2005 BCSC 350internet R. v. Malik and Bagri

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Malik and Bagri,
	2005 BCSC 350

Date: 20050316
Docket: CC010287
Registry: Vancouver

Between:

HER MAJESTY THE QUEEN

AGAINST

RIPUDAMAN SINGH MALIK and AJAIB SINGH BAGRI

Before: The Honourable Mr. Justice Josephson

Reasons for Judgment

Text Box: There is a Publication Ban pursuant to s. 486(4.1) of the Criminal Code directing that the identities of certain witnesses and any information that could
disclose the identities of those witnesses not be published in any document or broadcast in any way.

Consistent with this Publication Ban, those witnesses are referred to in these Reasons with random letter designations and certain information tending to disclose their identities is omitted.

Counsel for the Crown:	R.H. Wright, Q.C. L.T. Doust, Q.C. R.W. Cairns, Q.C. J. Bellows, Q.C. P.K. Cheema, Q.C. G. Matei B. Toy D.M. Wiedemann G.R. Gaul A.M. Loyst M.A. Mereigh M.T. Ainslie W.B. Milman K. Andani M.M.M. Dufresne J.N. Walker C.E. Richardson M.C. Canofari C. Wong K.S. Wikberg
Counsel for the Defendant, Ripudaman Singh Malik:	E.D. Crossin, Q.C. W.B. Smart, Q.C. S.M. Coristine R.J. Fernyhough J.J. Rai B. Martland
Counsel for the Defendant, Ajaib Singh Bagri:	R.C.C. Peck, Q.C. M. Code M. Tammen N. Harris K. Hamilton P. Barclay A. Kang J. Dawe V.E. Shillington M. Mann A.G. Lee
Counsel for the Court:	M.R. Shapray C.S. Judd
Place of Trial:	Vancouver, B.C.
Dates of Trial:

YEAR/MONTH	DAY(S)
2003
April	28, 29 30
May	5, 6, 7, 8, 12, 13, 20, 21, 22, 23, 28
June	20, 25
September	3, 5, 8, 9, 10, 11, 12, 15, 17, 18, 19, 24,
October	1, 6, 10, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29, 31
November	3, 4, 5 6, 10, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 27
December	5, 8, 9, 10, 15, 16, 17, 18, 19
2004
January	5, 6, 7, 8, 9, 12, 13, 14, 15, 18, 19, 20, 21, 22, 26, 27, 28, 29, 30
February	4, 9, 12, 13, 16, 17, 18, 27
March	1, 2, 3, 4, 5. 8, 9, 10, 11, 12, 15, 17, 18, 19, 22, 23, 24, 30, 31
April	1, 2, 5, 8, 13, 14, 15, 16, 19, 20, 21, 22, 25, 26, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30
May	3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 31
June	2, 3, 4, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30
July	5, 6, 7, 8, 12, 13, 14, 15, 16, 17, 22
August	11, 12, 13, 17, 18, 19, 20, 23, 24, 25, 26, 27 30
September	7, 8, 20
October	1, 19, 20, 21, 22, 25, 26, 27, 28, 29
November	1, 2, 3, 4, 5, 8, 9, 10, 12, 15, 16, 22, 23, 24, 25, 26, 29, 30
December	1, 2, 3

TABLE OF CONTENTS

I. OVERVIEW........................................................................................................................	13

II. THE CHARGES.................................................................................................................	14

III. THE FACTS.......................................................................................................................	18
A. Telephone Calls to Canadian Pacific Airlines.............................................................	18
B. The Purchase of the L. Singh and M. Singh Tickets...................................................	20
C. Telephone Call Checking on the Flight.......................................................................	21
D. Baggage Check-in......................................................................................................	22
E. Movement of Baggage................................................................................................	24
F. The Kanishka Aircraft..................................................................................................	27
G. Loading of the Kanishka.............................................................................................	28
H. Arrival of the Kanishka into Shannon Airspace...........................................................	29
I. The Rescue and Recovery Operation........................................................................	30
J. CP Air Flight 003. .......................................................................................................	34

IV. THE FORENSIC EVIDENCE CONCERNING AIR INDIA FLIGHT 182............................	35
A. Background.................................................................................................................	35
B. Qualifications of the Experts......................................................................................	37
C. Overview of the Experts’ Opinions.............................................................................	39
D. The Evidence of Professor Peel................................................................................	40
1. Basic Principles..................................................................................................	40
2. Location of the Bomb..........................................................................................	45
a. Hole in the Aft Fuselage...............................................................................	46
b. The Longitudinal Crack................................................................................	49
c. Area of Damage on the Left Aft Fuselage (Targets 656, 1011 and 26).......	55
i. Target 656..........................................................................................	55
ii. Target 1011........................................................................................	58
iii. Target 26 – Radiating Cracks............................................................	65
d. Matching Bulge Apexes in the Left and Right
Aft Fuselage.................................................................................................	69
i. Left Aft Fuselage.................................................................................	69
ii. Right Aft Fuselage..............................................................................	75
e. Target 653....................................................................................................	81
f. Why the Explosive Device Could Not Have Been in Baggage Area 51 Left	86
E. The Evidence of Dr. Trimble......................................................................................	87
1. Targets 24 and 30...............................................................................................	90
2. Target 47 .....................................................................................................	94
3. Front Fuselage....................................................................................................	94
4. Keel Beam Splice Joints.....................................................................................	96
5. Evidence Inconsistent with an Explosion in Baggage Area 51..........................	98
F. The Reconstruction....................................................................................................	99
G. Wreckage Trail Analysis...........................................................................................	100
H. Conclusion ...................................................................................................	104

V. BACKGROUND EVIDENCE..........................................................................................	109
A. The Golden Temple Attack and Khalistan Movement..............................................	109
B. The Formation of the Babbar Khalsa Sikh Society of Canada................................	111
C. Talwinder Singh Parmar...........................................................................................	112
D. Inderjit Singh Reyat...................................................................................................	112
1. Mr. Reyat’s Quest for Explosives and the June 4 Test Blast...........................	114
2. Mr. Reyat’s Evidence Regarding Mr. X and the June 4 Test Blast...................	116
3. Mr. Reyat’s Procurement of Bomb Components.............................................	117
4. The Scientific Evidence Concerning the Narita Explosion................................	119
5. Mr. Reyat’s Actions on June 21 and June 22, 1985..........................................	120
6. Conclusions Regarding Mr. Reyat....................................................................	120

VI. EVIDENCE AGAINST MR. MALIK................................................................................	122
A. Overview ...................................................................................................	122
B. Background Information...........................................................................................	122
C. The Evidence of Jagdev Singh Dhillon.....................................................................	122
D. The Evidence of Mr. A..............................................................................................	123
E. Defence Evidence Regarding Mr. A’s Allegations....................................................	128
1. Renovations to the Ross Street Temple...........................................................	128
2. The Location of Mr. Malik’s Stall........................................................................	129
F. The Evidence of Mr. B..............................................................................................	129
G. The Evidence of Ms. D.............................................................................................	138
1. Overview ... ………..…………………………………………………………	138
2. Personal Background........................................................................................	138
3. Contact with Others at the Khalsa School........................................................	140
4. Relationship with Mr. Malik................................................................................	141
5. Mr. Malik’s Admissions......................................................................................	143
a. The Newspaper Confession......................................................................	143
b. The Cudail Discussion...............................................................................	150
c. The Anashka Conversation........................................................................	152
d. The Mr. B Discussion.................................................................................	153
e. The Calgary Meeting..................................................................................	153
f. The Seattle Meeting....................................................................................	153
6. Evidence Regarding 1996 and 1997.................................................................	154
7. Human Rights Complaints................................................................................	157
8. Ms. D’s Civil Action............................................................................................	158
9. Contact with CSIS.............................................................................................	158
10. Dealings with the RCMP...................................................................................	161
11. Delay in Reporting the Newspaper Confession................................................	162
12. The Journal ...................................................................................................	162
13. Interaction with Mr. B.........................................................................................	166
14. Threats and Life in the Witness Protection Program.......................................	167
15. The Cross-examination of Ms. D......................................................................	168
a. Emotional Attachment to the Khalsa Pre-school.......................................	168
b. Relationship with Mr. Malik.........................................................................	169
c. The Newspaper Confession......................................................................	171
d. The Cudail Discussion...............................................................................	173
e. Reading Books about the Air India Explosion............................................	174
f. The Seattle Trip..........................................................................................	174
g. The Anashka Conversation........................................................................	175
h. Dealings with CSIS....................................................................................	175
i. Dealings with the RCMP............................................................................	177
H. The Evidence of CSIS Agent Nicholas Rowe..........................................................	178
1. Direct Examination............................................................................................	178
2. Cross-examination............................................................................................	183
a. The First Telephone Call and the Meeting at Starbucks............................	183
b. The Hotel Meetings.....................................................................................	185
c. Ms. D’s Motivations and Involvement of the RCMP...................................	187
d. Ms. D’s First Contact with the RCMP........................................................	190
I. RCMP Evidence Regarding Ms. D...........................................................................	191
1. Initial Dealings with Ms. D.................................................................................	191
2. Information Provided by Ms. D – November, 1997 to April, 1998.....................	194
J. Telephone Calls Between Mr. Malik and Ms. D........................................................	201
K. The Evidence of Narinder Singh Gill.........................................................................	201
L. The Evidence of Joginder Singh Gill.........................................................................	208
M. The Evidence of Mr. Malik’s Financial Support of the Reyat Family........................	210
N. Evidence of Association...........................................................................................	210
O. The Evidence of Mohinder Cudail.............................................................................	211
P. The Evidence of Inderjit Singh Arora........................................................................	212
Q. Mindy Bhandher’s Whereabouts in Spring, 1997.....................................................	213
R. The Evidence of Daljit Singh Sandhu.......................................................................	215
S. The Evidence of Satwant Singh Sandhu..................................................................	218
T. Defence Evidence Regarding the Seattle Meeting...................................................	221

VII. SUBMISSIONS OF THE PARTIES REGARDING MR. MALIK..................................	222
A. Motive ...................................................................................................	222
1. Position of Mr. Malik...........................................................................................	222
2. Position of the Crown........................................................................................	223
B. Evidence of Association...........................................................................................	224
1. Position of Mr. Malik...........................................................................................	224
2. Position of the Crown........................................................................................	228
C. Attempts to Recruit Individuals to Deliver Bombs....................................................	230
1. Position of Mr. Malik...........................................................................................	230
a. Jagdev Singh Dhillon..................................................................................	230
b. Mr. A ...................................................................................................	231
c. Mr. B ...................................................................................................	233
2. Position of the Crown........................................................................................	238
a. Jagdev Singh Dhillon..................................................................................	238
b. Mr. A ...................................................................................................	239
c. Mr. B ...................................................................................................	239
D. Ms. D and Related Witnesses.................................................................................	241
1. Position of Mr. Malik...........................................................................................	241
a. Overview ...................................................................................................	241
b. Relationship with Mr. Malik.........................................................................	242
c. Ms. D’s State of Mind in 1996.....................................................................	243
d. Ms. D’s State of Mind in 1997.....................................................................	245
e. Ms. D’s Actions Belie Her Words...............................................................	246
f. Destruction of Journal and File Materials...................................................	247
g. The Newspaper Confession......................................................................	248
i. Information in the Public Domain.....................................................	251
ii. The Bhandher Speeding Ticket........................................................	256
iii. Response to Crown’s Submission on Delay in Reporting Newspaper Confession....................................................................	256
iv. Ms. D’s Journal.................................................................................	257
h. The Cudail Discussion...............................................................................	259
i. The Anashka Conversation........................................................................	262
j. The Mr. B Discussion.................................................................................	263
k. The Calgary Meeting..................................................................................	264
l. The Seattle Meeting....................................................................................	264
m. General Issues Regarding Credibility.........................................................	266
n. The Evidence of Mr. Arora..........................................................................	266
o. The Evidence of Nick Rowe.......................................................................	267
p. Daljit Singh Sandhu....................................................................................	270
q. Satwant Singh Sandhu...............................................................................	272
2. Position of the Crown........................................................................................	274
a. Overview ...................................................................................................	274
b. Demeanour on the Witness Stand............................................................	275
c. The Nature of the Relationship...................................................................	276
d. Telephone Contact Between Mr. Malik and Ms. D.....................................	277
e. The Newspaper Confession......................................................................	278
i. Ms. D’s Journal.................................................................................	281
ii. Independent Confirmatory Evidence of the Newspaper Confession.......................................................................................	282
iii. Information in the Public Domain.....................................................	283
iv. Delay in Reporting the Newspaper Confession...............................	284
f. The Cudail Discussion...............................................................................	284
g. The Anashka Conversation........................................................................	286
h. The Mr. B Discussion.................................................................................	287
i. The Calgary Meeting..................................................................................	288
j. The Seattle Meeting....................................................................................	288
k. The Evidence of Nick Rowe.......................................................................	290
l. Ms. D’s Dealings with the RCMP...............................................................	291
m. Daljit Singh Sandhu....................................................................................	292
n. Satwant Singh Sandhu...............................................................................	293
E. Post Offence Conduct..............................................................................................	294
1. Position of Mr. Malik...........................................................................................	294
a. Financial Support of the Reyat Family.......................................................	294
b. The Evidence of Joginder Singh Gill..........................................................	296
2. Position of the Crown........................................................................................	297
a. Financial Support of the Reyat Family.......................................................	297
b. The Evidence of Joginder Singh Gill..........................................................	299

VIII.APPLICABLE LEGAL PRINCIPLES...................................................................................	300
A. Standard of Proof....................................................................................................	300
B. Motive.......................................................................................................................	303
c. *Vetrovec* Cautions.................................................................................................	304

IX. CONCLUSIONS REGARDING THE CASE AGAINST MR. MALIK............................	307
A. Cross-examination of Crown Witnesses.................................................................	307
B. Motive........................................................................................................................	309
C. Evidence of Association...........................................................................................	309
D. The Attempts to Recruit Individuals to Deliver Bombs.............................................	310
1. Jagdev Singh Dhillon.........................................................................................	310
2. Mr. A..................................................................................................................	311
3. Mr. B..................................................................................................................	313
E. Ms. D........................................................................................................................	318
1. Manner and Demeanour...................................................................................	318
2. The Relationship Between Ms. D and Mr. Malik................................................	318
3. The Newspaper Confession.............................................................................	326
a. Details of the Newspaper Confession in the Public Domain.....................	329
b. The Evidence of Mr. Arora..........................................................................	331
c. The Bhandher Speeding Ticket..................................................................	332
d. The Journal.................................................................................................	332
e. The Involvement of Daljit Singh Sandhu....................................................	335
f. The Involvement of Satwant Singh Sandhu...............................................	335
g. Summary of Conclusions Regarding the Newspaper Confession............	336
4. The Cudail Discussion......................................................................................	337
5. The Anashka Conversation...............................................................................	340
6. The Mr. B Discussion........................................................................................	342
7. The Calgary Meeting.........................................................................................	343
8. The Seattle Trip.................................................................................................	343
9. Final Conclusion Regarding Ms. D’s Credibility...................................................	344
F. Post-Offence Conduct.............................................................................................	345
1. Financial Support of the Reyat Family..............................................................	345
2. The Evidence of Joginder Singh Gill.................................................................	346
G. Final Conclusions ...................................................................................................	347

