Air India Trial Ends in Acquittal

Air India Trial Ends in Acquittal

"IN THE EARLY morning hours of June 23, 1985, two bomb-laden suitcases detonated half a world apart," began B.C. Supreme Court Justice Ian Bruce Josephson, reading a verdict that set two men free and left hundreds more shackled to a 20-year-old tragedy that now seems beyond hope of resolution. At the end of an hour-long summation of his judgment - delivered in a surreal, blast-resistant room from behind bulletproof windows - the packed Vancouver courtroom was awash in conflicting emotions of relief and despair. Then, with the collapse of the prosecution complete, came angry calls for a public inquiry to deliver, if not justice, at least accountability for what many touched by the tragedy consider a botched investigation into a preventable act of terrorism.

Just one row of seats separated families of the 331 people killed in those two explosions from relatives and supporters of the two men prosecutors had labelled mass murderers: Ajaib Singh Bagri, 55, a Kamloops millworker and fiery orator, and Ripudaman Singh Malik, 58, an unbending Sikh fundamentalist, whose wealth and influence touches the educational, spiritual and business affairs of thousands of Sikhs throughout B.C.'s Lower Mainland. After Josephson said the RCMP and the prosecution's case fell "markedly short" of proof beyond a reasonable doubt, supporters of Malik and Bagri responded to the not guilty verdicts with steepled hands, bows and grins. In the rows behind came gasps from the other solitude. "Bullshit," muttered one person. Natasha Madon of North Vancouver, just five when her father, Sam, was murdered, fell sobbing into the arms of her mother, Perviz Madon. Rattan Singh Kalsi of London, Ont., leaning on a cane, pulled out a picture of his 21-year-old daughter, Indira, a stunning beauty killed when Air-India Flight 182 slammed into the Atlantic off the Irish coast. "This is my loss," he said, barely containing his anger. "In God's court, a higher court above this court, they will be punished one day."

The verdict - reached after a two-decade, $100-million RCMP investigation and almost 350 days of court time - freed Bagri and Malik after more than four years in jail. It resolved little else. The judge concluded only that the two bombs - detonated an hour apart, one over the Atlantic, the other at Tokyo's Narita airport - were loaded on Air-India flights in Vancouver as part of a conspiracy of revenge against the Indian government. The plot, the judge said, was rooted "in fanaticism at its basest and most inhumane level."

Beyond that, the trial produced only questions: If not Malik and Bagri, who ran the conspiracy? Was it ineptitude, indifference or racism that led to such a flawed investigation? Should the case - as frail, damaged and incomplete as the parts of the recovered jetliner the prosecution assembled in a secret warehouse - have even gone to trial? Above all, what happens now? Is there value to a public inquiry after 20 years? Are there lessons to be learned that would justify the expense and the pain of reopening the past? There is much to suggest that there are. Among the reasons for an inquiry:

THE FAMILIES

Quite simply, many of the relatives of those who died aboard Flight 182 want one. They regrouped within hours of the verdict, dried their tears, and, in a poignant meeting with the media, demanded an inquiry. One by one they stood before a microphone and politely spelled their names. Many broke down describing the enormity of their loss.

Susheel Gupta, an Ottawa lawyer, 12 when his mother was killed, read a prepared statement on behalf of an association of victims' families. The mass murder is the result of a systemic failure every bit as profound as the Westray mine disaster, the tainted blood scandal or the Walkerton water crisis, all topics of public inquiries or royal commissions, he said. He listed issues that need further investigation: why surveillance on suspects was suspended just days before the tragedy; why unaccompanied baggage was processed, screening systems weren't functioning and communication broke down between the Canadian Security Intelligence Service and the RCMP. Hundreds of hours of CSIS wiretaps recorded in the months surrounding the tragedy were erased before they could reach the RCMP - an action that has never been adequately explained. "Most of the failures of the systems were not even touched in the criminal trial," Gupta said. An inquiry, he added, may be the only way to prevent a recurrence of past mistakes.

