Home Programs National security Air India review Lessons to be learned: The report of the Honourable Bob Rae 5. Investigation, charges and trial

5. Investigation, charges and trial

After the bombings, more than 200 RCMP investigators and support staff were deployed to the investigation of the Air India and the Narita airport bombings. The investigation was national and international in scope. The majority of the physical evidence was uncovered at the Narita blast site and investigation surrounding Mr. Reyat’s acquisition of bomb components. Searches and communication intercepts of suspects were numerous. The Air India Flight 182 crime scene generated only a minimal amount of physical evidence as the wreckage was located over 6,000 feet below the ocean’s surface and only a very small portion was ever recovered.

On November 6, 1985, the RCMP conducted a search of the homes of Mr. Parmar, Mr. Reyat and three others. Following the sweep, Parmar and Reyat were arrested on weapons, explosives and conspiracy charges. The RCMP said at the time that the arrests were part of their investigation into the Air India disaster.

The charges against Mr. Parmar were dropped due to lack of evidence but Mr. Reyat was charged with three counts relating to the ignition of an explosive device in the woods outside Duncan, British Columbia and a fourth count related to a weapon found in his home during a search by police. Reyat eventually pled guilty to two counts, paid a fine of $2,000 and a stay of proceedings was entered with respect to the other two counts. Shortly after that, he took his family to Coventry, England. However, he remained a key suspect in the Air India bombings.

In February 1988, police in Britain arrested Mr. Reyat and charged him with making the bomb that exploded at the Narita Airport. He was extradited to Canada on December 13, 1989. His trial began on September 17, 1990, and lasted eight months. On May 10, 1991, he was found guilty of manslaughter by Justice Paris of the British Columbia Supreme Court and later sentenced to 10 years in prison.

Despite the arrest of Mr. Reyat, the investigators were having difficulty finding sufficient proof to charge others. While Parmar was clearly identified as a member of the conspiracy, he was killed in an encounter with Indian authorities in 1992. There were other problems regarding the establishment of a reward for information leading to a conviction. After some delay in getting approval for a reward, this was finally announced in 1995.

On October 27, 2000, Malik and Bagri were arrested in relation to the bombings. Malik and Bagri were charged jointly with eight counts under the Criminal Code of Canada. On June 5, 2001 Crown Counsel filed a new indictment, adding Reyat to those already charged on October 27, 2000. On the new indictment, Malik, Bagri and Mr. Reyat were jointly charged under the Criminal Code of Canada with the following:

• 1 count of first degree murder under section 218(1) of the Code;
• 1 count of conspiracy to commit murder under section 423(1)(a) of the Code;
• 1 count of attempted murder of the passengers and crew of Air India Flight 301 (Tokyo to Bangkok), under section 222 of the Code;
• 1 count of conspiring to cause bombs to be placed on board various aircraft, under sections 76.2(c) and 423(1)(d) of the Code; and
• 3 counts of causing a bomb to be placed on an aircraft, under section 76(2)(c) of the Code.

On February 10, 2003, Mr. Reyat pled guilty and was sentenced to five years in prison for manslaughter and the murder charges against him were dropped.

The trial of the other accused, Bagri and Malik, began in British Columbia Supreme Court in April 2003, before Justice Josephson, and closing submissions were heard December 3rd, 2004, for a total of 233 sitting days. On March 16th, 2005, Justice Josephson released his decision finding Malik and Bagri not guilty on all counts. In his ruling, Justice Josephson noted that:

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 on anything less than the requisite standard of proof beyond a reasonable doubt. Despite what appear to have been the best and most earnest of efforts by the police and the Crown, the evidence has fallen markedly short of that standard. ¹¹

Justice Josephson found that the evidence against Malik and Bagri was not of sufficient credibility to meet the standard of proof in a criminal trial, which is guilt beyond a reasonable doubt. Unlike the Reyat trial, there was no physical evidence that could link these two particular individuals to the conspiracy. The Crown relied on several witnesses coming forward who testified as to what they said they knew and had been told. Thus, the case turned on the trial judge’s view of the reliability of the testimony of the witnesses who came forward.

The trial was long and complex, the most expensive and difficult in the history of the country. Its conclusion naturally sparked a widespread debate among the families, the media, and the broader public.

The trial before Justice Josephson was significant for many reasons. First, he found that there was one conspiracy with two bombs, and that the bombs were put on board two Canadian Pacific planes departing Vancouver — one in a bag marked “M. Singh” destined for Air India Flight 182 and the other in a bag marked “L. Singh” destined for Air India Flight 301. Justice Josephson held:

The foregoing leads to an overwhelming inference that the bomb which precipitated the destruction of Air India Flight 182 was contained in the M. Singh bag. Both suitcases were part of one conspiracy, a conspiracy that saw the successful detonation of an explosive device in the L. Singh bag linked to Mr. Reyat and Mr. Parmar. That the M. Singh bag, in all these circumstances, could have contained something other than an explosive device defies both logic and common sense.

This is an important conclusion given the number of alternative theories in respect of the bombings that were put forward by a variety of witnesses and other individuals.

Second, Justice Josephson recognized that Mr. Parmar was generally acknowledged by both the Crown and the defence as being the leader in the conspiracy to commit the crimes at issue. ¹² This finding was important because it connected Mr. Parmar directly with the crimes.

Third, the trial process revealed that much of the information that CSIS had obtained through its investigation was not promptly shared with the RCMP.

For example, it would appear that CSIS did not advise the RCMP that a warrant had been obtained from the Federal Court to intercept communications on Mr. Parmar. There are conflicting reports as to when CSIS advised the RCMP about the wire taps that had been placed on Mr. Parmar after the bombing. There are also conflicting stories as to the extent of a separate CSIS investigation in the immediate days after the bombing and the degree of cooperation between the RCMP and CSIS at that time. Further, there are conflicting views on whether or not the RCMP asked CSIS to maintain the tapes from the wiretap it had placed on Mr. Parmar.

Fourth, the trial process revealed that many of the tapes from the Mr. Parmar wiretap had been erased by CSIS. In particular, the tapes of the Mr. Parmar intercepts from March 27, 1985, to April 8, 1985, and from April 26, 1985 to May 5, 1985 and from May 8, 1985 to June 23, 1985 had been erased by CSIS.

In addition, the physical surveillance of Mr. Parmar was intermittent in this same period. For example, there was no such surveillance on the days immediately before the bombing.

Justice Josephson noted that the destruction of these tapes was “unacceptable negligence” ¹³ SIRC concluded in 1992 that the destruction of the tape erasure had no material impact on the RCMP investigation. This is a not a view shared by the RCMP, made clear in the memos of February 9th and 16th, 1996, written by Gary Bass, Assistant Commissioner of the RCMP and lead investigator into the Air India disaster since 1996.

The erasure of the tapes is particularly problematic in light of the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe ¹⁴, which held that the Crown has a responsibility to disclose all relevant evidence to the defence even if it has no plans to rely on such evidence at trial. Justice Josephson held that all remaining information in the possession of CSIS is subject to disclosure by the Crown in accordance with the standards set out in Stinchcombe. ¹⁵ Accordingly, CSIS information should not have been withheld from the accused.

The defence argument in the trial of Malik and Bagri was that erased tapes might have produced information that could exonerate their clients. For that reason alone, the tapes should never have been destroyed.

The issue of the relationship between CSIS and the RCMP that was before Justice Josephson highlights the concerns about the connections between intelligence, the destruction of evidence, required disclosure and admissible evidence. It is clear that the relationship between these institutions and the interplay between intelligence and evidence requires further review.