IN DEPTH: AIR INDIA|
Air India: Reasonable doubt
CBC News Online
From the National, May 6, 2005
Ajaib Singh Bagri [left] (CP Photo/Chuck Stoody) and Ripudaman Singh Malik (CP Photo/Richard Lam)
Reporter: Terry Milewski
They've lived for decades with pain and loss, seen the two men accused of killing their families walk free, and with no appeal of the Air India verdict, seen the fight in court come to an end. The Crown has told the victims' families the judge made no error in law, but many question whether he made an error in judgment.
"Not guilty... not guilty... not guilty."
The judge's was decision greeted by gasps of disbelief. It's hard to forget the reaction of the victims' families.
Eddie Madon lost his father.
"Let me start out by saying how devastated I am and we all are that the true perpetrators of this crime are free men today. They have made yet another mockery of the Canadian justice system," Madon says.
Mary-Anne Lougheed lost her brother.
"I feel this is a victory today, a victory for terrorism in Canada," Lougheed says.
Sanjay Lazar lost his entire family.
"Today once again we have lost our families all over again, this time to the Canadian justice system," Lazar says.
The verdict was a shock to many who followed the trial closely. Some of the families listened as the witnesses described detailed confessions by both of the accused.
One accused was Ripudaman Singh Malik, a wealthy businessman who bankrolled Sikh militants. The other was Ajaib Singh Bagri, a preacher who called for a massacre of Hindus.
"I lost my daughter, 21-year-old daughter," Rattan Singh Kalsi says. "This is a small court. There is another higher court, God's court. They will be punished a little later."
"Today's verdict flies in the face of what we believe Canada to be, a just society," Lota Pada says.
Rattan Singh Kalsi holds up a photo of his daughter
It was not just the families who felt the legal system had failed. A poll by Ipsos-Reid found that 68 per cent of those who followed the case disagreed with the verdict. Only 32 per cent agreed with it. Faith in the justice system seemed to be shaken.
That feeling that "we were robbed" is remarkably widespread in Canada's biggest criminal case. For the judge, of course, it was a matter of reasonable doubt. He said the evidence fell markedly short of that standard. For the families, though, that doubt only arose because so much of the evidence, including all of the key evidence, was either discarded or ruled out or was never heard at all.
Then prosecutor, Geoff Gaul, announced, "will not appeal the acquittals."
The prosecution team said the judge was legally entitled to do what he did, even if the Crown doesn't agree with him. Still, that leaves a question. If Malik and Bagri are innocent, who did it?
Ever since the verdict, the RCMP have insisted that it did have the right suspects and that their witnesses did tell the truth.
Sergeant John Ward speaks for the RCMP. "We are very confident of our case," Ward says. "We stand behind our case today as we did before the verdict. We stand behind the witnesses that we presented. We were comfortable with them, and we're very proud of the work that they've done.
But we cannot tell you who those witnesses are.
The judge calls them Ms. D, Mr. C, Ms. E, and he has banned publication of their names because of death threats against them. He believes they're in real danger.
But in his high-security courtroom, Mr. Justice Ian Bruce Josephson rejected nearly everything else those witnesses said including the key witness he calls Ms. D.
Ms. D is still in witness protection. She testified that she had death threats from friends of Ripudaman Malik. She used to work for Malik, running the daycare here at his school, the Khalsa School in Surrey. Ms. D said that she loved Malik and that he confessed to her here at the school, but the judge did not believe it.
Among other things, he said she could not have loved a man who committed such a crime. He said "Surprising were (Ms. D's) adamant protestations of an 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."
Susheel Gupta, a federal prosecutor whose mother died in the bombing, disagrees.
"I watched that testimony. I was in the courtroom to watch that," Gupta says. "She held up very strongly in court. In fact, she by giving that testimony, has given up a lot of her life, has gone into witness protection, minimal chance now to see her children. I think that testimony was very credible."
Lata Pada lost her husband and two daughters in the bombing. She believes Ms. D could and did love Malik despite what she knew. "What had she to gain? Absolutely nothing," Pada says. "How many women visit their husbands, their lovers in prison knowing that they have committed a crime? You can see the evil in a person and yet love them despite that, and her declarations of love for Mr. Malik were completely misread. But every person that was there who witnessed this knew that this was a woman speaking the truth."
But the judge disagreed.
"He did, and that's his prerogative and it's our prerogative to challenge him on that," Pada says.
Challenging judges, though, is not easy and now the prosecution team has decided not to try.
One of the major problems the prosecution faced in this trial was some of their most compelling evidence was never really evidence at all.
In fact, in one case, the witness was murdered and his story ruled inadmissible before the trial even began. The saying goes that "dead men tell no tales" and that was true for the publisher Tara Singh Hayer. He was shot and disabled after saying in print that Bagri had bragged about his role in the bombing. Hayer then gave the RCMP a series of sworn statements saying Bagri gave details about how the bombing was done and why.