There is another nagging issue: a kind of genteel Canadian racism that has plagued this tragedy from the beginning and profoundly wounded many Indo-Canadians. In the immediate aftermath of the crash, then prime minister Brian Mulroney called India's prime minister to offer condolences, although the huge majority of passengers on that plane were Canadian citizens. "Had this been a tragedy that affected mainstream, white, Anglo-Saxon Canadians," said Lata Pada, a Toronto dancer who lost her husband, Vishnu, and two daughters, Brind and Arati, "I think the response would have been very different." And it was. After the terror attacks of Sept. 11, 2001 in the U.S., new anti-terrorism laws were rushed through Parliament.

GOVERNMENT INACTION

Liberal Deputy Prime Minister Anne McLellan was quick - too quick - to reject an inquiry. She said, within minutes of the judgment, there was nothing new to be learned and little the trial hadn't covered - a sweeping conclusion for someone yet to read the ruling. Backtracking later, she offered a lame compromise: she'd meet with the families, along with representatives of CSIS and the RCMP, to explain all that has changed in the past 20 years. That strategy would have saved any number of governments and bureaucrats from a world of hurt. The people of Walkerton, Ont., could have chatted over tea about how their water system was now right as rain. And Paul Martin could have avoided the grief of the Gomery inquiry with a televised fireside chat about how the Quebec sponsorship scandal was the mistake of a past government. Lesson learned. No hard feelings.

There were perfectly reasonable excuses for not investigating the circumstances of the worst terrorist attack in Canadian history: the need not to interfere with the police investigation, the need to wait until lawsuits were settled, the need to let the court finish its deliberations. Similar circumstances applied in the U.S. after the 9/11 attacks, but an independent commission has already investigated the disaster and its report is a national bestseller. In Canada, the families don't buy that it's too late for an inquiry. "Enough of the stalling job," says Sam Madon's widow, Perviz, "just give it to us, for God's sake."

INTELLIGENCE LAPSES

The decision by CSIS to erase wiretap tapes of key suspects from the period before and after the bombing is bizarre in the extreme. Among the evidence wiped out are calls from Talwinder Singh Parmar, considered the likely mastermind of the plot, calls from the two men just acquitted, Malik and Bagri, and interviews with a key witness. A subsequent CSIS review of the action found the erasures were intended to protect personal privacy and confidentiality of sources - a finding so nonsensical it has only fanned ideas of a larger cover-up or conspiracy.

As troubling, security agencies all but ignored the virulent strain of Sikh militancy growing in Canada, the use of Sikh temples to recruit and finance extremists, and the rampant thuggery directed at moderates. Bagri's infamous call for the revenge killing of 50,000 Hindus, delivered before a screaming crowd at New York's Madison Square Garden, shows the inflamed passions in the months before the bombing.

LESSONS UNLEARNED

If extremism is under control, why was it necessary to build a $7.2-million bombproof courtroom for the trial?

If security and policing agencies have learned their lessons, why was a potential key witness, Vancouver newspaper editor Tara Singh Hayer, shot and left paralyzed in 1988? And how is it that, 10 years later, Hayer was assassinated at his home - an eloquent warning to other potential witnesses?

Why is the key witness against Malik in hiding in a witness protection program if the troubles of the past are truly buried?

The Crown is considering an appeal. The RCMP has vowed the investigation will continue. But nothing stemming from last week's ruling seems likely to generate fresh leads or inspire new witnesses to come forward. Few of the victims' families hold much hope for an appeal or new arrests.

Appended like an afterthought to the massive ruling is a seven-page list of the dead, including 80 children under 12 years old, and 20 entire families lost without a single spouse or child surviving to mourn their passing. For those left behind, the preceding 615 pages of legal argument and conclusion might as well be empty. They lack the one thing that may have offered solace: the names of those who believed the mythical state of Khalistan was worth the price of 331 innocent lives.

If there cannot be justice for them, it's time for accountability.

Why Does CSIS Destroy its Wiretap Tapes?

TWO DECADES after the Canadian Security Intelligence Service erased wiretap recordings that might have been key evidence in the Air-India case, CSIS's standard procedure is still to destroy what it calls "intercepted" conversations. CSIS files only summary reports from its electronic eavesdropping - then gets rid of tapes or transcripts within 30 days. Why not save the raw data that might some day help police or prosecutors? "We don't collect evidence," CSIS spokeswoman Barbara Campion told Maclean's. "The goal of the service is not to bring people to court. Our goal is to advise the government of threats to the security of Canada, and ultimately to neutralize those threats."

