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End Canada's unjust laws

By: 
Chantal Sundaram

December 13, 2013

Two recent hearings, part of longstanding struggles, put into question the integrity of Canada’s legal structure for the defence of basic rights and civil liberties.
 
On November 4-5 supporters gathered at the Ontario Court of Appeal in Toronto to show solidarity with Ottawa professor Dr. Hassan Diab, a Canadian of Lebanese descent unjustly accused of an act of terror in France over 30 years ago. The hearing was for an appeal of a decision by a Canadian extradition judge to allow for Dr. Diab’s surrender to France over suspicions he was involved in a synagogue bombing in Paris in 1980 based on unsubstantiated and spurious evidence. The hearing was crucial not only for Diab’s fate but for the injustice of Canada’s extradition law itself.
 
Previously, on October 25, supporters also gathered at a Federal Court in Ottawa for a ruling on the national Security Certificate imposed on Mohamed Mahjoub, of Egyptian origin, as a terrorist threat to Canada. The ruling upheld the Security Certificate as reasonable, even though Mr Mahjoub has never been charged with any crime, and even though Canadian Security Certificates were declared unconstitutional in 2007.
 
Diab and extradition law
At stake in the Diab case are concerns that extradition law undermines Canadian standards of justice, including the rights of the accused to a defense and trial. Canadian extradition law allows for an extremely low standard of evidence, and presumes the reliability of the case by a foreign state with which Canada has an extradition treaty.
 
The 2009-2011 extradition hearing presupposed that Dr. Diab was wanted for trial. But now France says that he is only wanted for questioning, a purpose inadmissible under Canadian law. The Harper government signed the extradition order regardless, surrending Diab to France, making this case very similar to one of extraordinary rendition, that is, illegal delivery of an innocent person to a foreign jurisdiction where he or she will receive mistreatment, torture or other. The possibility exists that Dr. Diab will not be tried at all in France but jailed indefinitely under French anti-terrorism laws. And even were he to eventually stand trial, reliance on secret intelligence would leave him unable to defend himself, much like Mohamed Mahjoub, subject to alleged security concerns that preclude due process.
 
Amnesty International, the British Columbia Civil Liberties Association (BCCLA), and the Canadian Civil Liberties Association (CCLA) have filed interventions on the Diab case. Lawyer Marlys Edwardh told the judges: "(The charter) requires that the court not be a rubber stamp," and based on the evidence, "A jury could never reasonably convict."
 
The case centres on conflicting handwriting analysis of a hotel registration card that supposedly links Diab to the bombing with no other evidence including fingerprints. Other evidence from French intelligence is likely derived from torture, which is why it has been excluded from Canadian hearings: the Crown eventually withdrew the intelligence-based arguments since their unknown sources cannot be cross-examined in court, as Canadian law requires.
 
The Harper government’s case relies on the argument that the extradition judge could not refuse to commit Diab simply because the evidence against him is weak. Their lawyers also argue that "there is no requirement" that French authorities must also have made a decision to refer his case to trial.
 
So much for the Charter rights of any citizen if you happen to be under an arrest warrant by a country with which Canada has an extradition treaty. There are obvious reasons why Dr. Diab in particular has been victimized in the context of Islamophobia and the war on terror, but in fact, extradition law can be used against anyone the state agrees to use it against.
 
Extradition must require real evidence: this would exonerate Dr. Diab and prevent similar travesties of justice from occurring. The supporters who gathered at the Court of Appeal know this.
 
Mahjoub and Security Certificates
So too do those who gathered to support Mohamed Mahjoub in Ottawa on October 25. Canadian Security Certificates expressly deny the right of the accused to due process: they are denied the right to know the evidence against them for security reasons.
 
The judge who upheld Mahjoub’s Certificate even issued a declaration that Mahjoub's "right to a fair trial pursuant to Section 7 of the Charter and right to be free of unreasonable search and seizure have been violated." The judge gave no reasons for his decision — to allow time for them to be scrutinized for any possible security issues.
 
Even though national Security Certificates were ruled unconstitutional under the Charter in 2007, the Supreme Court suspended the effect of its ruling for one year, allowing Harper’s government to introduce a bill to amend the security certificate process by introducing "special advocates", lawyers who would be able to view the evidence against the accused. But these lawyers are selected by the Justice minister and only have access to a "summary" of the evidence, and are not allowed to share this information with the accused, even to ask for clarifications or corrections. The Liberals supported this Tory bill, allowing to pass just days before the court-imposed deadline.
 
The night of the Mahjoub hearing in Ottawa, supporters reproduced a reading of Mathew Behrens’ adaptation of Kafka’s play “The Trial,” which counterposes excerpts from that play with real excerpts of the truly surreal Security Certificate hearings, come to be known as “Secret Trials.” The play, first read in Toronto by a cast that included Naomi Klein, reminds us of how far we have not come.
 
Defend our rights
The Charter of Rights and Freedoms was won through the real struggles of real people for due process: for the civil liberties of individuals and also for the collective struggles of movements, organizations, and unions. But in the end, they are only rights won on paper, and subject to end-runs by judges and the state that guides them.
 
The cases of Diab and Mahjoub remind us of how fragile these hard-won rights are when they are left to paper, but also remind us that outrage and support can be mobilized, and how important it is that it continue in order to defend and extend those rights in reality.
 
For more information visit Justice for Hassan Diab and Justice for Mahjoub

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