X. THE EVIDENCE AGAINST MR. BAGRI.......................................................................	348
A. Motive........................................................................................................................	349
1. Mr. Bagri’s Speeches........................................................................................	349
a. Madison Square Gardens Speech.............................................................	349
b. Panthak Conference Speech.....................................................................	350
2. Statements to the Police...................................................................................	351
a. Wilf Bells ...................................................................................................	351
b. Detective Sergeant Keith Weston..............................................................	352
3. Other Evidence of Motive..................................................................................	354
B. Evidence of Inculpatory Statements.........................................................................	354
1. Mr. C and Related Witnesses...........................................................................	354
a. Overview....................................................................................................	354
b. Mr. C’s Background....................................................................................	356
i. General.............................................................................................	356
ii. Criminal History................................................................................	356
iii. The Deshmesh Regiment and the New Orleans Incident...............	358
iv. The Air India/Narita Explosions.........................................................	362
v. Becoming an FBI Informant..............................................................	364
vi. Assistance from the FBI...................................................................	366
Financial Assistance.................................................................	366
Immigration Assistance.............................................................	366
vii. Additional Immigration Matters.........................................................	369
c. Mr. Bagri’s Alleged Statements to Mr. C....................................................	370
i. Post-MSG Conference Statement...................................................	370
ii. Gas Station Conversation................................................................	372
iii. Stockton Conference Conversation.................................................	376
iv. Richmond Hill Temple Conversations..............................................	378
“The Walls Have Ears”..............................................................	378
Reyat Extradition Conversation.................................................	379
v. The Lachine Temple Speech...........................................................	383
d. Mr. C’s Relationship with the RCMP..........................................................	383
e. Further Evidence of Mr. C..........................................................................	391
i. Relationship with Mr. Bagri...............................................................	391
ii. Conversations with Kamal Jit...........................................................	391
f. The Evidence of Mr. Parrish.......................................................................	392
i. The New Orleans Incident................................................................	392
ii. Notes and Telexes; FBI Procedures................................................	393
iii. September 25, 1985 Debriefing.......................................................	394
iv. Telexes regarding Mr. C...................................................................	398
September 28, 1987..................................................................	398
January 25, 1988 Telex.............................................................	399
April 13, 1989 Fax......................................................................	400
July 7, 1989 Telex......................................................................	401
v. Post-MSG Conference Statement...................................................	403
vi. Memory-refreshing Exercise............................................................	403
g. Evidence of Defence Witnesses...............................................................	405
i. The Evidence of Jack Cloonan.........................................................	405
ii. The Evidence of Balbir Singh Grahala.............................................	413
iii. The Evidence of Gurmit Singh Kalotia.............................................	416
iv. The Evidence of Kamal Jit................................................................	421
2. Ms. E and Related Witnesses..........................................................................	423
a. Overview....................................................................................................	423
b. The Evidence of Ms. E...............................................................................	424
c. First Contact with the RCMP.....................................................................	430
d. Contact with CSIS......................................................................................	431
i. September 10, 1987 Interview..........................................................	431
ii. September 24, 1987 Interview..........................................................	435
iii. October 7, 1987 Interview................................................................	438
e. Mr. Laurie’s Reports...................................................................................	440
f. Ms. E’s Evidence Regarding her Interviews with Mr. Laurie......................	441
g. Ms. E’s Interview with Cpl. Best.................................................................	442
C. Jagdish Johal ...................................................................................................	442

XI. SUBMISSIONS OF THE PARTIES REGARDING MR. BAGRI..................................	445
A. Motive......... ...................................................................................................	445
1. Position of the Crown........................................................................................	445
2. Position of Mr. Bagri..........................................................................................	450
B. Mr. C and Related Witnesses..................................................................................	455
1. Position of the Crown........................................................................................	455
a. Mr. C ...................................................................................................	455
i. Relationship with the FBI..................................................................	455
ii. Mr. C’s Character.............................................................................	457
iii. Out-of-court Lies..............................................................................	459
iv. Refreshing Mr. C’s Memory..............................................................	460
v. Benefits for Testimony.....................................................................	461
vi. Mr. Bagri’s Statements.....................................................................	462
Post-MSG Conference Statement............................................	463
Gas Station Conversation.........................................................	463
vii. No Reason to Fabricate...................................................................	466
viii. *Vetrovec* Caution.............................................................................	467
b. The Related Witnesses.............................................................................	467
i. The FBI Witnesses – Mr. Parrish and Mr. Cloonan.........................	467
ii. Balbir Singh......................................................................................	472
iii. Gurmit Singh Kalotia.........................................................................	473
iv. Kamal Jit...........................................................................................	474
2. Position of Mr. Bagri..........................................................................................	475
a. Mr. C ...................................................................................................	475
i. Character..........................................................................................	476
Involvement in Criminal Activities..............................................	476
Immigration History...................................................................	476
Pursuit of Benefits.....................................................................	478
The New Orleans Incident.........................................................	480
Becoming an FBI Informant......................................................	481
ii. Bias and Self-interest.......................................................................	482
iii. Mr. C’s Evidence Regarding Mr. Bagri’s Alleged Statements..........	483
Post-MSG Conference Statement............................................	483
Gas Station Conversation.........................................................	484
Stockton and Richmond Hill Temple Statements.....................	487
iv. *Vetrovec* Caution.............................................................................	489
b. Mr. Parrish..................................................................................................	489
c. Balbir Singh and Gurmit Singh Kalotia.......................................................	493
d. Kamal Jit ...................................................................................................	495
C. Ms. E and Related Witnesses..................................................................................	496
1. Position of the Crown........................................................................................	496
a. Ultimate Reliability of Ms. E’s Statements.................................................	497
b. Accuracy of the Record.............................................................................	500
c. Confirmatory Evidence...............................................................................	502
2. Position of Mr. Bagri..........................................................................................	503
a. June, 1985 and December, 1985 Visits.....................................................	503
b. Ms. E’s Statements Entitled to Little Weight..............................................	505
c. Ultimate Reliability of Ms. E’s Statements.................................................	506
i. Oath..................................................................................................	506
ii. Promise of Confidentiality.................................................................	506
iii. Record of the Statements................................................................	508
iv. Cross-examination...........................................................................	509
v. Contemporaneity..............................................................................	509
vi. Tainting.............................................................................................	510
vii. Trial Evidence...................................................................................	513
d. *R. v. Czibulka*............................................................................................	513
D. Ms. Johal...... ...................................................................................................	515
1. Position of the Crown........................................................................................	515
2. Position of Mr. Bagri..........................................................................................	517
E. Evidence of Association...........................................................................................	519
1. Position of the Crown........................................................................................	519
a. Nature of Mr. Bagri’s Relationship with Mr. Parmar...................................	520
b. Telephone Contact.....................................................................................	521
c. Personal Contact.......................................................................................	522
d. Evidence of Association with the Other Conspirators...............................	523
2. Position of Mr. Bagri..........................................................................................	524
a. Telephone Contact.....................................................................................	525
b. Personal Contact.......................................................................................	528

XII. CONCLUSIONS REGARDING THE CASE AGAINST MR. BAGRI............................	529
A. Motive......... ...................................................................................................	529
B. Mr. C and Related Witnesses..................................................................................	530
1. Credibility of Mr. C.............................................................................................	530
2. Mr. Bagri’s Alleged Statements.........................................................................	538
a. Post-MSG Conference Statement.............................................................	538
b. Gas Station Statement...............................................................................	539
c. The Other Statements...............................................................................	547
3. Summary of Conclusions Regarding Mr. C......................................................	550
C. Ms. E......... ...................................................................................................	550
1. Re-visiting Threshold Admissibility...................................................................	551
a. *R. v. Czibulka*............................................................................................	551
b. Conclusion.................................................................................................	553
2. Ultimate Reliability of Ms. E’s Statements........................................................	555
D. Ms. Johal...................................................................................................................	561
E. Summary of Conclusions Regarding Mr. Bagri.......................................................	561
F. *Charter* Remedies	565

XIII. SUMMARY...........................................................................................................................	566
A. Introduction...............................................................................................................	566
B. Tickets and Check-in of Baggage............................................................................	568
C. Forensics..................................................................................................................	570
D. Historical Context ...................................................................................................	573
E. Talwinder Singh Parmar...........................................................................................	574
F. Inderjit Singh Reyat...................................................................................................	575
G. The Case Against Mr. Malik......................................................................................	578
1. The Evidence of Mr. B.......................................................................................	579
2. The Evidence of Mr. A.......................................................................................	581
3. The Evidence of Ms. D......................................................................................	582
4. Conclusions Regarding Mr. Malik......................................................................	588
a. Mr. B and Mr. A...........................................................................................	588
b. Ms. D ...................................................................................................	590
H. The Case Against Mr. Bagri.....................................................................................	595
1. Evidence of Motive............................................................................................	595
2. Evidence of Association....................................................................................	597
3. Inculpatory Statements by Mr. Bagri.................................................................	597
a. Mr. C ...................................................................................................	598
b. Ms. E ...................................................................................................	605
4. Conclusion Regarding Mr. Bagri.......................................................................	607
I. Final Conclusion ...................................................................................................	608

APPENDIX A – List of Passengers and Crew of Flight 182........................................................	610
APPENDIX B – Boeing 747-200 Fuselage and Empennage with Skin Targets.........................	616
APPENDIX C – Aft Fuselage Targets Near to Bulk Cargo Area.................................................	617
APPENDIX D – Target T1011 – View from Left Side..................................................................	618

I. OVERVIEW

[1] In the early morning hours of June 23, 1985, Air India Flight 182, carrying 329 people[1], was destroyed mid-flight by a bomb located in its rear cargo hold. Remnants of the plane and bodies of some of the victims were recovered from the Atlantic Ocean off the coast of Ireland. There were no survivors.

[2] Fifty-four minutes earlier, another bomb had exploded inside the baggage handling area of the New Tokyo International Airport in Narita, Japan (“Narita Airport”). Two Japanese baggage handlers were killed instantly by the force of the explosion and four others were injured.

[3] Through the multinational police investigation that followed, it was learned that two suitcases had been checked in at the Vancouver International Airport (the “Vancouver Airport”) on the morning of June 22, 1985 and loaded onto two aircraft without any accompanying passengers boarding those flights. One of the suitcases had been interlined through Toronto and loaded onto Air India Flight 182. The other suitcase had been located in the baggage container from which the explosion at Narita Airport had originated. That suitcase had been destined for an Air India flight heading to Bangkok.

[4] A few days prior to these incidents, two separate airline tickets had been booked on Canadian Pacific Airlines flights originating out of Vancouver. These tickets, subsequently picked up and paid for in cash, corresponded with the tickets that were used to check in the unaccompanied baggage at the Vancouver Airport.

[5] The investigation into this matter continues to this day. In October, 2000, Ripudaman Singh Malik (“Mr. Malik”) and Ajaib Singh Bagri (“Mr. Bagri”) were charged with a series of offences alleging their involvement in a conspiracy to commit murder and place bombs on aircraft. The trial commenced in April, 2003 and continued for approximately sixteen months. No forensic evidence was led linking Mr. Malik and Mr. Bagri to either bomb. Leaving aside the issue of the location of the bomb on Air India Flight 182, the determination of guilt devolves to a weighing of the credibility of a number of witnesses who testified during the course of the trial. Neither accused testified in these proceedings.

II. THE CHARGES

[6] Mr. Malik and Mr. Bagri stand charged as follows:

Count 1

THAT between the 1^st day of June, 1984 and the 24^th day of June, 1985, at or near the Cities of Vancouver, Kamloops and Duncan, the District of Burnaby, the Corporation of the Township of Richmond and elsewhere in the Province of British Columbia and Canada did unlawfully conspire together the one with the other or others of them and with TALWINDER SINGH PARMAR and with a person or with persons unknown, to murder the passengers and crew of an aircraft designated as Air India Flight 301 scheduled to depart New Tokyo International Airport, Narita, Japan at approximately 1:05 A.M. on June 23, 1985 (Pacific Daylight Time) for Bangkok, Thailand, and the 329 passengers and crew (named in Schedule A, attached) of an aircraft designated as Air India Flight 182 which departed from Mirabel International Airport, Montreal, Quebec, Canada at approximately 7:20 P.M. on June 22, 1985 (Pacific Daylight Time) for Heathrow International Airport, London, England, contrary to Section 423(1)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 2

THAT on or about the 23^rd day of June, 1985 (Pacific Daylight Time) at or near the Corporation of the Township of Richmond in the Province of British Columbia and elsewhere in the Province of British Columbia and Canada and off the west coast of the Republic of Ireland did commit the first degree murder of the 329 passengers and crew of Air India Flight 182 (referred to in Count 1 above), contrary to Section 218(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 3

THAT between the 18^th day of June, 1985 and the 24^th day of June, 1985, at or near the Corporation of the Township of Richmond in the Province of British Columbia and elsewhere in the Province of British Columbia and Canada, and at or near Narita, Chiba Prefecture, Japan, did attempt to commit the murder of the passengers and crew of Air India 301 (referred to in Count 1 above) by attempting to place on board the said aircraft a bomb intended to cause its destruction and the death of its occupants, contrary to Section 222 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 4

THAT on or about the 22^nd day of June, 1985 (Pacific Daylight Time) at or near the Corporation of the Township of Richmond, in the Province of British Columbia, and elsewhere in the Province of British Columbia and Canada, and in Narita, Chiba Prefecture, Japan, did commit the first degree murder of HIDEO ASANO and HIDEHARU KODA, contrary to Section 218(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 5

THAT between the 1^st day of June, 1984 and the 24^th day of June, 1985 at or near the Cities of Vancouver, Kamloops and Duncan, the District of Burnaby, the Corporation of the Township of Richmond and elsewhere in the Province of British Columbia and Canada did unlawfully conspire together the one with the other or others of them and with TALWINDER SINGH PARMAR and with a person or with persons unknown, to commit the indictable offences of causing to be placed on board aircraft in service, namely:

an aircraft designated as Canadian Pacific Airlines Flight 003 which departed the Vancouver International Airport at or near the Corporation of the Township of Richmond, British Columbia at approximately 1:30 P.M. on June 22, 1985 (Pacific Daylight Time);

Air India Flight 301 (referred to in Count 1 above);

an aircraft designated as Canadian Pacific Airlines Flight 060 which departed the Vancouver International Airport at or near the Corporation of the Township of Richmond, British Columbia at approximately 9:20 A.M. on June 22, 1985 (Pacific Daylight Time), and;

an aircraft designated as Air India Flight 181 which departed from Toronto, Ontario at approximately 5:20 P.M. on June 22, 1985 (Pacific Daylight Time) travelling to Montreal, Quebec where it was renamed Air India Flight 182 (referred to in Count 1 above);

bombs that were likely to cause damage to the said aircraft that would render them incapable of flight or that were likely to endanger the safety of the aircraft in flight, contrary to Section 76.2(c) and 423(1)(d) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 6

THAT on or about the 22^nd day of June, 1985, at the Vancouver International Airport at or near the Corporation of the Township of Richmond, in the Province of British Columbia did cause to be placed on board an aircraft in service, namely Canadian Pacific Airlines Flight 003 (referred to in Count 5 above), a bomb that was likely to cause damage to the said aircraft that would render it incapable of flight or that was likely to endanger the safety of the aircraft in flight, contrary to Section 76.2(c) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 7

THAT on or about the 22^nd day of June, 1985, at the Vancouver International Airport at or near the Corporation of the Township of Richmond, in the Province of British Columbia did cause to be placed on board an aircraft in service, namely Canadian Pacific Airlines Flight 060 (referred to in Count 5 above), a bomb that was likely to cause damage to the said aircraft that would render it incapable of flight or that was likely to endanger the safety of the aircraft in flight, contrary to Section 76.2(c) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

Count 8

THAT on or about the 22^nd day of June, 1985, at or near the Corporation of the Township of Richmond, in the Province of British Columbia and at Lester B. Pearson International Airport at Toronto, Ontario, did cause to be placed on board an aircraft in service, namely Air India Flight 181 (referred to in Count 5 above) a bomb that was likely to cause damage to the said aircraft that would render it incapable of flight or that was likely to endanger the safety of the aircraft in flight, contrary to Section 76.2(c) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 and against the peace of our Lady the Queen her Crown and Dignity.

III. THE FACTS

A. Telephone Calls to Canadian Pacific Airlines

[7] On June 19, 1985, Martine Donahue, a reservations agent for Canadian Pacific Airlines (“CP Air”), fielded a telephone call from an individual seeking reservations for two passengers on separate flights.

