Excerpts

B.C. Supreme Court Justice Ian Josephson found Ripudiman Singh Malik and Ajaib Singh Bagri not guilty of all eight criminal charges against them in the Air India ruling. The following are excerpts from his verdict. The Crown's case rested largely on the testimony of five witnesses, who Josephson ruled were not credible.

"Words are incapable of adequately conveying the senseless horror of these crimes. These hundreds of men, women and children were entirely innocent victims of a diabolical act of terrorism unparalleled until recently in aviation history and finding its roots in fanaticism at its basest and most inhumane level."

"Thorough and exacting forensic evidence was a significant factor leading to the manslaughter conviction of Inderjit Singh Reyat for his part in the construction of that explosive device. During the course of this trial, he pled guilty to the same offence for playing a similar role in relation to the Air India Flight 182 explosion."

"Now deceased, Talwinder Singh Parmar is generally acknowledged by both Crown and defence to have been the leader in the conspiracy to commit these crimes."

"This trial focused primarily on whether it has been proven beyond a reasonable doubt that Ripudaman Singh Malik and Ajaib Singh Bagri were members of that conspiracy. Despite the horrific nature of the alleged crimes, there can be no lowering of the standard of proof from that required in any criminal trial."

"Mr. Reyat's involvement in the procurement of components and the development of the bombs used in the conspiracy to blow up the Air India aircraft is not at issue in these proceedings. . . It is without hesitation that I find him to be an unmitigated liar under oath. Mr. Reyat endeavoured to reveal as little information as possible regarding the complicity of himself and others in the offences, while attempting unsuccessfully to craft a story consistent with his plea to manslaughter and his admissions of fact in that connection."

"Much of his (Reyat's) evidence was improbable in the extreme and entirely inconsistent with common sense. When caught in obvious and numerous irrationalities, he would seek refuge in memory loss, or offer tentative possibilities or guesses.

"Even the most sympathetic of listeners could only conclude, as do I, that his evidence was patently and pathetically fabricated in an attempt to minimize his involvement in his crime to an extreme degree, while refusing to reveal relevant information he clearly possesses. His hollow expression of remorse for his crime must have been a bitter pill for the families of the victims. If he harbours even the slightest degree of genuine remorse, he would have been more forthcoming."

"Proof of Mr. Bagri's guilt beyond a reasonable doubt rests upon hearsay statements for which there is no reliable confirmatory evidence. These statements were provided on a confidential basis and not under oath by a person who falsely claimed loss of memory when testifying.

"Considering the evidence as a whole, I find that the Crown has not proved its case against Mr. Bagri beyond a reasonable doubt with respect to his being a member of the alleged conspiracy or a party to the alleged offences and, accordingly, I find him not guilty on each count of the Indictment."

"Final conclusion: I began by describing the horrific nature of these cruel acts of terrorism, acts which cry out for justice. Justice is not achieved, however, if persons are convicted of anything less than the requisite standard of proof beyond a reasonable doubt. Despite what appear to be the best and most earnest of efforts by the police and the Crown, the evidence has fallen markedly short of that standard."

Mr. B was a former associate Malik. He testified that Malik asked him to carry a suitcase onto an Air India flight "to teach a lesson to the Indian government." His name is banned by publication.

From Judge Josephson's ruling:

"I conclude that Mr. B is not a credible witness for these reasons:

• "his evidence of the suitcase conversation with Mr. Malik contains information easily gleaned from the public domain;
• "he did not reveal this conversation for some 12 years after the event;
• "he harboured a powerful motive for revenge after experiencing years of what he perceived to be ongoing and significant deception by Mr. Malik leading to his financial ruin;
• "almost immediately after threatening harm to the person and reputation of Mr. Malik, he first disclosed the conversation to police;
• "he was not truthful when he testified that his motive in coming forward then was his conscience. That rather obvious deception was calculated to enhance his credibility;
• "in the past, he has provided false information under oath when it advanced his own interests."

Mr. A testified that Malik once asked him if he would carry an attaché case carrying a bomb to the Vancouver International Airport. His name is banned from publication.

From Judge Josephson's ruling:

"I also find that Mr. A was not a credible witness. The circumstances in which he came forward are highly suspicious. Having informed no one of his encounter with Mr. Malik for some 19 years, he came forward only after the evidence of Mr. B was related to him by his wife from a newspaper account.

"The incident he described in his evidence is very similar to that described by Mr. B. That Mr. Malik would approach him so directly in a public place to recruit him to carry a bomb laden attaché case to the airport is implausible in the extreme. He was a near stranger to Mr. Malik and Mr. Parmar. There was little reason to believe that he was a supporter of their cause or could be entrusted with information that, if disclosed, could completely frustrate their plans.

"There was no preliminary discussion to ascertain wherein his sympathies might lie with respect to their cause, nor any preliminary questions before disclosing the plan as to whether he might be willing to assist in some fashion.

"Mr. A's evidence is also impossible. The evidence is overwhelming that the area where he said this 1984 conversation took place simply did not exist until 1986. There was no evidence to corroborate his that Mr. Malik ever set up his stall outside the Ross Street Temple prior to the renovations."

Mr. C said Bagri confessed to having a role in the bombing by saying "we did this." His name is protected by court order.

From Judge Josephson's ruling:

"Mr. C is an individual driven by self-interest. His immigration history from the time he entered the United States illegally in 1983 until as recently as January, 2004 reveals his willingness to engage in deception and lies, even under penalty of perjury, whenever he believed it would advance his self-interest. His attempts at trial to rationalize his falsehoods on the basis that he had simply sought to better himself and his family do little to mitigate the obvious fact that he considered the truth secondary when it conflicted with that self-interest.