That adherence to CSIS's mandate as a civilian security service - not a law enforcement agency - sometimes makes its relationship with police hard to grasp. Experts generally agree that, in the years since the 1985 Air-India bombing, CSIS and the RCMP have learned to work much more closely together. Campion says CSIS now immediately passes on to police any information it gathers that might be useful in criminal investigations. But when it comes to wiretaps, she says CSIS policy remains essentially the same as in the mid-1980s, when it erased hundreds of hours of tape involving Talwinder Singh Parmar, the suspected mastermind of the Air-India bombing later killed in custody by Indian police.

The loss of those tapes is one of the most controversial aspects of the investigation that led to last week's acquittal of two men. But it's far from clear that similar information collected today wouldn't also be lost. The Canadian Security Intelligence Service Act directs CSIS to gather and retain information on threats to Canada's security only as "strictly necessary" - a limitation meant to protect the civil liberties and privacy of Canadians. "The act doesn't tell us to destroy [wiretap tapes or transcripts] within 30 days," Campion says. "But the way we've interpreted the 'strictly necessary' provision, and the way our minister has agreed with our interpretation, and the way past ministers have directed us to interpret it, is to destroy the raw data after the final report is made."

That description of CSIS's operating policy surprised Wesley Wark, a security intelligence expert at the University of Toronto's Munk Centre for International Studies. "If that's what they are doing, there is something seriously, seriously wrong," Wark said. "This is a critical issue."

Campion said that in rare circumstances, a senior CSIS official might agree to a request from police for a particular wiretap recording not to be destroyed. "It's definitely an exception," she said. "It's certainly not the norm that we retain anything." And she stressed that CSIS would pass this material along to police only under strict conditions - including the understanding that police would use the information in their own investigations, not as evidence at trial. "Say we share information with the RCMP," she said. "We would ask them not to disseminate it further without our permission. And further dissemination would certainly include use in court."

JOHN GEDDES

A Two-decade Murder File

JUNE 6, 1984: Indian forces attack the Golden Temple in Amritsar, the holiest Sikh site, claiming it's being used by militants. Sikhs say 20,000 people are killed in attacks that day. Some extremists vow revenge.

MARCH 5, 1985: CSIS obtains a warrant for a wiretap on Burnaby, B.C.'s Talwinder Singh Parmar, leader of a militant sect that hopes to establish an independent Sikh homeland.

JUNE 4, 1985: CSIS follows Parmar and an associate, Inderjit Singh Reyat, to a forest on Vancouver Island. There is a loud bang, but CSIS does not interview the men about it.

JUNE 23, 1985: At 06:20 GMT, a suitcase destined for Air-India Flight 301 explodes in Tokyo's Narita airport, killing two baggage handlers. Less than an hour later, another bomb goes off on Air-India Flight 182, sending the aircraft down off the coast of Ireland and killing all 329 people on board. Both bombs originate from Vancouver.

NOV. 8, 1985: Parmar and Reyat are arrested and charged with weapons offences and conspiracy related to the Air-India bombings. The charges against Parmar are dropped; Reyat receives a $2,000 fine.

MAY 10, 1991: Reyat, rearrested in Britain and extradited to Canada in December 1989, is convicted of manslaughter and later sentenced to 10 years in the deaths of the baggage handlers.

JUNE 22, 1991: Tara Singh Hayer, editor of the Indo-Canadian Times, says the identities of those involved in the bombings are well known in Vancouver's Sikh community. Already partially paralyzed by an 1988 attempt on his life, Hayer is shot to death in 1998.

OCT. 14, 1992: Parmar dies in India. Police say he was killed in a gun battle, but subsequent reports suggest he died in custody.

JAN. 26, 2000: A former CSIS agent says he destroyed taped interviews with Air-India informants.