[8] Ms. Donahue created two reservations for the male caller. The first reservation was in the name of Mohinderbel Singh and was for a round trip between Vancouver and Bangkok, Thailand. The passenger was booked on CP Flight 003 departing Vancouver for Narita, Japan on June 22, 1985, with a connecting flight from Narita to Bangkok on Air India Flight 301.

[9] The second reservation was in the name of Jaswand Singh and was for CP Air Flight 086 departing Vancouver for Montreal (Dorval) on June 22, 1985, connecting to Air India Flight 182 departing Montreal (Mirabel) for Delhi, also on June 22. This second leg of the flight was sold out at the time of booking, however, and the passenger was therefore placed on a waiting list. Ms. Donahue testified that a passenger arriving at Dorval and connecting to a flight departing from Mirabel would be required to retrieve his luggage and transport it to Mirabel, approximately one to one-and-one-half hours away by highway.

[10] During the one-half hour call, Ms. Donahue and the caller discussed the fact that he was Sikh. She recalled that he spoke English well with a slight East Indian accent, and had concluded that he was likely middle-aged and educated. The caller left a contact number of (604) 437-3216 for both tickets and advised Ms. Donahue that arrangements would be made to have the tickets picked up from a CP Air office. The telephone number provided had formerly belonged to Hardial Singh Johal (“Hardial Johal”) but was no longer assigned to him as of July 1984.

[11] The electronic ticketing record for the Delhi bound flight indicates that a number of changes were made to the flight plan in the early morning hours of June 20, 1985. CP Air Flight 086 from Vancouver to Dorval and Air India Flight 182 from Mirabel to Delhi were cancelled. CP Air Flight 060 from Vancouver to Toronto (confirmed) and Air India 181/182 from Toronto to Delhi (unconfirmed) were added. Both flights were scheduled to depart on June 22, 1985.

B. The Purchase of the L. Singh and M. Singh Tickets

[12] On June 20, 1985, an East Indian male attended at a CP Air office in downtown Vancouver to purchase the tickets that had been reserved the previous day. Gerald Duncan, a CP Air ticketing agent, described the purchaser as being in his early forties, approximately five feet eleven inches, two hundred and ten pounds, of average build and with a slightly grey beard tied up in a net. The individual wore a mustard coloured turban, plaid shirt, beige windbreaker and a ring with a clear stone, possibly on his right hand. The individual spoke English with a slight accent and did not provide his name. Mr. Duncan has never identified the purchaser of the tickets from photograph line-ups shown to him by police.

[13] The purchaser requested that the name on the first ticket be changed from Mohinderbel Singh to L. Singh and that the ticket be changed from return to one-way. He explained that the passenger intended to remain in Bangkok for more than one year, which obviated the need for a return ticket. The final itinerary for the L. Singh ticket was a one-way flight on CP Air Flight 003 from Vancouver to Narita on June 22, 1985, with a confirmed connection to Air India Flight 301 from Narita to Bangkok on June 23, 1985. The cost of this ticket was $1,283.00 plus tax and was paid for in cash.

[14] The purchaser also requested that the name on the second ticket be changed from Jaswand Singh to M. Singh and the contact number from (604) 437-3216 to (604) 437-3215. The new number had been assigned to Sodhi Singh Sodhi in June, 1985. Mr. Sodhi testified that he did not make flight reservations with CP Air on June 19, 1985, nor did he attend at the CP Air office on June 20 to pick up the tickets.

[15] The final itinerary for the M. Singh ticket was for a confirmed flight on CP Air Flight 060 from Vancouver to Toronto on June 22, 1985, connecting to Air India Flight 181/182 departing Toronto for Delhi on June 22 via Montreal and London. The passenger was wait-listed for this second portion of the trip. The cost of this ticket was $1,682.00 plus tax and was also paid for in cash.

C. Telephone Call Checking on the Flight

[16] Abdulaziz Premji was a CP Air reservations agent in Vancouver on June 22, 1985. At approximately 6:30 a.m., he received a telephone call from an individual identifying himself as Manjit Singh inquiring whether his flight to Delhi on Air India that day was confirmed. (Unless otherwise noted, all times refer to Pacific Daylight Time.) Mr. Premji reviewed the M. Singh ticket information and informed Mr. Singh that he was confirmed on CP Air Flight 060 to Toronto but remained wait-listed for Air India Flight 181/182 departing Toronto. His offer to book Mr. Singh on an alternate flight to Delhi was declined. Mr. Singh also inquired whether he could check his luggage straight through to Delhi from Vancouver. Mr. Premji informed him that this was not possible since his flight out of Toronto was not confirmed. Mr. Singh indicated that he would attend at the airport that morning and take his chances getting on the flight.

[17] Mr. Premji believes the caller to have been approximately 40 years of age and from the Punjab. He spoke English well and was soft-spoken.

D. Baggage Check-in

[18] Jeanne Bakermans was on duty at the CP Air check-in counter at the Vancouver Airport on June 22, 1985. Between 7:30 and 8:00 a.m., an East Indian male in Western clothing without a turban or beard approached her wicket and presented her with the M. Singh ticket. Ms. Bakermans has viewed photograph line-ups on a number of occasions but has never been able to identify this individual.

[19] The M. Singh ticket indicated that the passenger had a confirmed reservation only for CP Air Flight 060 to Toronto; he was wait-listed for Air India Flights 181 (Toronto to Montreal) and 182 (Montreal to Delhi). Ms. Bakermans initially tagged the passenger’s suitcase to be off-loaded in Toronto. This individual was loudly adamant, however, that he was confirmed through to Delhi and that his suitcase should therefore be interlined onto the connecting Air India flights. Following an argument regarding the status of the M. Singh flights and with a line-up of customers awaiting service, Ms. Bakermans relented and tagged the suitcase to interline through to Delhi.

[20] The M. Singh flight coupon was not collected prior to boarding and the assigned seat remained empty until it was occupied by another passenger. No refund has ever been claimed with respect to the M. Singh ticket, nor has a lost, mis-directed or found bag for M. Singh ever been reported.

[21] Ms. Bakermans also checked in the L. Singh bag later that day. She testified that the holder of the L. Singh ticket was not the same individual who had presented the M. Singh ticket that morning since she would have recognized him had that been the case. The L. Singh suitcase was checked onto CP Air Flight 003 and was interlined through to Bangkok on Air India Flight 301. Vancouver Airport records for CP Air Flight 003 indicate that one of the containers filled with baggage destined for Narita was numbered AVE B289.

[22] The L. Singh flight coupon was not collected prior to boarding and the assigned seat remained unoccupied throughout the duration of the flight. No refund has ever been claimed with respect to the L. Singh ticket, nor has a lost, mis-directed or found bag for L. Singh ever been reported.

E. Movement of Baggage

[23] CP Air Flight 060 departed the Vancouver Airport on June 22 at 9:18 a.m. and arrived at Terminal One at Lester B. Pearson International Airport (“Pearson”) in Toronto at 4:20 p.m. (E.D.T.).

[24] Within minutes of arrival, CP employees had unloaded all of the baggage from the aircraft. Standard practice in 1985 was for connecting baggage to be transported to the outbound domestic baggage room at Terminal Two for sorting. From there, baggage connecting to international flights was delivered to the international baggage room, also in Terminal Two.

[25] Airport personnel in the outbound domestic baggage room had been advised on June 22 to expect a large volume of baggage bound for Air India Flight 181/182. Accordingly, arrangements were made for dedicated Air India carts to transport such baggage to a designated Air India luggage belt in the international baggage room. On June 22, the “M. Singh” bag was the only bag from CP Air Flight 060 that had been tagged at the Vancouver Airport to be interlined onto Air India Flight 181 at Pearson.

[26] Air India required all baggage destined for Flight 181/182 to undergo X-ray screening. Baggage, both connecting and that checked-in locally in Toronto, was screened through an X-ray machine located on the designated Air India belt in the international baggage room. Burns International Security (“Burns”) personnel were responsible for X-raying the baggage.

[27] At approximately 4:45 p.m. (E.D.T.) on June 22, the X-ray machine malfunctioned and could no longer be used. Approximately two thirds of the Air India baggage had been X-rayed prior to the malfunction. The Burns supervisor and an Air India security officer directed Burns personnel to use a hand-held explosive vapour and trace detector (the “PD4C Sniffer”) to complete the screening. One of these Burns personnel, Naseem Nanji, testified that the Air India security officer instructed them to listen for a whistling sound, which he demonstrated by holding a match flame to the device. Ms. Nanji observed her co-worker screening suitcases with the PD4C Sniffer, and testified that she heard “short beeps” from the device on more than one occasion that afternoon but did not hear any whistling sounds.

[28] Antonio Coutinho was a station attendant involved in the loading and unloading of baggage for Air India Flight 181 on June 22. He testified that he observed an Air India representative demonstrate the use of the PD4C Sniffer to security personnel and instruct them that they would hear a “beep” if there was an explosive in a bag. The representative put a lit match to the device to demonstrate this “beep”.

[29] Mr. Coutinho subsequently observed a large reddish brown suitcase with a “heavy baggage” tag trigger beeps from the PD4C Sniffer each time it was passed over the bag. The bag had been checked in at Toronto and was destined for Bombay. To Mr. Coutinho’s surprise, security personnel suggested that the lock on the suitcase was triggering the device and allowed it to pass through security. Because the Bombay baggage containers were already full, this particular bag was placed on an excess baggage cart for loading into the bulk cargo compartment at the rear of the aircraft.

[30] Timothy Sheldon, an expert in the evaluation of explosive detection equipment, testified with respect to the operation and effectiveness of the PD4C Sniffer. He explained that the device emitted a slow ticking noise when in operation that accelerated to a “high pitched whine” depending on the level of vapour it detected. The PD4C Sniffer had not distinguished between explosives and dummy packages during testing he had conducted in 1988, leading him to conclude that it was not effective as anything other than as a deterrent.

[31] Burns personnel completed their screening of the Air India baggage by 6:00 p.m. (E.D.T.). They did not set aside any bags of a suspicious nature. The screened bags were put into sealed baggage containers that were then transported to the tarmac for loading onto the aircraft.

F. The Kanishka Aircraft

[32] The aircraft used for Flight 181/182 was a Boeing 747-237B (the “Kanishka”) owned by Air India, the state airline of India. The Kanishka had been properly and regularly maintained by Air India, and its Certificate of Air Worthiness authorizing it to fly commercially was up to date. The aircraft had been declared mechanically sound and safe to depart following mandatory pre-flight inspections at both Pearson and Mirabel.

G. Loading of the Kanishka

[33] Air India Flight 181 was transporting a damaged engine (fifth pod) and engine parts to Bombay for repair. Difficulties in loading these engine parts onto the aircraft at Pearson delayed its eventual departure. The additional weight of the extra engine, which was suspended under the left wing close to the fuselage, moved the aircraft’s centre of gravity forward and required additional loading in the rear bulk hold to counterbalance the additional weight.

[34] Four containers of Delhi bound baggage were loaded onto the aircraft. As well, Baggage Area 52 in the rear bulk hold was loaded with loose overflow baggage destined for Delhi. With the exception of some baggage destined for Mirabel and Heathrow, the balance of the baggage loaded onto Air India Flight 181 was destined for Bombay, including 100 pieces of baggage in Area 51. Any bags which were to be interlined from CP Flight 060 onto Air India Flight 181 on June 22 would have been loaded into baggage areas 52 or 54.

[35] Air India Flight 181 departed Pearson at 8:00 p.m. (E.D.T.), one hour and 25 minutes after it was scheduled to depart. It landed at Mirabel in Montreal at 9:02 p.m. (E.D.T.). Upon arrival, Air Canada employees removed baggage destined for Montreal from the forward cargo compartment of the aircraft and loaded several baggage containers into this same area. No baggage bound for Delhi was removed from the aircraft.

[36] 202 passengers had checked in for Air India Flight 181 at Pearson. These passengers and 22 Air India crew remained onboard at Mirabel where another 105 passengers boarded the aircraft. No boarding pass was issued to the holder of the M. Singh ticket at either Pearson or Mirabel.

[37] On June 22, the Kanishka aircraft, re-designated Air India Flight 182, departed Mirabel for Heathrow Airport in London, England en route to Delhi and Bombay at 10:18 p.m. (E.D.T.), one hour and 58 minutes after it was scheduled to depart.

H. Arrival of the Kanishka Into Shannon Airspace

[38] Air India Flight 182 entered Irish airspace at 12:06 a.m. on June 23, and engaged in routine radio communication with Michael Quinn of the Shannon Air Traffic Control Centre (“A.T.C.C.”). The last recorded communication from Air India Flight 182 to the A.T.C.C. was at 12:09 a.m., though the aircraft remained on the radar screen at the appropriate position, altitude and speed for a number of minutes thereafter. The flight had proceeded normally and had been uneventful in every respect to this point.

[39] At approximately 12:14 a.m., Air India Flight 182 disappeared off Mr. Quinn’s radar screen at 51 degrees north and 12.50 degrees west. After advising the marine rescue coordination centre at Shannon that an aircraft had disappeared off screen, Mr. Quinn repeatedly attempted to re-establish radio and visual contact with Flight 182 and solicited the assistance of other commercial aircraft in the area in doing so. These efforts proved unsuccessful and no further contact was ever made with Air India Flight 182.

I. The Rescue and Recovery Operation

[40] A massive search and rescue operation was immediately launched off the west coast of Ireland upon the disappearance of Air India Flight 182 from the radar screen at the Shannon A.T.C.C. Nineteen ships, both military and civilian, responded to the emergency call. So, too, did numerous aircraft, including airborne search and rescue units from Britain’s Royal Air Force. It quickly became evident to those attending at the scene that what they had hoped would be a rescue operation was in fact a grim recovery operation. Heroic efforts were made to recover as many bodies as was possible in the circumstances. In light of substantial defence admissions in this area, the Crown called only seven of the hundreds of individuals who came together on June 23 to assist in the terrible aftermath of this unspeakable tragedy. The emotional impact of the event on these individuals was evident in the witness box nearly 20 years later.

[41] The first vessel to arrive at the scene was an 18,000 ton container ship, the Laurentian Forest, en route to Dublin from Quebec. Daniel Brown, a young seaman at the time, described how his vessel had diverted off course to head towards the area where Air India Flight 182 had been reported missing. A small lifeboat with seven crew, including Mr. Brown, was dispatched from the Laurentian Forest and spent many hours attempting to retrieve as many bodies as possible from the choppy seas. Mr. Brown emotionally described how he had held victims in his hands whom he had simply not been able to pull into his boat. Various helicopters assisting at the scene lowered recovered bodies onto the Laurentian Forest, all of which were eventually retrieved by an American helicopter and transported to shore.

[42] Captain James Robinson was the Lieutenant Commander of the Irish offshore navy patrol vessel, the L.E. Aisling on June 23, 1985. Upon receiving the emergency report, the L.E. Aisling headed with a crew of 50 to the last reported location of the Kanishka, 60 to 70 miles away. Captain Robinson described the scene that met them as follows:

Over the next 30 minutes or so, as we moved into the area of the major search, more helicopters came on the scene, more ships began calling in. The situation on the bridge of my ship was, as you can imagine, somewhat tense. The area was full of smoke from the searching aircraft. And I must admit I got a little bit concerned myself. I thought, this is what you’ve been trained for; now go ahead and do it. And at 12:32 we found ourselves at what we reckoned to be the datum and we were surrounded by wreckage and just bodies everywhere.

[43] Using a small inflatable craft, divers from the L.E. Aisling recovered as many bodies as they were able.