But Hayer was shot again, fatally, before he could testify. And he was threatened. Why?
Sukminder Cheema is a former Sikh activist who told police he was present when the plot to kill Hayer was discussed.
"Because he was testifying in the Air India bombing," Cheam says. "He was target long time ago, and finally they want to shoot him because he agreed to testify in the Air India bombing."
Bagri was charged in the first shooting of Hayer, and although the charge was later stayed, the Crown tried to get all of this into evidence, but the judge ruled it out saying "the proposed evidence is highly prejudicial... a chilling crime, which would tend to show a disposition towards extreme violence... and with the potential of significantly diverting the trial."
So officially, it was not evidence.
"I fail to understand how that could be thrown out as evidence when it is so obvious that Mr. Hayer was killed because of his knowledge and because of his beliefs and because of his specific knowledge of the conspiracy," Hadon says.
No one was more disgusted by the verdict than Hayer's son, Dave Hayer, who is a member of the B.C. legislature.
"I think it also sends a message to the other terrorists in Canada, you can come up, you can blow up airplanes, kill innocent human beings, and nothing's going to happen to you," Hayer says.
The murders of Tara Singh Hayer hangs over this whole case sending a clear message to other witnesses to be silent or die.
"Witnesses had a right to feel threatened because they were being threatened," Madon says. " They were being killed."
There was other evidence against Bagri, though, and not just his infamous speech a year before the bombing at Madison Square Garden in New York.
It was 19 years after that speech when the trial heard that a former lady friend of Bagri's had made some damaging revelations about him. She's known as Ms. E. She said that Bagri came to her house the night before the bombing trying to borrow her car to take bags to the airport and saying he might not come back if he were caught. Ms. E told her story to a CSIS officer named Willie Laurie who is now with the RCMP. Laurie promised to keep it confidential and said she would not have to testify. His report labelled "top secret" says Bagri asked to borrow her car and it adds: "Bagri then told Ms. E that only the baggage was making the trip. She was quite afraid of Bagri and sensed his intentions and refused to give him her car."
When the Air India flight 182 crash occurred, Ms. E was shocked. Bagri told her that they shared a couple of secrets and that if she told anyone, she knew what he would do. Ms. E is sure that her meant that he would kill her."
Again, that seemed like powerful evidence, and the judge found plenty of reasons to believe it, but the woman herself took the stand and claimed she didn't remember any of this, and the judge did not buy that. He said that she was faking memory loss. He found that she was scared that Bagri would kill her.
Here it gets very complicated. The judge said that her phony memory loss meant that Bagri was unable to cross-examine her on those previous incriminating statements. In other words, her silence caused by her fear of Bagri, helped Bagri. The evidence was deemed unreliable. It did not count.
Eddie Madon says the decision rewarded intimidation. "How dare they throw that out? How dare they," he says. "It's mind boggling truly, and it doesn't make sense. It might make sense to some legal experts, but to the average Canadian and to the average person, how can a judge throw out evidence that clearly indicates that the witness has been threatened? What other evidence does a judge need to point to guilt?"
Andy McCarthy is a veteran prosecutor in the U.S. who handled major terrorism cases in New York such as the 1993 bombing of the World Trade Centre. McCarthy says courts in the U.S. will not allow an accused to benefit from intimidation.
"It doesn't and it shouldn't make sense to the common person or frankly to anyone else that someone by his own misconduct should be able to prevent a witness from testifying truthfully and then profit from that," McCarthy says.
"And that's what is sickening. That's exactly what happened here," Madon says.
Bagri himself has said nothing about these issues apart from a brief statement affirming his innocence.
The same goes for Malik, who emerged from his home to put a new sticker on his Mercedes SUV on the day after the verdict. After four and a half years in jail, he was in a good mood.
Malik was no stranger to reporters asking questions about his activities.
Years earlier, Malik was being asked why he was giving shelter to a convicted hijacker.
"Are you done now?" he asked a reporter.
He didn't want to talk about it, but Malik had been caught sheltering the hijacker in the basement of his school. The man was discovered and deported.
Malik also supported Inderjit Reyat, the man who assembled the Air India bomb.
Inderjit Singh Reyat during court proceedings at B.C. Supreme Court in Vancouver (CP Photo)
Malik was caught by a CSIS spy camera shortly before the bombing at the home of Talwinder Parmar, the ringleader of the Air India plot.
All of this while Malik was a proud member of a fundamentalist group pledged to defend Sihkism above all.
"Each and every step I take, I have to consult my religion that I am right. I have to do the whole thing, and my religion is a whole life," Malik said at the time.
For Malik, his religion meant supporting Sikh militants who wanted revenge for Indian attacks on the Sikh’s sacred Golden Temple in Amritsar.
"I don't think there was any Sikh who wasn't upset at that time," Malik said. " I was upset too, and I don't think that the Canadians can realize this unless it happens to them."