OCT. 27, 2000: Charges are laid against Sikh cleric Ajaib Singh Bagri and Vancouver millionaire Ripudaman Singh Malik for 331 cases of first degree murder, attempted murder of the passengers and crew aboard Flight 301, and conspiracy.

JUNE 6, 2001: Seven new charges are laid against Reyat in relation to the bombings, including murder, attempted murder and conspiracy.

FEB. 10, 2003: Reyat unexpectedly pleads guilty to one count of manslaughter and helping build one of the Air-India bombs. All other charges are stayed, and he is sentenced to an additional five years.

APRIL 28, 2003: The trial of Malik and Bagri begins in a specially constructed, $7.2-million, high-security courtroom.

DEC. 3, 2004: Presentation of evidence and arguments ends. The bill for the investigation and trial: more than $130 million.

MARCH 16, 2005: Saying the witnesses weren't credible, Justice Ian Bruce Josephson of the British Columbia Supreme Court finds Malik and Bagri not guilty on all counts.

KARIN MARLEY

We Can't Handle the Truth: Canada Should Realize It's 'Not Exempt from Contamination by the Rest of the World'

EVEN AFTER the deaths of 331 people in the Air-India bombings, the notion that Canada was a breeding ground for Sikh extremism remained a largely unexplored topic. The government's failure to see this as a made-in-Canada disaster was in part what prompted authors Clark Blaise and his Indian-born wife, Bharati Mukherjee, to write The Sorrow and the Terror. The 1987 book questioned the role race played in Canada's slow response, the pace of the investigation, and the dubious prospect for a successful prosecution. The authors, both Canadian citizens, followed the trial from their home in San Francisco. Blaise, reached after the verdict, called for an inquiry. "There are lessons to be learned," he said.

What inspired you and your wife to write about the Air-India disaster?

It was the chatter among the aggrieved families saying, if this had been white Canadians, would the government have been so slow and indifferent in opening up some kind of inquiry? [Prime Minister Brian] Mulroney had called the prime minister of India and expressed sorrow over the loss of Indian lives, when actually the victims were 85 per cent Canadian citizens.

The early responses were PR responses. It's about you people with your nasty civil wars. Don't bring them over here.

Do you think the government has learned anything from this tragedy?

[Laughs] Not based on the evidence. The major lesson is that Canada is not exempt from contamination by the rest of the world. You have to take seriously the possible threat to Canadian interests from events that seem to be exotic or foreign. The failure to have done that is what caused this whole thing.

In what way?

The original CSIS analysis of events was that some plot was afoot but it was going to happen in India. And that CSIS probably had time to alert the Indian officials. I think Canada always had the feeling it was the peaceful kingdom.

What's your read now on the movement for an independent state of Khalistan?

That's very much on the back burner. There's a low-fever element to it, as there is with Quebec or any other kind of fantasy breakaway movements. They flare up if given the opportunity, then they subside.

What were the motivations behind the Air-India attacks?

This kind of terrorism is about money, vanity, and it's about power. It's not about principled idealism or resistance. It's just like the IRA. It becomes a generational thing that makes money and gives you a kind of swagger.

What is your assessment of the strength of the Crown's case?

It was an incredible mess. The CSIS agent who erased all those tapes, was he or she acting alone or did they go to superiors to ask permission? CSIS was totally out of control, a totally undisciplined body that gathered information promiscuously and then decided whether it was going to use it or destroy it. The material couldn't stand the test of the rules of evidence and so, of course, the RCMP had to build a parallel case that would stand up. By that time, too much of the evidence had been destroyed, compromised and tainted.

Is there a benefit to a public inquiry after all these years?

Yes. I was shocked to read that [Deputy Prime Minister Anne McLellan] would say there may not be a benefit. Good Lord, if this had been an Anglo-Saxon loss, would anyone dare say such a thing? This is comparable, in Canadian terms, to any number of the great butcheries, tragedies and disgraces. It's incumbent on any democratic country to get to the root of it, for heads to roll, for names to be named and for collective action to be taken. Certainly CSIS and the RCMP have a lot to answer for here. If we don't have an inquiry, they're going to get away with it.

See also TERRORISM.

Maclean's March 28, 2005