"In May, 1985, Mr. C engaged in criminal activity by assisting two fugitives, members of his Deshmesh Regiment, to escape from an attempted assassination of an Indian dignitary visiting New Orleans. His involvement in that incident was a motivating factor in his becoming an informant for the FBI shortly thereafter, as was his fear of deportation as an illegal immigrant, particularly after the heightened awareness caused by the New Orleans incident. Media reports in the aftermath of the Air India/Narita explosions to the effect that the Deshmesh Regiment was claiming responsibility for those incidents led Mr. C to fear being implicated and provided an additional impetus to maintain the informant relationship.

"Even though Mr. C began informing anonymously, revealing his role as an informant in the event he was subsequently detained or arrested could have assisted him in avoiding or diminishing the consequences. He in fact came to enjoy considerable assistance from the FBI with respect to his immigration status, a benefit that would only continue so long as he was perceived as a valuable source of information. This would have provided a powerful incentive to provide such information, whether entirely accurate or not. As one example, Mr. C attempted to deflect attention away from himself by informing the FBI that it had been another executive member of the Deshmesh Regiment who had arranged for the funds to procure airline tickets for the New Orleans fugitives.

"Mr. C's self-interest further manifested in his bargaining with respect to the $300,000 USD he received to testify in these proceedings. He then attempted to extract an additional $200,000 USD on the very eve of his testimony, testifying unconvincingly that these attempts had been either the result of a misunderstanding or a tactic to delay his appearance in court in order to handle a family matter in India. His entreaties for immigration assistance at the same time he was demanding this additional payment firmly belie any notion that he was motivated other than by self-interest.

"In addition, Mr. C's testimony was rife with examples of evasiveness and internal contradictions, followed by implausible explanations."

Ms. D was hired by Malik to supervise the Khalsa preschool in 1992. She testified that he told her about the roles he and others played in the bombings. Her name is banned from publication.

From Judge Josephson's ruling:

"(The confidante) described a deep relationship of love and respect that developed between her and Mr. Malik over the years. She, in essence, described a love affair that was never physically consummated. On the witness stand, she claimed to still love Mr. Malik and stated that her evidence at trial was a betrayal of that love and her promises to him."

"While assessing the manner and demeanour of a witness as a test of credibility is an exercise fraught with risks, it rightfully remains one the factors to be considered. (The confidante) had a positive manner and demeanour. She appeared energetic, intelligent, outgoing and had a pleasant manner, while exhibiting a strong will and determination. She revealed an excellent memory, relating vivid details surrounding certain events. However, she often resorted to claimed memory loss when pressed in cross-examination to explain apparent contradictions in earlier statements. Apart from occasional frustration, she appeared largely unfazed by the strong attack mounted in cross-examination."

"Surprising, however, were her adamant protestations of ongoing love, respect and longing for Mr. Malik, a man whom she claims admitted his complicity in the senseless mass murder of hundreds of complete innocents. When one adds to that her evidence of his treatment of the student, his countless acts of fraud and, ultimately, his cruel treatment and firing of her from a position that was a central part of her life, that surprise edges towards incredulity."

"Either this mature, intelligent and strong-willed person has abandoned all she believes in because of overwhelming and unreasoning emotions of the heart, or she is misleading the Court by claiming to be his loving confidante in an attempt to blunt the inevitable credibility attack based on animus towards Mr. Malik. The latter would also better provide some explanation for the apparent unlikelihood of Mr. Malik having chosen to provide her with such a detailed confession.

"Examining (the confidante's) evidence with reference to the other evidence in this case, I find that she has not been truthful with the Court and that I am unable to rely on her evidence."

Ms. E is believed to be Bagri's former lover. She testified that he asked to borrow her car to leave bags at the airport. Her name is banned from publication.

From Judge Josephson's ruling:

"Ms. E is a former friend of Mr. Bagri. Her testimony at trial was not inculpatory of Mr. Bagri and the Crown therefore seeks to rely on her hearsay statements to CSIS agent, Mr. William Laurie, earlier ruled admissible as necessary and reliable to a threshold level. In those statements, Ms. E referred to a late night visit by Mr. Bagri to her home the evening before the Air India/Narita explosions during which he sought to borrow her car. He explained that he was going to the airport but that only the bags were making the trip; he was not. At trial, however, Ms. E professed a lack of recall with respect to the timing and content of this conversation.

"In her statements to Mr. Laurie, Ms. E consistently described Mr. Bagri's visit as having occurred the evening before the Air India explosion. In her evidence at trial, however, she generally associated that event with CSIS surveillance, which placed the visit on June 9, 1985. Looking at the evidence as a whole as I must do in assessing ultimate reliability, what is troubling is that throughout her evidence and her prior statements, Ms. E never described a second late night visit by Mr. Bagri in June 1985. This anomaly would have properly been the subject of rigorous cross-examination at trial to explore the possibility of mistaken recollection or fabrication. The defence, however, was denied this opportunity because of what I find to have been feigned memory loss on the part of Ms. E.

"Of less, but nonetheless valid, concern is the lack of an entirely full record of the statements and the defence's inability to cross-examine Ms. E on the accuracy of that record. The statements were also provided following a promise of confidentiality, which, while adequately accounted for at the threshold level, is a further factor affecting the ultimate weight of the evidence.

"There is little else in the body of trial evidence to either confirm or contradict the material aspects of Ms. E's statements to Mr. Laurie.

"Thus, proof of Mr. Bagri's guilt beyond a reasonable doubt rests upon hearsay statements for which there is no reliable confirmatory evidence."