Malik's support for Inderjit Reyat was a big issue at the trial. Prosecutors said it was no coincidence that Malik took good care of Reyat's family while Reyat refused to name his partners in the plot.
In 1998, Reyat in jail claimed that he had no idea who his partners were.
"I have no part of any group, okay, any radical Sikhs. I have no part at all. I don't know them as well," he said.
Reyat is still in jail for his part in the bombing and he still won't talk.
At the trial, he again said he did not know who helped him build the bombs and who he gave them to. The judge concluded that Reyat was, as he put it, "an unmitigated liar," that he was not telling what he knew, and the judge also found that Reyat did receive huge and secret and unexplained payments from Ripudaman Singh Malik.
In fact, Malik paid for Reyat's defence and gave the Reyats free lodging, free schooling for their children, plus $116,000 in cash and cheques paid to Reyat's wife, Satnam Reyat.
The prosecution said it was simple. Malik paid the Reyats to keep their mouths shut. The families who heard all of this agreed.
Anil Hanse’s father was the pilot of flight 182. He says it's obvious why Malik paid all that money.
"It seems to link Malik to the actual case," Hanse say, "With funding. You don't just start supporting people out of the blue as I think not Mr. Nice Guy… Obviously there's a payoff there, somewhere."
But Mr. Justice Josephson disagreed.
He said Malik might just have been sympathetic to Reyat's cause.
He ruled "While it is possible that Mr. Malik provided this support because he was a party to the alleged offences along with Mr. Reyat... It is not, I conclude, the only or even most reasonable inference to be drawn. Thus it carries no weight..."
That decision had a lot to do with Malik's triumphant return to his home as a free man. Legally, his payments to the Reyats meant nothing.
Bal Gupta lost his wife.
"Our Canadian system is just incompetent to handle acts of terrorism of this type," Gupta says.
John Chatlani lost his mother, his brother, and sister.
"I almost feel like the Canadian justice system has made a mockery of all of us," he says.
There was more startling evidence that was never heard at all of the trial, although it did come out at the Supreme Court in a separate case.
The issue was a failed attempt by Malik to stop a secret investigative hearing under Canada's new anti-terrorism law. Prosecutors were trying to get fresh evidence from Satnam Reyat, the wife of the bomb maker. Malik wanted to stop the hearing.
Some astonishing details of the case emerged from a sworn affidavit by RCMP Sergeant Daniel Bond who lays out what the police expected her to reveal if she were questioned. Sgt. Bond says Mrs. Reyat knows the inside story because, he says, she had told a friend privately that both Ripudaman Singh Malik and Ajaib Singh Bagri were involved in the bombing. The RCMP quote Mrs. Reyat as saying it was Bagri and the late Talwinder Parmar, the leader of the plot, who recruited Reyat. She's also quoted as saying Reyat promised he would do the project and wouldn't talk about it and that Reyat made that promise at a meeting attended by Malik. Finally, Sgt. Bond says, Mrs. Reyat received repeated threats. In the end, she refused to testify and none of this ever came out at the trial.
"This is a sworn affidavit by an RCMP. officer who presumably is someone of trust, and it should have been in front of Justice Josephson to decide and bring that in to his entire decision making," Susheel Gupta says.
There is one other intriguing piece of evidence which did emerge at the trial and it came from the woods near Duncan on Vancouver Island, where the Air India bombers did a test bombing three weeks before the real thing.
The test bomb was built at Inderjit Singh Reyat's house in Duncan. The leader of the plot, the late Talwinder Parmar, was there with Reyat.
One of the witnesses said Ripudaman Malik asked him to lie about that, to perjure himself at Reyat's trial. The Crown said that Malik's asking a witness to lie proved that he was part of a coverup.
The judge agreed that Malik may have been attempting to obstruct justice, but he said that didn't necessarily mean that Malik was part of the plot. Again, he may just have been a sympathizer. So for the judge, there was reasonable doubt. For the families, there was a failure to connect the dots.
Rama Bhadwarj lost her 18-year-old son in the bombing.
"We want the culprits to be brought to justice. They're still walking around, and they're celebrating," she says.
She was among the families who recently met in Toronto with Deputy Prime Minister Anne McLellan.
"The question they ask, and it's the most difficult question of all, is where is the justice,"McLellan commented.
Rattan Kalsi was also at the meeting.
"They should not have killed so many children. There were about 90 children, my daughter was 21. Any child on that plane was my child under the age of 21!" Kalsi says. "They killed so many people and we didn't get any justice! Please, somebody help us!"
Help in finding justice will not come soon. The federal government is looking into maybe having a public inquiry, maybe not.
Until then, the situation remains just what it has been for nearly 20 years now. Someone committed mass murder, and they got away with it.
The lawyer for Bagri says he was not surprised the Crown will not appeal and that he's relieved because the case is at an end.
Neither Malik nor Bagri responded to requests for interviews for this item.