[44] Captain Robinson was appointed the on-scene commander of the recovery operation shortly after arriving at the scene and coordinated the activities of the 18 other vessels that attended at the crash site to assist. These vessels were primarily civilian and included, in addition to the Laurentian Forest, other large merchant ships, oil rig support vessels and numerous Spanish fishing boats. Included as well was a volunteer lifeboat from Valencia in southwest Ireland operated as part of the Royal National Lifeboat Institution. Captain Murphy testified that he and his crew of seven volunteers went well beyond the 50 mile limit for his vessel in responding to the emergency call. They recovered a number of bodies but were forced to return to shore due to low fuel and darkness.

[45] Cpl. Tom Smyth was an Able Seaman onboard the L.E. Aisling who had been tasked with photographing the crash site and recovery operations. Many of his photographs were entered as exhibits at trial.

[46] Squad Leader John Brooks and Air Load Master Mark Tait of the Royal Air Force were aboard the first of three Sea King rescue helicopters dispatched from the Royal Air Force search and rescue detachment in South Wales on June 23. Mr. Brooks was the radar/winch operator, and Mr. Tait was the winchman who was lowered from the helicopter into the water to recover bodies and, when that was no longer possible, wreckage from the aircraft. Mr. Tait related the logistical and emotional difficulties in recovering the deceased from the sea.

[47] Of the 329 passengers and crew aboard Air India Flight 182, 132 bodies were recovered and transported to Cork Regional Hospital in Cork, Ireland. The bodies of the remaining 197 victims have never been recovered.

[48] Assistant Commissioner Joseph Long was an inspector in the Irish Garda Siochana at the time of the disaster. Inspector Long had overall responsibility for taking physical possession of the deceased, recording this procedure, providing temporary storage of the deceased during this process, and ensuring their transportation to hospital. He testified that upon being informed of the disaster on June 23, he attended at the Cork Airport where he organized Garda, army, medical and spiritual personnel to await the arrival of the deceased. Upon arrival, the deceased were taken to the mortuary where they were pronounced dead by medical personnel and spiritual assistance was rendered. The victims were then transported by army vehicles to Cork Regional Hospital where they underwent post-mortem examinations and were identified by family members.

J. CP Air Flight 003

[49] CP Air Flight 003 departed Vancouver Airport at 1:37 p.m. on June 22 and flew directly to Narita, Japan, arriving at 10:47 p.m. Upon arrival at Narita Airport, Japanese baggage handlers removed the baggage containers from the aircraft and took them to the baggage handling area. They removed what they believed to be all of the Narita bound baggage from container B289 and were in the process of unloading the remaining interlined bags when a bomb (the “Narita bomb”) exploded inside a bag near the opening of the container. Two Japanese baggage handlers, Hideharu Koda and Hideo Asano, were killed instantly by the force of the explosion. Four other baggage handlers were injured. The Narita bomb exploded at approximately 11:15 p.m., 54 minutes before A.T.C.C. communications with Air India Flight 182 ceased.

IV. THE FORENSIC EVIDENCE CONCERNING AIR INDIAFLIGHT 182

A. Background

[50] Following the in-flight disintegration of the Kanishka, most of the aircraft came to rest on the ocean floor almost 7,000 feet below the surface. During the accident investigation that followed, the submerged wreckage was surveyed, photographed and videotaped, and pieces were recovered off the ocean floor. Floating wreckage was also recovered and examined. Each piece was given a unique number called a “target”. The RCMP returned to the crash site for two subsequent salvage operations in 1989 and 1991 during which further underwater video footage was captured and further wreckage recovered. Of the 465 targets observed on the ocean floor, 159 were positively identified as aircraft components or as coming from particular parts of the aircraft. 21 of these targets were ultimately recovered and brought to the surface, comprising approximately 5% of the entire aircraft.

[51] Analysis of the recovered wreckage did not indicate any malfunction, pre-existing defect, metal fatigue or corrosion that could have been the initiating cause of the break-up of the Kanishka. This analysis encompassed the recovered targets, photographs and videos of the underwater wreckage, the cockpit voice recorder, digital flight data recorder, and an examination of the Air India fleet for corrosion.

[52] Most of the foregoing evidence was entered by way of admission and was augmented by the testimony of Sgt. Bart Blachford, the RCMP member with primary conduct of the forensic investigation into the explosion of the Kanishka.

[53] The underwater images of many of the unrecovered targets were converted into computer aided design (“CAD”) images, which in turn were used to simulate certain important targets from the aft fuselage of the aircraft. Under the supervision of the RCMP, these simulated targets were assembled with the actual recovered wreckage in a partial reconstruction of the Kanishka at a warehouse in the Lower Mainland as an aid to understanding the technical expert evidence regarding the destruction of the aircraft. Experts presented portions of their evidence at this warehouse during the trial and referred extensively to the reconstruction in demonstrating their respective theories.

[54] The significance of this expert evidence lies primarily in their differing opinions regarding the location of the bomb that precipitated the destruction of the Kanishka. The Crown theory, supported by the opinion evidence of Professor Christopher Peel, is that it was located in Baggage Area 52, which contained the M. Singh bag. The defence theory, supported by the opinion evidence of Dr. Edward Trimble and Mr. Frank Taylor, is that it was located some five feet forward of that location in Baggage Area 51, containing luggage checked in at Toronto. A conclusion that the defence evidence raises a reasonable doubt with respect to the Crown’s bomb location would fundamentally undermine its theory about the role of these accused in the alleged offences. Thus, while the distance between the two proposed bomb locations is remarkably small, its significance is great.

B. Qualifications of the Experts

[55] The Crown called Christopher Peel, an expert in physical metallurgy; specifically, the effects of internal detonations on the structure of aircraft. Professor Peel is currently Technical Director for the Future Systems Technologies division of QinetiQ, a partly privatized amalgamation of the United Kingdom Ministry of Defense’s research establishments. During his career, he has been involved in over 20 investigations of internal detonations in civilian transport aircraft, including the destruction of Pan Am Flight 103 over Lockerbie, Scotland. Professor Peel testified for the Crown at the subsequent trial of the Lockerbie accused with respect to the location and size of the bomb that destroyed the Pan Am aircraft. Professor Peel’s work on that project led to his assuming a leading role in an international program designed to evaluate and improve the resistance of civilian aircraft to acts of sabotage.

[56] The defence called two experts: Mr. Frank Taylor and Dr. Edward Trimble.

[57] Mr. Taylor was qualified as an expert in the fields of aeronautical engineering, aeronautical design, aviation safety, aeronautical accident investigation, wreckage trail analysis and wreckage reconstruction. Previously a senior lecturer in design, safety and accident investigation at Cranfield University in England and Director of the Cranfield Aviation Safety Centre, Mr. Taylor is currently an air accident investigation consultant. He has performed trajectory and wreckage trail analysis in connection with a number of aircraft incidents, including Pan Am Flight 103 at Lockerbie, a 1995 Brazilian airliner crash, and the 1980 crash of an Italian DC9.

[58] Dr. Trimble was accepted as an expert in the field of aircraft accident investigation, competent to give opinion evidence respecting the causes of aircraft accidents, including identification of where breakup begins within an aircraft. Dr. Trimble is currently an air accident investigation consultant. He was formerly Principal Inspector of Air Accidents (Engineering) with the Air Accident Investigation Branch, and during his long tenure with that organization investigated approximately 75 aircraft accidents, including the incident at Lockerbie.

C. Overview of Experts’ Opinions

[59] Aircraft accident investigation classically relies on three primary analyses: forensic analysis, structural damage analysis, and wreckage trail analysis. With most of the wreckage of Air India Flight 182 resting on the ocean floor, investigators were denied the forensic evidence that had been available at Narita, such as bomb components and chemical residues. Nevertheless, Crown and defence experts agree that it is possible to conclude from the indirect evidence provided by the structural damage to the Kanishka that its in-flight disintegration was precipitated by the detonation of an explosive device approximately four to five times larger than that which exploded aboard Pan Am Flight 103 over Lockerbie. They also agree that the device was located in the rear bulk cargo hold on the left side of the aircraft. As noted above, where they disagree is with respect to the precise location of the device within those broader parameters.

[60] The expert testimony regarding the structural and wreckage trail analysis spanned 14 days of trial and was both technical and complex. The Court convened for two of those days at the warehouse housing the partial reconstruction. This permitted the expert witnesses to explain their respective opinions with reference to the reconstruction so as to facilitate the Court’s understanding of the spatial relationship between the various targets and the damage sustained by them. Extensive written evidence was also tendered, comprising expert reports from all three witnesses in this area, a supplemental critique prepared by Professor Peel and a subsequent response by Dr. Trimble.

[61] What follows is only a cursory summary of this complex body of expert evidence regarding the location of the explosive device that precipitated the destruction of the Kanishka.

D. The Evidence of Professor Peel

1. Basic Principles

[62] As background to his opinion, Professor Peel explained the basic structure of an aircraft and the general effects of the detonation of an explosive device within a pressurized fuselage.

[63] An aircraft’s fuselage is its functional centre and contains the passenger cabin and a lower cargo area. The internal volume of the fuselage is deliberately pressurized to compensate for lower atmospheric pressure at high altitudes. The fuselage comprises a thin aluminum skin stiffened with horizontal structures running longitudinally called “stringers” and hoop-like structures around its circumference called “frames”. Any damage to the fuselage that affects pressurization will produce significant forces on the aircraft’s structure.

[64] Professor Peel described his experience analyzing the effects of explosive forces on the structure of pressurized aircraft and how this led him to identify certain damage patterns that pointed conclusively to the presence of a bomb and its location (“bomb indicators”). In addition to involvement in previous aircraft accident investigations, in particular, that of Pan Am Flight 103 over Lockerbie, Professor Peel also participated in an aircraft explosions research program that had been initiated following the Lockerbie investigation. Designed to investigate the possibility of reducing the vulnerability of civil aircraft to bombs, the program entailed the development of a detailed analytical understanding of the effects of explosive pressures on aircraft, and the validation of that understanding through a battery of over 200 tests and trials. These tests were conducted on simple metal panels through to fully pressurized aircraft. Significant trials involving the latter were conducted at Shoeburyness in 1996 and Bruntingthorpe in 1997.

[65] Drawing from this experience, Professor Peel testified that the effects of a bomb on an aircraft fuselage are both predictable and measurable. The properties of metal dictate the level of pressure it can withstand and, correspondingly, the pressure required for different types of deformation. Aluminum alloy, for example, will first stretch when stress is applied. There are several different stages to that stretching, beginning with elastic deformation (the metal stretches but will return to its original condition once the pressure is released), plastic deformation (the metal does not return to its original condition once the pressure is released), and metal exhaustion or failure. Although aircraft are designed with large safety margins such that the metal does not generally approach the point at which it will plastically deform or stretch to failure, it can reach failure if there is explosive pressure within the fuselage. Professor Peel gave evidence of the typical aircraft pressures and stresses required to cause these different types of deformation. He illustrated, too, with graphs and tables how pressures diminish as one moves away from the source of the explosive pressure and how different zones of damage correspond.

[66] Professor Peel explained that, generally speaking, where a bomb is of a sufficient size to blow a hole in the fuselage, the boundaries of the hole will be limited by the strength of the surrounding material and the size of the explosive device. Surrounding this hole in a relatively symmetrical pattern will be an area of twisted, curled and deformed metal. There will also be an outer zone of metal that has also been damaged, but to a lesser extent. Metal that has been released by the passage of cracks will be folded outwards, while material that has not been cracked but deformed en masse will be bulged outward.

[67] The dynamics of pressurization forces within the aircraft’s fuselage will result in critical cracks emanating from the initial explosive hole. The extent of these cracks will determine the remaining structural integrity of the fuselage. The cracks will tend initially to radiate, and then turn longitudinally as the explosive overpressure reduces and the service pressure (that which is inherent in the fuselage) dominates. In particular, one or two cracks will become dominant and run longitudinally through the structure both forward and to the aft of the blast hole. These cracks will, in essence, separate the fuselage causing it to move apart in the manner of a clam shell. The longer a crack, the more the stress is intensified at its tip. Where explosive pressures drive a crack longer than two or three bays in length, the crack will run unstoppably and catastrophically through the fuselage.

[68] When describing locations within an aircraft, the experts speak of “body stations”. These are vertical stripes around the circumference of the fuselage at 20 inch intervals and numbered in sequence from the front to the rear. “Forward” refers to the direction of the cockpit at the front of the aircraft, while locations to its rear are described as moving “aft”. The left and right sides of the aircraft are determined as if facing forward.

[69] As an aide to understanding the opinion evidence to follow, a CAD diagram showing four views of a Boeing 747-200 fuselage with the numbered targets is attached as Appendix “B”. A CAD diagram focused on the aft fuselage targets near the bulk cargo area is attached as Appendix “C”.

2. Location of the Bomb

[70] Professor Peel locates the explosive device that destroyed the Kanishka at or near Body Station (“BS”) 2020 in Baggage Area 52 Left. He relies upon six bomb indicators in so concluding:

a hole in the belly skin and cargo compartment floor of the aft fuselage;
a longitudinal crack running along the left side of the fuselage forward of the aft end of Target 8;
a longitudinal crack running aft along Target 320;
a zone of damage on the left side of the aircraft encompassing Targets 1011, 656 and 26;
radial cracking on Target 26; and
creasing/bulging on the left and right sides of the aircraft with apexes roughly centred at BS 2020.

[71] Dr. Trimble’s approach to the structural analysis of the Kanishka involves a consideration of a broader range of targets than listed above. In order to focus on the main areas of disagreement between the experts, however, Dr. Trimble’s evidence regarding these particular targets will be integrated into the review of Professor Peel’s evidence that follows.

a. Hole in the Aft Fuselage

[72] Professor Peel testified that an explosive hole in the fuselage of an aircraft will produce characteristic patterns of damage:

1. A hole blasted in the structure -- The boundaries of this hole will be limited by the strength of the surrounding material and the size of the explosive device.

2. A surrounding area of severely damaged material that remains attached to the surrounding structure -- The metal in this area will have been torn into slivers or petals typically triangular in shape (because of radiating cracks emanating from the blast hole) and folded back or curled. The metal will be torn between rivet holes. The mechanical properties of metal suggest that this zone will be a few bays in extent.

3. An outer zone of deformed material -- Metal that has been released by the passage of cracks will be folded outwards, while material that has not been cracked but deformed en masse will bulge outwards. This zone of lighter damage will also exhibit failure of the shear ties (attaching the fuselage skin to the frames) by outwards displacement of the skin.

[73] The extent of these different forms of damage must be mutually consistent and must also correspond with the direction of crack propagation.

[74] It is evident from the foregoing that an identifiable blast hole in the fuselage is a primary bomb location indicator. Professor Peel states that the surrounding ragged edge to the blast hole in the Kanishka can be observed in the tear at the aft end of Target 8 that does not follow the attachment rivets, a similar curve at the aft end of Target 11, and the twisted metal and heavily compressed frames on Target 656. The relatively undamaged forward edge of Target 320 at BS 2100 allows the aft extent of the initial blast hole to be refined forward a number of bays. According to Professor Peel, only a bomb location of BS 2020 is consistent with the location of the hole, the surrounding zones of damage and the direction of crack propagation.

[75] Dr. Trimble generally agrees with Professor Peel with respect to the forward edge of the blast hole but does not otherwise comment with respect to the size expected of the hole. Although he locates the explosive device in the region of BS 1960 – 1980, further forward than does Professor Peel, he explains that the forward edge identified by Professor Peel is also consistent with his location because there is a substantial reinforced fuselage circumferential joint at BS 1960 which would have constrained the initial major rupture of the belly skin.

