition case.
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*I am now reliably informed that much more than an ID check was involved. The French police officer examined Panadriyu's passport after he was arrested for trying to shoplift pliers from a Paris hardware store. Panadriyu was questioned and released after signing a statement admitting to the attempted theft.
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