[76] Professor Peel counters that the physical evidence is simply inconsistent with the expected patterns of damage of an explosion in the region of BS 1960. Such an explosion would have been expected to have created, in principle, a hole from BS 2040 forwards to BS 1880, a ragged edge from BS 2090 to 1830, and surrounding detached skin and folding damage from BS 2120 to 1800. This is not the case. Instead, for example, the aft ends of Targets 8 and 11 are intact where the hole should have been. Professor Peel describes Dr. Trimble’s theory about the circumferential joint constraining the rupture of the belly skin as unsound, and offered calculations regarding the pressures that joint is able to withstand. Although the reinforced area is approximately three times stronger than the fuselage skin, the sheer explosive pressure of a bomb at Dr. Trimble’s location would still have shattered the area, including the area of fuselage skin immediately forward of the reinforced joint which remains intact. He offered calculations to substantiate his opinion. Target 8 also exhibits cracks running towards the proposed bomb location, a physical impossibility if a primary rather than secondary crack.

[77] In addition, Professor Peel asserts that the pattern of damage postulated by Dr. Trimble creates an unacceptable level of asymmetry. Dr. Trimble assigns damage due to explosive forces at least as far forward as the keel beam joints at BS 1480, a distance of 24 bays from his bomb location. At the same time, he claims that overpressure damage ends aft of the bottom edge of Target 26, less than 2 bays away from the bomb location. According to Professor Peel, a bomb of sufficient explosive capacity to damage the keel beam joint from BS 1960 would have created severe explosive damage far aft of Target 26.

b. The Longitudinal Crack

[78] Another important bomb location indicator identified by Professor Peel is the presence of a major longitudinal crack running both forward and aft of the initial blast hole.

[79] Professor Peel identifies this crack on the Kanishka as running forward along the left edge of Target 7 and Target 8 from BS 1965 to the bulkhead at BS 1480. It runs aft from approximately BS 2100 along the left edge of Target 320 to the bottom edge of Target 74. These parameters would place the bomb aft of BS 1965 and forward of BS 2100, thus consistent with his proposed bomb location of BS 2020.

[80] The aft-running crack as identified by Professor Peel would have split Targets 320 and 307 along their shared boundary. The remaining crack directions on Target 307, which must be taken into account in determining whether the manner in which that target separated is consistent with this proposition, are as follows: the crack at the target’s aft edge runs upward for approximately 15 inches until it reaches the corner of Target 74; the balance of the crack runs downwards. The crack runs forward along the top edge of the target, and the crack separating the forward edge of Target 307 from Target 656 runs downward. Professor Peel suggests that the following detachment sequence is consistent with these crack directions:

the initial blast hole defined the forward edge of Target 656 and the longitudinal crack ran aft along the bottom of Targets 307 and 74;
as the left side of the fuselage swung up, the bottom edge of Target 307 swung up and out with it;
a radial crack from BS 2020 forwards likely ran along the lower edge of Target 369 above the passenger floor and went up through the window belt aft of Target 369. This left Target 307 attached to metal missing in the reconstruction at its top edge and Target 74 along its aft edge;
a secondary crack ran forward along the top of Target 356 to Target 656 under the passenger floor. Targets 307 and 656 were attached to the fuselage only at the aft end of Target 307, much like a hinge; and
the final detachment of Target 307 occurred by downward tearing along the aft edge, following which Targets 307 and 656 detached together by rotation in an outwards, upwards and aft direction.

[81] Professor Peel also explained that tests at Bruntingthorpe demonstrated a remarkably similar deformation and separation pattern as is seen on Target 307.

[82] With respect to Target 320, Professor Peel notes the following observations as supporting his theory that the aft portion of the longitudinal crack ran along the junction of Targets 307 and 320:

the crack running aft from the blast hole is aligned with the forward running crack, and both are straight in nature;
the fracture on the left edge of Target 320 is sinusoidal (wave-like), not gently folded downwards as represented on the simulated target in the reconstruction. It therefore mirrors the sinusoidal nature of the forward running longitudinal crack, and also matches the sinusoidal fracture edge on Target 307; and
the lack of heavy deformation on the left side of Target 320 indicates that this is the edge to the primary crack.

[83] Dr. Trimble agreed in principle with the concept of a longitudinal crack but took issue with Professor Peel’s identification of its parameters. With respect to the forward portion of the crack, he indicated that the gap in recovered wreckage aft of Target 8 rendered it speculative to conclude that it originated any further aft than BS 1965. The aft portion of the crack and its implications for the mode of separation of Targets 307 and 320, he stated, were inconsistent with the crack direction on Target 307.

[84] In order for Target 307 to have detached as Professor Peel suggests, the fracture of its aft edge should have been entirely upwards. It was not, however, as it ran downward at its top. Moreover, the fracture along the top edge should have propagated in an aft direction, not forwards. Professor Peel’s speculation about what the missing material above Target 307 might have revealed is contrary to sound principles of aircraft accident investigation which ground analysis on available physical evidence.

[85] Dr. Trimble also states that had Target 307 detached in the manner suggested by Professor Peel, it would have been found in the early part of the wreckage trail. Instead, it was found very late in the trail, even later than Target 320 which was itself late in the trail. (Mr. Taylor noted in his analysis that the only way he could account for this was that Target 307 must have been delayed by being trapped in some structure at the rear of the aircraft.)

[86] Dr. Trimble was also critical of the comparison of Target 307 to the trials at Brutingthorpe, stating that the manner in which the equivalent piece separated was so markedly different as to be an unreliable comparable.

[87] Dr. Trimble proffers a different explanation for the separation of Target 307. He suggests that the curl in the upper aft corner that Professor Peel refers to as a hinge is actually an area of outward venting. The fracture running forward along the upper edge of T307 emanates from this curl, as does the fracture emanating downward along the aft edge. The only area that does not correspond to this analysis is the lower 15 inches of Target 307 in the aft end. Dr. Trimble rationalizes this upward progression of the fracture as possibly the result of venting. He describes the target as having flapped outwards and downwards in the same manner as the right side of Target 320 flapped downwards.

[88] With respect to Target 320, Dr. Trimble states that the sinusoidal nature of the left side fracture is evidence of quilting (which indicates high levels of overpressure), and correlates with the evidence of quilting on Target 307. The presence of quilting implies that deformation occurred before the passage of the crack separating Targets 307 and 320. Early passage of a crack would have released the high internal pressure and removed the conditions for quilting. This, in turn, suggests that the crack was secondary rather than primary.

[89] Dr. Trimble also states that even if the aft-running crack between Targets 320 and 307 could be said to have been an early longitudinal crack, the available physical evidence locates the beginning of this fracture at the front left corner of Target 320 at BS 2100. There is no recovered wreckage to support the conclusion that the fracture began at any point further forward than BS 2100, and it is therefore entirely speculative to rely on the aft-running fracture to support a bomb location at BS 2020.

[90] Although Dr. Trimble did not challenge the concept of an aft-running crack, he did not propose a route alternative to that identified by Professor Peel. It was suggested to him, and he agreed, that there were only two choices for the crack, either to the right or left of Target 320. Dr. Trimble agreed in cross-examination that the crack running along the right side of Target 320 could not have been that crack due to the significant folding on that side.

[91] Professor Peel responded to Dr. Trimble’s evidence by identifying a number of difficulties with his theory regarding Target 307. He described Dr. Trimble’s explanation for the change in direction in the vertical fracture at the aft of the target as unconvincing. He also stated that had a separate hole been blown in the aft end of Target 307 to initiate the crack running forward along the top of Target 307, there should have been a corresponding aft-running crack severing Target 74; a crack formed at an explosively generated hole that ran in only one direction was unlikely.

[92] With respect to Target 320, Professor Peel responded that the relatively light sinusoidal deformation evident on the crack along the left of Target 320 was the result of the buckling process associated with the passage of the crack and the blast wave, not the result of quilting. He disagreed fundamentally with Dr. Trimble’s assertion that quilting must necessarily precede cracking, explaining that results from his trials indicated that the passage of cracks occurs in well under one second yet pressure is maintained for up to 20 seconds. Pressure is therefore not immediately dumped, and depressurization takes significantly longer than cracking.

c. Area of Damage on the Left Aft Fuselage (Targets 656, 1011, and 26)

[93] As discussed, Professor Peel expected to observe an area around the initial blast hole comprised of highly deformed and damaged material. He identified this area on the Kanishka as encompassing Targets 656, 1011 and 26.

i. Target 656

[94] Target 656 comprises the remains of a fuselage frame from the left side of the aircraft at BS 2040. A small piece of fuselage skin and a short damaged length of vertical floor support strut remain attached. Target 656 was joined to Target 307 before the explosion. This target is an area of contention between the experts with Professor Peel arguing that it sustained direct blast damage and Dr. Trimble maintaining that it sustained secondary damage from a baggage strike.

[95] Professor Peel identifies two types of explosive blast damage to Target 656. Firstly, the skin attached to the frame is bulged outwards aft of the remaining portion of the frame, and exhibits a tight curl on its forward edge. Both the bulging of the fuselage skin with its detachment from the underlying structure and the tight curl are characteristic of explosive damage. Secondly, there is a severe crease in the fuselage frame downwards and aft at BS 2040 as if “stomped on by a large foot”. Professor Peel asserts that explosive blast pressure bent this frame, indicating that the bomb location was above and slightly forward of the creased area of the frame at BS 2040.

[96] Professor Peel maintains that the intense nature of the damage sustained by Target 656 at BS 2040 suggests relative proximity to the explosive device. This is consistent with a bomb location at BS 2020, not one more remote such as BS 1960.

[97] He also states that the relationship between Target 656 and those that surround it is significant:

· Target 1011 – The badly damaged remains of the transverse beam at the aft end of Target 1011 is located at BS 2040, immediately above the frame and forward end of T656. Both these remnants show evidence of intense damage and deformation in an aft direction; and

Target 307 – Target 656 joins Target 307 at approximately BS 2060. The continuity of a crease running between the two targets indicates that they were initially damaged as one piece and then separated in a secondary process. Both targets also exhibit signs of overpressure damage. Taken together, they indicate that there was clearly significant overpressure damage and deformation both at and aft of BS 2040. Target 656, however, exhibits more intense damage than does Target 307, suggesting it was closer to the blast.

[98] Professor Peel maintains that the impact of a piece of baggage striking the vertical strut, as suggested by Dr. Trimble, simply cannot account for the totality of damage incurred by the target. Moreover, a heavy bag will travel at a much slower speed than a blast wave. Accordingly, he states, it is difficult to contemplate how blast damage could be imparted to Targets 656 and 307, yet have them remain in place sufficiently long for a bag to strike the floor strut.

[99] Dr. Trimble disagrees that the damage sustained by Target 656 is explosive damage. He responds that the frame should have been deflected aft if the bending had been caused by explosive pressure. However, it was not. Rather, the lower arc was torsionally twisted aft relative to the upper arc, with a sharp transition between the two. The most that can be said is that the damage to Target 656 is consistent with an explosive force at some position forward of the target within the bulk cargo compartment.

[100] Dr. Trimble offered a detailed analysis of the damage sustained by Target 656. He notes that the aft outboard flange of the frame is deformed outwards and cracked between each of the shear ties. This is consistent with an aft deflection of the vertical support strut (which supports the cabin floor above), which could have occurred due to baggage from the bulk compartment being jettisoned aft from the source of the explosion. He explains the creasing which extends across Targets 656 and 307 as having been induced by the bending of the aft fuselage immediately following the explosion.

ii. Target 1011

[101] T1011 is a section of passenger floor from the left side of the aircraft between BS 1960 and BS 2040. (See Appendix “D”). The floor, though fragile and cracked, is relatively intact between BS 1980 and 2040. Attached to the target are four transverse beams supporting the passenger floor positioned at BS 1980, BS 2000, BS 2020 and BS 2040. The outboard edges of those beams were attached to the fuselage of the aircraft with flanges at the top and bottom of each. The inboard edge of T1011 would have been directly above the outboard edge of the bulk cargo bay floor at this location, which includes all of Baggage Area 52 Left and part of Baggage Area 51.

[102] Professor Peel and Dr. Trimble do not agree as to the manner and direction in which the transverse beams are deflected, which has significant implications for where they place the explosive device relative to the Target 1011. Professor Peel locates Target 1011 outboard and above of an explosive device at BS 2020, while Dr. Trimble places it outboard and aft of an explosive device located forward of BS 1980.

[103] In describing the deflection of the transverse beams, Professor Peel states that the lower outboard portion of the beam at BS 1980 has been deflected firmly forwards, the beam at BS 2000 has been similarly deflected forward but to a lesser degree, and the beam at BS 2020 remains nearly vertical. He describes the beam at BS 2040 as having been deflected aft, but puts little weight on this point given its highly damaged state.

[104] Professor Peel states that this pattern of damage is consistent with explosive pressures being developed with a face-on aspect to varying degrees with respect to the beams at BS 1980, 2000 and 2040, and with mostly side-on pressure with respect to the beam at BS 2020. He described the difference between face-on and side-on pressures by comparing them to a wave striking a breakwater:

I’d like just to make the analogy with a wave sweeping up a beach and striking a breakwater. I think it’s fairly simple to understand that as the wave strikes the end of a breakwater it will slide along the breakwater easily, the breakwater will feel very little pressure. But if the wave strikes the breakwater at an angle or even face on, then the waves will be reflected, the pressure will build up on that breakwater. So it is with explosives. This is really quite critical because the difference between the reflected pressure and the side-on pressure could be as much as 10 to 1.

[105] In his opinion, this principle is reflected in the damage to the transverse beams on Target 1011 and unambiguously places the bomb at BS 2020.

[106] Professor Peel makes a number of further observations:

the outboard ends of the three remaining beams are significantly more deformed than their inboard ends, which are close to their original position and remain at right angles to the passenger floor. Aligning the inboard end of the transverse beams to their original upright positions demonstrates that the upper outboard portions of the beams have been preserved in near vertical position and that it is the lower outboard portions at BS 2000 and 1980 that have been deflected forward;
the top edges of the transverse beams are flanged. The flanges at the outboard end of the beams at BS 2000 and 1980 are bent in a manner consistent with pressure from an aft direction;
the passenger floor appears to have been pushed upwards in the region of BS 2020. There is a crack at BS 1980 with bending upwards on either side, and the floor panel is severed at BS 1960. This pattern of damage is again consistent with an explosion at BS 2020;
damage to neighbouring targets is wholly consistent with a bomb location of BS 2020:

Target 656 – While the beam at BS 2040 has detached from Target 1011, a remnant of the fuselage frame from BS 2040 remains attached to Target 656, and is bent strongly aft. This portion of deformed fuselage frame on Target 656 lay precisely below the heavily damaged and missing section of beam on T1011.
Target 26 – Target 1011 adjoins Target 26. The damage to Target 1011 mates up with the radial cracking and folding on the lower forward portion of Target 26.

[107] Professor Peel was questioned how Target 1011 could have survived if it had been located so close to the explosive device. He replied that the explosive force would have ruptured the passenger floor directly above the bomb and would have radiated outboards both above and below the remnants of the floor, thus equilibrating the explosive pressures on both sides of the floor. Target 1011 then rotated outwards and upwards from the fuselage together with Target 26.

[108] Dr. Trimble describes T1011 as:

…probably the most significant target in all of the wreckage at our disposal, and this is the target which locates the longitudinal limits of this device.

[109] In direct contrast to Professor Peel, the thrust of Dr. Trimble’s evidence is that the bottom shear ties of the outboard end of the beams had essentially remained undeflected; rather, it was the upper shear ties that exhibited aft deflection relative to the lower ties. He also points to the damaged condition of the passenger floor forward of BS 1980 and to the relatively undamaged condition of the floor on Target 1011.

[110] Dr. Trimble describes this damage pattern as the result of a progressive cascade failure from a heavy upward, aft and outboard thrust from an explosion forward of BS 1980. Its maximum effect was experienced in the corner formed by the intersection of the support beam, the floor and left side fuselage at BS 1980, leading to an upwards bulging of the floor and the aft deflection of the upper shear tie at that location with the floor being taken aft with it. The frame attachments at BS 1980 having failed, a similar process would then be inflicted upon the corresponding joint at BS 2000 but with less force and, accordingly, less deflection of that shear tie. The same but even further reduced effect was suffered by the joint at BS 2020. This evidence, he concludes, solidly places the device forward of BS 1980.

[111] Dr. Trimble also notes other evidence of damage on Target 1011 consistent with this explanation. There is outwards kinking deformation on the lower flange and upwards flexing of the upper flange, consistent with a heavy thrust within the outboard area of the beam on its forward side. There is crippling damage to the stringer clip resulting from the beam having been displaced forcibly in an aft direction. As well, the floor has suffered longitudinal shearing with a loss of its outboard section.

[112] Dr. Trimble disputes Professor Peel’s theory, stating that had the blast been from BS 2020 and the lower portion of the beams deflected forward, he would have expected that the lower shear tie on the outboard end of each beam would have been displaced at a greater angle than the upper shear tie. In fact, he says, however, the opposite occurred.

[113] Professor Peel responds that the damage sustained by T1011 is not consistent with a cascade sequence of failure progressing aft from BS 1960. He explains that a cascade effect occurs when the failure of one element of a structure leads to the failure of the next such element because loads are transferred from the failing element to the next sound portion of structure. Dr. Trimble’s theory, he says, is based on the incorrect premise that an explosive load exerts a force at one localized point. In fact, explosive effects are not confined to a particular point since the blast creates pressure over an expanding front. Here, the high rate of explosive loading would have swept along the transverse beams in an outboard direction and struck the skin first at BS 2020 and then at roughly even intervals at the outboard ends of the beams until the pressure was insufficient. The deformation or deflection of any of the beams is not dependent upon the failure of its neighbour as required by a cascade theory.

[114] Professor Peel adds that it is a basic principle of structural performance that loads stressing a material beyond its strength cannot be transmitted through the material to cause a stronger component to fail. The frame-beam intersections in the area at issue here are stronger than the floor and floor attachments. Consequently, the upwards rotation of the lightweight floor in the region of BS 1960 could not have deformed the frame-beam intersections aft of that point in the manner suggested by Dr. Trimble. Moreover, he adds, as a matter of aircraft design, there would have been no floor paneling immediately above the most deformed corner of the beam/frame intersection to transmit the load in the manner proposed by Dr. Trimble in any event. To this, Dr. Trimble acknowledges that there is a designed gap between the floor and the left sidewall but maintains that the outboard edge of the floor paneling did not appear to present a finished sealed edge as one would have expected.

iii. Target 26 – Radiating Cracks

[115] Professor Peel described the concept of radiating cracks, another important bomb indicator. Both at Lockerbie and in his materials and explosions testing, rapidly growing cracks radiating from the initial explosive hole were observed. These cracks ran outwards from the centre of the explosion and released the metal from the structure, which then bent, folded and curled outward. Some panels, being completely released, were accelerated from the aircraft. Because the stresses in the circumferential direction generated by internal pressure are twice those in the longitudinal direction, there is a natural tendency for vertical cracks to turn and run longitudinally. Explosive over-pressure in the area of the bomb will be severe and give rise to high local stresses in all directions. Cracks will therefore tend to initially radiate, and then turn longitudinally as the explosive overpressure reduces and the service pressure becomes dominant. This turning effect will be emphasized as cracks approach the window belt, a stronger reinforced area of the fuselage.

[116] Professor Peel observed radiating cracks in the left aft fuselage of the Kanishka. Targets 287, 658, 26 and 369 are separated by cracks in the fuselage skin that radiate from the hole in the left aft fuselage from BS 2000 to 2040. The two cracks that border T26 are particularly significant since they are initial radiating cracks emanating from the bomb and driven by explosive pressure. This is evident from the fact that the folds present on Targets 658 and 369 do not continue into Target 26, clearly indicating that the cracks preceded the folds. These radiating cracks can be projected downwards to an originating point at or near BS 2010. Significantly, the direction of deflection of the transverse beams on Target 1011 points to the same explosion location.

[117] Dr. Trimble did not dispute the concept of radiating cracks but was of the opinion that the available physical evidence did not support Professor Peel’s conclusion that the cracks bordering either side of Target 26 were indeed such radiating cracks.

[118] At Lockerbie, where investigators had been able to recover virtually all of the wreckage, it had been possible to pinpoint the location of the explosive device and to trace fractures radiating from the epicenter of the blast. In the present case, however, the position of the bomb is not known, there is a large area for which there is no recovered wreckage, and there are several large pieces of wreckage in the left aft fuselage which are separated by vertical and diagonal fractures in the window belt. Consequently, states Dr. Trimble, it is entirely speculative to conclude that all of these fractures constitute radiating cracks. Given the bulging in this area of the left aft fuselage, it is more probable that the associated fractures were caused by the bomb force directly striking the window belt.

[119] Moreover, even if these fractures could be considered to have resulted from radial cracks, there is no logical reason to choose the fractures separating Target 26 as the radial cracks which dictate the location of the bomb. For example, one could have equally legitimately chosen the cracks separating Target 658, which would have led to a different bomb location. Dr. Trimble also states that radiating cracks are an inherently unreliable bomb location indicator since it is difficult to determine their point of initiation. Even if Target 26 was a reasonable choice, the associated fracture paths do not dictate a bomb location immediately below it. Given the damage pattern in the bottom front area of T26, a bomb location at BS 1960 or 1980 would also have been legitimate.

[120] Dr. Trimble further states that Professor Peel has not provided any detailed support for his proposition that the radiating cracks are consistent with the direction of the deflection of the beams on Target 1011. To the contrary, the folding damage to the bottom front area of Target 26, when considered with all of the other damage in the area, is more consistent with the area being the aft boundary of the left side bulge (discussed further below).

[121] In responding to these criticisms, Professor Peel notes, firstly, that the circumferential cracks on the left aft fuselage are continuous and can be traced from low down on the fuselage to above the window belt without intersections. Furthermore, the crack path immediately before the window belt shows how certain of these cracks were deflected by the window belt, though they ultimately penetrated it. This suggests they are not a secondary failure mechanism and may be a strong indicator as to the source of crack initiation. Professor Peel suggests that it would be remarkable if four parallel cracks formed in the window belt in the manner put forth by Dr. Trimble and then coalesced in the region of the blast hole.

[122] Professor Peel also points out that Dr. Trimble did not dispute the representation of the folds on Targets 369 and 658, the targets neighbouring Target 26. That these outwards folds do not continue into Target 26 strongly suggest that Target 26 was at the source of the explosion and was separated by early radiating cracks before the folds in the two neighbouring targets were formed.

[123] Professor Peel states that Dr. Trimble appears to have formed his opinion based on the early stages of wreckage construction when Targets 26, 287 and 658 were incorrectly positioned with respect to each other. This incorrect position may have given him the misleading impression that the fold low down on Target 26 was somehow related to the folds in Targets 658 and 287.

d. Matching Bulge Apexes in the Left and Right Aft Fuselage

i. Left Aft Fuselage

[124] Target 26 is a simulated target on the left aft fuselage from BS 1990 to BS 2140, close to the bomb locations of both experts. Two vertical creases run through the window belt on the target at approximately BS 2020 and 2050. The targets surrounding it, from fore to aft, are Targets 28, 287, 658, and 369. The experts disagree with respect to the placement of Target 26 within the bulge in the left aft fuselage. Professor Peel places Target 26 at the apex of a bulge bounded by Targets 658 and 257 in the front, and Target 369 in the aft. Dr. Trimble places Target 26 at the aft boundary of a bulge situated further forward and comprising Targeting 28, 287, and 658.

[125] Professor Peel explained how marked creases are a distinctive feature associated with proximity to an explosive device, as was seen at Bruntingthorpe and Lockerbie. Such creases mark the apex of the bulge where the curved blast front first strikes the fuselage skin. The faceting results from the stiffening provided by the strong frames and also from the curved nature of the blast front. Professor Peel observed such faceting on Target 26 on the left of the fuselage and similarly on Target 71 on the right (discussed further below). These creases are roughly centred at BS 2020.

[126] Target 26 exhibits a general bulging of the skin outwards and upwards, as well as a faceted appearance. Professor Peel identifies a pronounced similarity between the creasing on Target 26 and that observed through the window belt above the blast hole in the aircraft destroyed at Lockerbie. He places Target 26 at the apex of the massive outwards bulge in the left aft fuselage comprising Targets 287, 658, 26 and 369. The lower portion of the fuselage skin has folded in an outwards and forward direction. Target 26 separated from Targets 658 and 369 early in the process and, with the fold at the aft end acting like a hinge, was driven outwards, upwards and to the rear. Both Targets 658 and 369 folded upwards and outwards across the top of the window belt.

[127] Professor Peel was questioned how it could be that the greatest explosive force will naturally be experienced in the region closest to the device and yet Target 26 shows only creasing and no massive deformation. He replied that while there is no massive deformation on the target, there is a fairly intense curl at its bottom which is characteristic of explosive damage. According to Professor Peel, this curl represents the top and centre of the blast damage hole in the fuselage. There are also broken stringers higher up on Target 26 and a general outwards bulging of the target as a whole. He repeated that it would have accelerated away quickly in the detachment sequence.

[128] Dr. Trimble agrees with Professor Peel that Target 26 separated from Targets 658 and 369, and, from the folds at the aft end, was driven outwards, upwards and to the rear. In his opinion, however, such displacement is consistent with the effects of a large outward thrust upon the lower/forward region of the target at BS 1980.

[129] Dr. Trimble also disagrees with Professor Peel that the fold across Targets 658, 287 and 28 does not continue into Target 26, citing the reconstruction as a relevant factor in this regard, i.e., that the cutting of the lower area of Target 26 to fit the reconstruction into the warehouse significantly reduced the visual representation of the well-founded deformation pattern which had previously been obvious. Dr. Trimble states that the initial positioning of these targets was more soundly based upon the observed deformation and revealed a number of characteristics that have subsequently become obscured. Firstly, the bulging on the left fuselage was limited to Targets 287, 658 and the bottom front corner of Target 26, thus consistent with a spherical blast centered in the middle of this area. Secondly, the creasing on Target 26 was demonstrably outside the area of the bulge. Finally, there was no comparable bulging aft of Target 26; had the creasing been at the epicenter of the spherical blast as Professor Peel suggests, there should have been as much plastic deformation aft of that point as forward of it.

[130] Accordingly, Dr. Trimble sets the parameters of the bulge on the left aft fuselage at Target 26 in the aft, Target 28 in the front, and Targets 658 and 287 in between. The centre of this arc would be forward of the BS 2020 bomb location claimed by Professor Peel. Dr. Trimble explains the outwards deformation below the window belt on Target 369 as simply indicative of overpressure venting. A bulge with these parameters would also explain why the upper area of Target 26 exhibits no continuation of the curl/fold deformation apparent on Target 658, and the relatively flat nature of Target 658.

[131] With respect to the creasing on Target 26, Dr. Trimble asserts that creases that lie within vertical cracks in the window belt are not accurate indicators of bomb location. More energy is required to drive a crack through the reinforced window belt than to crease it, and therefore creases in such a scenario must necessarily mark an area further away from the bomb location, not the apex of the bulge. Moreover, bulging in the fuselage skin can only occur while it remains a pressure vessel. Once the fuselage is ruptured by the passage of cracks, the pressure is dissipated and the conditions for creasing are accordingly removed. Dr. Trimble states that Bruntingthorpe and Lockerbie are distinguishable; the window belts were not fractured by explosive forces and therefore the creases in those cases can accurately be said to have marked their respective apexes. Dr. Trimble describes the creases on T26 as “pseudo-arc-like” and states that they are not unexpected indications at a radius from where he would place the explosive device.

[132] With respect to the curl at the bottom of Target 26, Dr. Trimble says that it marks the aft extremity of the bulge in the left side of the aircraft caused by the explosion.

[133] In response, Professor Peel maintains that cracks in the window belt can lie outside or surround creases because the formation of creases in the window belt by outwards displacement requires more energy or higher pressure levels than does the propagation of cracks through same. Once a crack exceeds one or two bays in length, it will drive itself at stress levels well below those required to crease or bulge the material. This is a basic principle of fracture mechanics borne out by testing and service events such as Lockerbie.

[134] Dr. Trimble, in turn, replies that it is universally accepted that more stress is required to fracture aluminum than to merely deform it. His simple point is that the minor creasing found on Target 26 is indicative of far less stress than the fractures between Targets 28, 287, 658 and 26.

[135] Professor Peel also disagreed with Dr. Trimble’s assertion that early radiating cracks would dissipate the pressure in the fuselage required for bulging. Rather, he states, the time it takes for the internal pressure to vent and reach equilibrium with the outside atmosphere is significantly greater than the time for deformation to occur and cracks to grow. The passage of cracks will perhaps take one tenth of a second after the initial damage to penetrate the whole of the aircraft, but pressure will be maintained for several tenths of a second thereafter because of the significant time required to vent. This response was both predicted and borne out by Professor Peel’s testing. In fact, he points out, this principle is evident in the present case as well. Cracks are observed and agreed by both experts to escape from the blast hole and propagate through the fuselage; bulged and folded material is limited to a region closer to the explosive. Clearly, therefore, cracks can grow under lower levels of pressure than deformation requires.

ii. Right Aft Fuselage

[136] Professor Peel identifies a bulge in the right aft of the Kanishka, the apex of which roughly matches that on the left at BS 2020. The two main targets it encompasses are Targets 71 and 40. Target 71 is a simulated target from the window belt of the right aft fuselage extending from BS 1920 to 2080. It sits immediately above baggage area 52 Right. Target 40, also simulated, lies immediately below Target 71 and runs from BS 1820 to 2080. It extends from the level of the cargo floor and meets Target 71 at the window belt. Target 40 encompasses the main aft cargo door and the bulk cargo door further aft. Professor Peel asserts that Target 71 marks the apex of explosive damage on the right side of the aircraft. Dr. Trimble agrees with some of Professor Peel’s description of damage sustained by the targets, but counters that a lack of explosive damage to a critical area at the top of Target 40 at BS 2020 points to the location of the device at BS 1960.

[137] Professor Peel identifies Target 71 as marking the apex of the explosive damage on the right side of the aircraft. He points to the following deformation:

· Targets 71 and 321 (located to the front of Target 71) reveal a large bulge in the right hand side of the aft fuselage. A fracture in the window belt at BS 1920 separates these two targets. Target 321 shows a significant double fold along the lower edge outwards, upwards and forwards. The direction of this fold mirrors the folds seen on the left side in Targets 287 and 28;

· Target 71 exhibits a right angle vertical crease through the window belt at BS 2020 with a lesser crease at BS 2040;

· Target 71 has marked faceting with a significant triangular curl between BS 2040 and 2060, typical of blast damage;

· Target 282 (to the aft of Target 71) is detached from the frames by having been driven outwards, upwards and to the rear; and

· the apex on Target 71 matches up with the apex at Target 26 on the left side of the aircraft, centered roughly at BS 2020.

[138] According to Professor Peel, the damage to Target 40 is not inconsistent with his proposed bomb location. The top aft edge of the aft cargo door in that target is displaced slightly outward. This is consistent with deformation of the door by the cargo container immediately inboard at Baggage Area 44 Right (Target 24). Using either expert’s location for the explosive device, the pressures on the hinge area are sufficient to spring it in this manner.

[139] Professor Peel was questioned how the bulk cargo door and its surrounding structure in Target 40 could have survived relatively unscathed if the device was where he placed it. He replied that the right side of the fuselage skin is designed with greater strength than the left side since the normal wear and tear with the use of the large cargo doors on the right side would otherwise damage the fuselage structure. Accordingly, the fuselage skin between these doors is reinforced, doubled, and in some areas, trebled, in thickness. Furthermore, the bulk cargo door is a plug door that is recognized in the aircraft industry as being of significantly greater strength than those opening outwards, such as the container door, which are reliant upon the strength of its hinges and latches.

[140] Dr. Trimble counters that the damage sustained by the right aft fuselage is consistent with a major outboard force in the region between BS 1920 – 1980. The primary factors upon which he relies in this regard are as follows:

· the significant outwards displacement of the aft corner of the very strong main cargo door at BS 1920;

· the rupture of the window belt between Targets 321 and 71 through BS 1920; and

outward curling of the fuselage skin on Target 40 approximately between BS 1920 and 1980. He notes that it is surprising that there is a lack of similar deformation in the skin above the bulk cargo door which is of the same thickness.

[141] Dr. Trimble agrees for the most part with Professor Peel’s description of the damage to Target 71 but challenges his conclusion that the pronounced bending in the target was caused by a major thrust in the window belt. Such a scenario does not correspond with the other evidence, including the outburst pattern on the left side comprising Targets 287, 658 and 26, and 1011. Dr. Trimble explains the crease as resulting from the left deflection of the aft fuselage after it had been damaged structurally by the explosion.

[142] Professor Peel, however, finds it difficult to envisage a mechanism for break-up that would produce a crease in Target 71 alone and not in Target 40 immediately below it. It would have to be argued, he says, that Target 40 separated from the aircraft before Target 71 was creased, which is inconsistent with Dr. Trimble’s assertion that the two targets were separated as a pair. Such a mechanism would not explain the obvious venting damage to Target 71 between BS 2040 and 2060, nor the extreme damage to Target 282. Dr. Trimble responds that, since most of the skin along the top edge of Target 40 had curled outward due to venting, Target 71 may have remained attached to Target 40 by only a few frames, in addition to the possibly unvented area above the bulk cargo door. The fuselage skin within the aft area of Target 40 would therefore have escaped bending load transfer from Target 71 before it suffered its final detachment as the fuselage aft of this area swung left and downward.

[143] Dr. Trimble also strongly disagrees with certain aspects of Professor Peel’s opinion regarding Target 40.

[144] Firstly, he challenges Professor Peel’s characterization of the top aft edge of the aft cargo door as having been “slightly” displaced. Dr. Trimble states that underwater video images show that this heavily constructed main cargo door in Target 40 was displaced outwards by more than its substantial thickness, with probable overstressing of its aft hinge and mid-span latch. Such displacement is a clear indication of a major outboard force in the area of the top aft edge of the door, BS 1920.

[145] Secondly, such damage is not consistent with deformation of the door by the container in Baggage Area 44 Right. It would have been necessary for the container to have displaced laterally outboard to have exerted maximum loading on the aft upper corner of the door; a forward/outboard displacement would have loaded the door further forward. Moreover, the pattern of damage to the outboard side of the container (Target 24) was not consistent with the assertion that the outward displacement of the door was caused by impact from the container.

[146] Finally, there was an empty space between Baggage Area 52 Left and the bulk cargo door. Had the explosive device been in 52 Left at BS 2020, there would have been nothing to impede the forces impinging on the bulk cargo door and very thin surrounding skin. However, the area surrounding BS 2020 on the right shows no venting. This necessarily locates the device forward of BS 2020. Indeed, there was evidence of such venting damage further forward in the region of BS 1980 and further aft on Target 71 between BS 2040 and 2060.

[147] Professor Peel responds to this last point by pointing out that the upper aft portion of Target 40 above the bulk cargo door had been deliberately left in a neutral and undeformed condition in the reconstruction since it was obscured from view in the underwater images, leaving insufficient evidence from which to infer the nature of damage, if any. In any event, considering Targets 40 and 71 together, it can be seen that the area below the window belt on the right side shows blast damage both forwards and aft of BS 2020 on either side of the bulk cargo door. Similar damage would therefore likely have been seen at BS 2020 on Target 40 had this area not been obscured from view. Professor Peel adds that it would be illogical to expect a device at BS 1920 or 1960 to produce relatively modest damage at this location on Target 40, more severe damage on Target 71 between BS 2020 to 2060, and yet little in between these locations. Target 282 to the immediate aft of Target 71 also shows heavy deformation.

e. Target 653

[148] Target 653 is a small portion of the bulk cargo floor from the left side of Baggage Area 51 extending from BS 1920 to approximately BS 1960. The target retains a short section of one fuselage frame at its forward edge at BS 1920. Target 653 was positioned immediately above the hole formed by the aft left section of Target 8 flapping down and under, and the lower part of Target 11 on the right flapping upwards and out. Baggage would have been stacked on top of Target 653 since Baggage Area 51 was loaded.

[149] Both experts agree that there was high pressure in the area of Target 653 and that, because of this, the survival of the target is surprising. Professor Peel explains its survival by reference to luggage placement, while Dr. Trimble’s opinion is that it survived because the bomb exploded directly above it. Both experts assert that Target 653 could not have survived if the bomb was located where the other places it.

[150] Professor Peel states that Target 653 is the forward edge of the blast hole in the cargo floor. He points to the rough symmetry between the edges of Targets 653 and 40 and the hole in the fuselage belly skin below. The bomb pressures at BS 2020 would have reduced to the point that the deformation observed on Target 653 was consistent with it being located at the edge, not centre, of the blast hole.

[151] Professor Peel explains that the pile of baggage immediately above Target 653 would have protected the surviving frame given the angle of attack of an explosive at BS 2020, approximately 30 inches above the cargo compartment floor. This angle of attack also explains the survival of the portion of cargo floor in light of the destruction of the belly skin below. At his location, the surviving edge of the floor on Target 653 and the edge of hole in the belly skin are both just visible from the proposed bomb location.

[152] Dr. Trimble was critical of Professor Peel’s explanation, stating that he had failed to mention a number of significant characteristics of the target, such as its downward dishing deformation, its slight forward bowing and the remarkably intact nature of the floor support beam. His theory is that the damage sustained by Target 653 was consistent with an explosion two to three feet above the bulk cargo compartment floor slightly aft of the target at about BS 1960 to 1980. The overpressure thrust experienced on the forward and aft sides of the remaining frame at BS 1920 would have been the same, thus creating no pressure differential. As the area of flooring experienced a downward thrust, it would have deflected downwards almost immediately before beginning to rupture. The frame then rotated forward from its lower edge. The failure of the transverse chord removed the ability of the frame to react to loads and it therefore did not substantially deform. Following this sequence of damage, Target 653 was jettisoned from the belly of the aircraft through the hole on the left side of Target 8 where it flapped downward. It was the early separation of Target 653 from the surrounding structure and its ejection through the opening in the belly skin that enabled the frame to survive in relatively good condition.

[153] Had the explosion occurred in Baggage Area 52, there would not have been as much torsional influence on the transverse chord and Target 653 would not have jettisoned as quickly. It would have remained in place sufficiently long to have sustained the impact of the main pressure blast upon the belly skin. A blast at BS 2020 would have broken through the bulk cargo compartment floor, and the longitudinal component of that pressure would have struck the light frame on Target 653 head on, destroying it. A spherical blast would also have produced a diagonal downward vector towards the aft face of the frame. The presence of suitcases in Baggage Areas 51 and 52 (between the device and Target 653) would not have saved the frame from associated damage effects. If, as Professor Peel asserts, intervening suitcases did not protect the Target 1011 beams from face-on pressure, there is no reason why they should have saved the frame on Target 653.

[154] Professor Peel is critical of Dr. Trimble’s explanation for Target 653’s survival on the basis, in part, that the gentle forward deflection of the frame was not consistent with the close proximity of the frame to an explosive device that Dr. Trimble claims destroyed all of the frames forward of it. He also disputes Dr. Trimble’s theory that the target survived because the device was located near BS 1920 and thereby created pressure equilibrium on both sides of the surviving frame. “Side-on” pressures could not be created by an explosion at BS 1960 to 1980 since it would have been too far aft of BS 1920. For even distribution of pressure on the frame to be achieved, the bomb would have to have been located at or very close to BS 1920. However, this would be inconsistent with the evidence of crack directions in the fuselage skin and forward edge of the blast hole. The possibility of the relatively flimsy cargo floor surviving a blast immediately above it at BS 1920 is small; it would have been severely damaged, not left relatively intact. Moreover, this does not explain how the belly skin immediately below this section of cargo flooring remained intact.

[155] Professor Peel also finds “completely unacceptable” Dr. Trimble’s claim that the strong keel beam at BS 1480 was ruptured by an explosive blast while this frame, much closer to the bomb, was only slightly deformed. Finally, if the explosive device had been in the vicinity of BS 1970 as Dr. Trimble claims, it would have to have been located very close to the floor to enable the hole in the belly skin without disrupting the floor paneling on Target 653. Were this the case, however, it is difficult to explain the damage to the upper portions of the cargo container in Baggage Area 44 Right and cargo door on the right side of the aircraft.

f. Why the Explosive Device Could Not Have Been in Baggage Area 51 Left

[156] Professor Peel contends that the explosion could not have occurred in Baggage Area 51 Left for the following reasons:

1. the aft-most position of the forward running longitudinal crack is at approximately BS 1965. The bomb was necessarily aft of this location, which eliminates most of Baggage Area 51;

2. the bomb had to have been aft of the curved fractures on Target 8 and 11, again eliminating most of Baggage Area 51;

3. the crack along the aft edge of Target 8 runs outwards from the centre line of the aircraft towards the left. The fact that it was propagating toward the explosive site indicates that it was a secondary, rather than primary, crack. As a result, the upper portion of the hole that remains in Baggage Area 51 is denied as a bomb location;

4. even if the bomb had been located in the aft-most region possible in Baggage Area 51, the aft ends of Targets 8 and 11 as well as Target 653 would have been blasted away; and

5. because of the physical dimensions of a suitcase, a bomb could not have been closer than four inches to the boundary curtain that separates the two baggage areas. This leaves only a small region aft of Target 8 within Baggage Area 51 Left in which the device could have been located. However, the device would have had to have been very small to have created such a neat and precise hole, which, in turn, is inconsistent with the extent of the damage sustained by the aircraft.

E. The Evidence of Dr. Trimble

[157] While Professor Peel’s approach to structural analysis focused on a select number of bomb indicators, Dr. Trimble’s approach was broader. He documented the damage sustained by the Kanishka on a significantly more comprehensive basis and, from there, identified a break-up sequence and bomb location that, in his opinion, was consistent with all available evidence, including that which was seemingly inconsistent or anomalous.

[158] Dr. Trimble summarized the disintegration of the aircraft as follows:

the structural damage to the Kanishka was consistent with in-flight structural break-up as a result of the explosion of an improvised explosive device within the left side of Baggage Area 51, which initiated a primary longitudinal fracture of the belly skin from just aft of BS 1960, the forward extension of which rapidly reached the forward bulkhead at BS 1480;
the resultant shock waves and overpressure pulses induced tension failure of the left keel beam splice joint at BS 1480, as well as left-side biased rapid disintegration of the aft fuselage. The left aft fuselage suffered early deflection to the left;
as a result of the overpressure induced weakening of the fuselage and the rapid onset of left yaw, the forward fuselage suffered inertia-induced lateral deflection and bending failure to the right at an early stage of the in-flight break-up;
this right deflection resulted in compressive deformation to the right forward fuselage and forward cargo door;
Engine Number 3 detached from the right wing early in the break-up sequence;
two pairs of First Class seats were released from the forward fuselage at an early stage in the in-flight break-up sequence;
following the in-flight disintegration of the aft fuselage and separation of the forward fuselage, the wing and centre-section fuselage later impacted the ocean after the separation of many parts from the wing and remaining engines.

[159] Dr. Trimble locates the explosive device that precipitated this sequence in the region of BS 1960 to 1980 at a height of approximately 30 inches above the bulk cargo floor in Baggage Area 51 Left. This positioning of the device accords with the following evidence, much of which was discussed above:

1. the forward edge of the blast hole was at the aft left edge of Target 8. The substantial reinforced circumferential joint at BS 1960 had the effect of modifying the extent of the hole;

2. there is a forward-running longitudinal fracture up the left side of Targets 7 and 8 to the bulkhead at BS 1480;

3. there is a transverse fracture across the left side of the aft edge of Target 8 at approximately BS 1965;

4. the aft left of Target 8 flapped massively downward and up underneath the right side of the target. Also, the lower portion of Target 11 in the right aft fuselage flapped massively outward and upward;

5. as discussed above, the survival of Target 653 can be accounted for by an explosion at Dr. Trimble’s location;

6. the aft deflection of the transverse beams on Target 1011 indicate that the device was located forward of BS 1980;

7. Target 26 exhibits outboard deformation consistent with a thrust from the region between BS 1960 and 1980;

8. there is ample evidence of a major pulse going from the proposed bomb location to the aft outboard corner of the container in Baggage Area 44 Right (Target 24), as well as to the upper aft corner of the main cargo door in Target 40. Moreover, the window belt directly above the main cargo door had ruptured, splitting Targets 321 from 71 in the region of BS 1920;

9. there is overpressure venting of the skin between the main cargo door and the bulk cargo door in the right aft fuselage. The thickness of this skin is equivalent to that above the bulk cargo door, yet the latter exhibits no corresponding venting in the area of BS 2020;

10. there is overpressure venting at the top aft corner of Target 307 which caused it to flap downward while still attached to Target 320;

11. there is evidence that a blast front swept forward up the left side of the aircraft under the aft cargo compartment floor which tore away the left sides of all the transverse frames on Target 7 and caused the aft tension failure of the left keel beam splice joint; and

12. there is an arc of damage to the left fuselage marked by the outwards deformation of Targets 287, 658, 26 and 11.

[160] Dr. Trimble also notes damage to the keel beam splice joints and areas of the front fuselage.

[161] Dr. Trimble identifies the pronounced bending in Target 71 in the right aft fuselage as an area inconsistent with his proposed bomb location. He suggests that this might have been the area where the rear fuselage displaced to the left as a result of the rapid disintegration of the aft left side of the aircraft.

[162] Dr. Trimble’s opinions regarding many of these targets were incorporated into the discussion of Professor Peel’s bomb indicators above. Some of those that were not are discussed below.

1. Targets 24 and 30

[163] Target 24 comprises the outboard edge of the baggage container that occupied Baggage Area 44 Right in the aft cargo compartment of the Kanishka, immediately forward of Baggage Area 51. Target 30 is the base to this container.

[164] Dr. Trimble states that Target 24 provides some “very interesting indications with regard to the positioning of the device”. He provides a detailed analysis of the damage sustained by the target, including:

the aft wall was in generally good condition except for an area of localized inward deformation with dark coloration;
the upper length of the vertical post had deflected forward, while the vertical member of the base attachment bracket had been bent substantially aft; and
the outboard surface of Target 24 had sustained extensive damage. The horizontal buffer strip had separated outwards off its attachment rivets. There were also areas of inward and outward compression, as well as vertical tearing and inward curling on the inclined and vertical faces.

[165] Dr. Trimble concluded that these damage observations were consistent with a forward, upward surge of pressure passing between the outside of the container and the container door.

[166] With respect to Target 30, Dr. Trimble testified that there was a fracture in the outboard aft base of the container that corresponded with the attachment bracket on Target 24 referred to above. The fracture had contained an embedded fragment of blue fibrous material when first examined that was lost by the time QinetiQ received the target for examination. Target 30 also showed evidence of pitting and downward dishing in the aft. Dr. Trimble concluded that the fracture direction and character were consistent with having been formed as a combination of the downward force and downward aft deflection of the sill in that area.

[167] In Dr. Trimble’s opinion, the damage sustained by Targets 24 and 30, together with the fact that Baggage Area 51 had been filled with 100 suitcases, indicates that the explosive device was located close to this area. Indeed, the damage is consistent with an explosion in Baggage Area 51. He envisioned a downwards, forwards, outboard thrust from about 30-36 inches above the bulk cargo compartment floor into the aft outboard area of the container, displacing the horizontal doors. This could have caused the depression in the corner of the base, flexing the rear sill downward and causing the broad fracture in the corner. The entrapment of fabric in such a fracture was virtually impossible unless done at the moment the fracture was created. There was evidence of an outwards thrust from the aft area of the inclined face, with a residual thrust wanting to go outwards and forwards. The inward curling was characteristic of the passage of hard-object debris into the container, after being reflected off the aft cargo compartment door. The outward displacement of the aft top corner of the aft cargo door showed that it had received a major thrust, which was consistent with the anticipated effects of a device positioned in Baggage Area 51.

[168] It is the opinion of Professor Peel that Targets 24 and 30 do not bear upon the location of the bomb. He also indicates that there is no connection “whatsoever” between the piece of fabric that Dr. Trimble claims was embedded in Target 30 and the explosion. Professor Peel describes the damage sustained by the container as giving the impression of having been driven forwards and outwards, crushing into the cargo door (Target 40), and deforming and perforating its outer panel. He suggests that some of the inward deformation to Target 24 could have resulted from impact with the sea.

[169] Dr. Trimble takes issues with Professor Peel’s analysis of the damage to Target 24. The inward deformation, he says, is not consistent with impact with the sea, particularly since there are marks to the inside of the target indicating that it was compressed onto linear edges, such as the hard edges of a suitcase. Such marks could only have been generated when the container had baggage inside and could not have been occasion by sea impact. Similarly, had the container been driven into the cargo door as Professor Peel asserts, the pattern of damage would have been fundamentally different. For example, the buffer strip would have been deformed inwards; instead, it was displaced outboard. The upper aft region of the outboard side of Target 24 shows no evidence of the degree of damage that such forceful contact with the cargo door would have caused. Moreover, in order to have had any chance of inducing the outward loading the aft upper corner of the main cargo door, Target 24 would have had to displace laterally outboard to its right. Any significant forward displacement of the container, as suggested by Professor Peel, would have induced a reduced load upon the upper aft corner of the door.

2. Target 47

[170] Target 47 is a section of aft cargo compartment flooring that rests immediately above the Target 7 belly skin starting at BS 1740. Dr. Trimble described how the left side of all of the transverse frames had been torn away from BS 1740 forward to the bulkhead at BS 1480. The right sides of these frames remained intact. The shear ties attaching the frames to the belly skin had deflected aft, indicating that the frames had experienced a forward overpressure thrust predominantly on the left side under the cargo floor. Dr. Trimble also described how Target 2, the small section of cargo compartment floor immediately forward of Target 47, had sustained greater damage and how this was consistent with reflected shock impact off the BS 1480 bulkhead and a strong forward-moving overpressure surge. A small section of belly skin from the front right area of Target 7 had separated from the stringers, and dark streaking on the inner face at the rivet holes indicated that there had been a fire under the belly of the aircraft at a very early stage in the break-up sequence.

3. Front Fuselage

[171] While acknowledging that his opinions with regard to the keel beam splice joints and to areas of the front fuselage were more relevant to the break-up sequence of the Kanishka than to the location of the explosive device that precipitated it, Dr. Trimble offered a well considered and detailed opinion in that regard. Professor Peel, agreeing that these matters were not relevant to bomb location, did not address those issues in his testimony.

[172] Target 358 is a piece of fuselage from the right side of the aircraft just forward of the wing root, and includes a passenger door. Target 193 is the corresponding target on the left side of the front fuselage, and also contains a passenger door.

[173] Dr. Trimble identified an arc of massive inwards deformation in the lower portion of Target 358, and notes that the window belt is bent outwards to the right. There is also honeycomb composite material wedged in the fuselage forward fracture. He states that such damage observations are consistent with the nose of the aircraft having deflected laterally to the right at approximately BS 780 and overriding the right wing root area. It also suggests that the forward fuselage suffered another failure in lateral bending just forward of the door.

[174] While both Targets 358 and 193 exhibit clear overpressure damage, that on Target 193 is more severe, particularly above the door area where the skin has been forced off the stringers and sections of frame are missing. The outside of this target also shows a different damage pattern to that on Target 358. The fact that the crown skin in the forward half of Target 193 is still attached to its stringers indicates that the overpressure forces had reduced forward of the 2 Left door in this target.

4. Keel Beam Splice Joints

[175] The keel beam runs along the belly of the aircraft and is constructed of two parallel “T” section booms attached to the lower outside surface of the fuselage skin. The beam is the main structural attachment supporting the rear fuselage. Target 7 is a large section of the fuselage skin from the belly of the aircraft that includes the keel beams. The keel beam splice joints are located at BS 1480.

[176] According to Dr. Trimble, the left boom is missing its four bolts and two side plates, which together with the axial ovality of the holes, indicates that the left joint separated essentially due to an aft pull on the joint. The right joint still has its side plates and bolts, and is bent approximately 30 degrees to the left. Dr. Trimble characterizes as “striking” the fact that these two major joints so close together did not separate in the same manner; i.e., they would have been expected to fail in the same fashion had the cause of the failure been, for example, aft tension. He explains that the only consistent explanation for the differential damage is the deflection of the aft fuselage to the left. A large tension force was produced on the left side of the fuselage consistent with the anticipated effects of a left side explosion, resulting in the loading of the rear pressure bulkhead and the bulkhead at BS 1480. This introduced a very high tensile force consistent with the mode of failure of the left hand joint. The entire aft fuselage then swung very rapidly to the left by approximately 30 degrees. One reason for this could be that the aircraft was carrying a spare fifth pod engine on the left wing, which would have meant that there would have been more drag on the left side of the aircraft. As well, it is likely that as soon as there was an explosion in the left aft fuselage, the control cables to the tail surfaces would have been instantly disrupted, inducing an immediate response in the rudder. If that response was in the right rudder then the aft fuselage would have deflected immediately to the left, which would have had serious aerodynamic implications for the nose of the aircraft.

5. Evidence Inconsistent with an Explosion in Baggage Area 51

[177] Dr. Trimble contends that there are numerous important areas of damage and absence of damage inconsistent with an explosion in Baggage Area 51:

1. Target 653 – The vertical frame at BS 1920 could not have survived a blast from BS 2020 when all of the other left side frames forward of BS 1920 were torn away;

2. Targets 24 and 30 – The solid wall of 100 suitcases in Baggage Area 51 would have prevented a focused shock front originating at BS 2020 from penetrating the baggage container in Baggage Area 44 Right. This focused shock caused the downward dishing of and fracture in the base of the container (Target 30) and the outward and inward damage to the corrugated wall of the container (Target 24);

3. Target 40 – There should have been evidence of blast damage or overpressure venting above the bulk cargo door as it was located immediately opposite Baggage Area 52 with no intervening structure or baggage to protect it;

4. Targets 321 and 71 – The spherical bulge in the right aft fuselage should have been much further aft, centred at approximately BS 2020 rather than BS 1920 to 1960;

5. Target 1011 – Given its proximity to Professor Peel’s bomb location, the relatively fragile composite flooring and transverse beams that comprise this target should have been destroyed or severely damaged, particularly in light of the massive damage sustained by stronger pieces of structure further away from the blast; and Targets 28, 287, 658 and 26 – The spherical bulge so clearly evident across these four pieces of left side window belt fuselage should have been centered much further aft, such that the mid-point of the bulge, rather than its aft boundary, was centered at BS 2020.

F. The Reconstruction

[178] At the direction of Professor Peel, the targets in the reconstruction were positioned in their post-blast configuration, that is, the position the targets would have been in at the time the effects of the explosive blast ceased. This was a novel manner of reconstruction which, to the knowledge of the experts, had never been employed before. The traditional approach is to position the pieces of wreckage flush against the fuselage in a more neutral pre-blast fashion. The defence experts were critical of Professor Peel’s approach on the basis that it introduced a dangerous level of subjectivity into the analysis; once a target is moved off of the fuselage, subjective considerations inevitably go into the decision of how it should be positioned.

[179] As an example, the defence points to the bulge on the left side of the aft fuselage. The initial reconstruction in which the targets were mounted in the traditional manner showed the bulge spanning from the aft end of the Target 28 to the front corner of Target 26, which would have supported a blast centered forward of BS 2020. The post-blast positioning had the effect of enlarging the area covered by the bulge, thus supporting Professor Peel’s opinion that the explosion was centered at BS 2020.

G. Wreckage Trail Analysis

[180] Wreckage trail analysis is premised on the principle that the manner in which wreckage is distributed provides useful clues as to what befell the aircraft. As Mr. Taylor explained, when an aircraft breaks up at altitude, denser pieces tend to travel forward straight ahead and are relatively unaffected by cross-winds. Lighter pieces tend to stop in their tracks and are strongly affected by cross-winds. Consequently, wreckage will fall in a pattern resembling a field hockey stick with the densest pieces on the curve nearest the aircraft and the lighter ones progressively further downwind in a straight line. As the pieces separate, they form sequential lines at several second intervals parallel to the first line, called the “leading edge”. In this manner, wreckage trail analysis provides an indication of the order of break-up of the aircraft. Pieces along the leading edge are those that separated first and are, accordingly, the most likely to indicate the cause of the break-up.

[181] The Crown and defence experts place different levels of reliance on wreckage trail analysis in arriving at their respective conclusions. Professor Peel testified that the wreckage trail material in the present case indicated an in-flight disintegration in the aft left section of the fuselage, given the propensity of wreckage from that area of the aircraft. Beyond this level of generality, however, he did not consider wreckage trail analysis helpful, certainly not with respect to identifying the location of the bomb. Indeed, he went further and stated that the use of wreckage trail analysis to identify the order of detachment of specific targets or their proximity to the blast was unsound.

[182] In contrast, Mr. Taylor and Dr. Trimble testified that wreckage trail analysis was an essential component of in-flight accident investigation and that any information gleaned from such analysis was important and could not be ignored. Mr. Taylor acknowledged that wreckage trail analysis alone could not determine the precise location of the explosive device in the present case.

[183] Mr. Taylor’s wreckage trail analysis of Air India Flight 182 led him to identify a number of targets at or near the leading edge that separated early in the break-up process: Targets 2, 7, 8, 339, 26, 658, 656, 30 and 341. He also referred to a CAD diagram in his expert report in which the targets from the aft fuselage were color-coded in accordance with their estimated time of separation from the aircraft structure based on their position in the wreckage trail.

[184] One anomaly that Mr. Taylor noted was that Targets 656 and 307, though located adjacent to each other in the rear fuselage, had separated 10 seconds apart. In his opinion, Target 656 detached very early in the break-up sequence, just after the formation of the crease shared by both targets. The most likely explanation for Target 307’s late separation was that it folded downward onto the adjacent Target 320 and, as it detached, got caught up in the remains of the fuselage further aft. This was possible since there were pieces of rear fuselage from further aft and the rear pressure bulkhead far downtrack. Target 307 would have been carried on by the airstream had it detached outward, upward and aft as put forth by Professor Peel. Professor Peel’s suggestion that the target stayed attached to Target 74 to its aft, which separated after three seconds, is not supported by its position in the wreckage trail.

[185] According to the wreckage trail, Targets 7 and 8 separated very early, almost certainly while still joined. Target 2 was also likely still attached. In Mr. Taylor’s opinion, the most probable explanation was that they fell together and separated upon hitting the ocean surface. Target 653 separated early and, as a piece of bulk cargo compartment floor, needed a hole from which to do so. The early separation of Targets 7 and 8 provided an opening through which it could exit. Mr. Taylor found it interesting that Targets 28 and 321, two large pieces from the left and right sides of the rear fuselage, both separated within two seconds.

[186] Mr. Taylor testified that Targets 71 and 40 from the right aft fuselage had a good fracture match and separated after six seconds. It was his opinion that Target 71 had not been blown out at the beginning of the break-up, in contrast to Targets 26 and 658 from the left aft fuselage, both separating from the aircraft structure after only one second. The most likely explanation was that Target 71 had remained attached to Target 40 and may have remained attached during some or all of the descent to the ocean. He added that the lower area of Target 11 from the left fuselage showed a major flapping out which must have occurred as part of the initial event.

[187] It was Mr. Taylor’s conclusion that the general sequence of disintegration and the damage to various targets suggested that the explosion occurred just to the rear of Baggage Area 44 Left in the vicinity of BS 1940 to 1980. This would put it within Baggage Area 51 Left. He deferred, however, to Dr. Trimble’s opinion on this matter given his more detailed study of targets in this area.

H. Conclusion

[188] Given that only 5% of the Kanishka was ultimately recovered from the ocean’s depths, it is remarkable that the Crown and defence experts were able to narrow the location of the explosive device that brought the aircraft down to within approximately five feet. That this was possible is a testament to the tremendous and dedicated efforts of the many involved in the recovery, reconstruction, and analysis of the wreckage. It is but happenstance that these five feet, a marginal distance in the context of a Boeing 747 aircraft, carry such significance in the present case.

[189] All three experts are eminently qualified and respected within their fields of expertise. Each marshaled a compelling case for locating the explosive device as he did, leaving the Court with the challenging task of assessing these competing theories and the technical evidence upon which they are based.

[190] It is agreed amongst the experts that the Kanishka was destroyed by the detonation of an explosive device within its left aft fuselage. The sole issue is the precise location of that device. In this regard, I consider Professor Peel’s specialized expertise in physical metallurgy and, more specifically, the effects of internal detonations on the structure of aircraft, to be a highly relevant factor in according his opinion significant weight.

[191] Dr. Trimble has impressive aircraft accident investigation experience in terms of both number and breadth. Here, however, the cause of the crash and the general location of the explosive device that precipitated it are not disputed and, therefore, many of the broader considerations generally brought to bear in an accident investigation are not engaged. What is engaged, instead, in pinpointing the location of the explosion is a detailed understanding of the effects of internal detonations on the structure of aircraft, including the properties of metal, and the principles of pressurization and crack propagation. The relevance of these factors is underscored by the extent to which they ground many of the areas of disagreement between Professor Peel and Dr. Trimble. Some examples include the following:

Dr. Trimble cites the constraining effect of the reinforced skin joint at BS 1965 to explain the apparent anomaly of his bomb location being very close to the forward edge of the blast hole. However, when questioned how much stronger the joint was than the fuselage skin, he replied “I do not know. Appreciably stronger.” Professor Peel asserts that although three times stronger than the fuselage skin, the area of the joint would not have been able to withstand the intense pressures that he calculates it would have sustained from a bomb at Dr. Trimble’s location.
In concluding that the crack separating Targets 307 and 320 was likely secondary rather than primary, Dr. Trimble points to the presence of quilting on those two targets. The early passage of that crack would have dissipated the pressure and removed the conditions for quilting. He makes a similar assertion with respect to the creases on Target 26, stating that the passage of cracks through the fuselage in that area would have dissipated the pressure necessary for creasing. Such creasing, therefore, is not an indicator of an apex or proximity to the explosion.

I accept Professor Peel’s description of these assertions as fundamentally unsound. He states that the time required for the internal pressure to vent and reach equilibrium with the outside atmosphere is significantly greater than that required for deformation to occur and cracks to grow. He explained that his trial aircraft explosion results indicated that the passage of cracks occurred in well under one second while pressure was maintained for up to 20 seconds thereafter.

While Dr. Trimble attributes the damaged frame on Target 656 to a baggage strike, Professor Peel more logically contends this is highly unlikely since a bag travels at speeds considerably slower than a blast wave and would therefore have difficulty “catching up” with a deforming structure loaded by the blast.
In explaining the separation of Target 307, Dr. Trimble suggests that the crack running forward along the top edge of Target 307 was initiated by a separate hole blown at its aft end. Professor Peel more logically counters that as a basic principle of fracture mechanics, a crack formed at an explosively generated hole running solely in one direction is highly unlikely.
Dr. Trimble’s analysis of Target 1011 is premised on the concept of a progressive cascade failure, a concept Professor Peel asserts, and I accept, is fundamentally misleading and inappropriate in this case.

[192] The manner in which an aircraft’s structure will react to the stresses and pressures of an internal detonation is an area squarely within the experiential domain of Professor Peel, and I therefore prefer his opinion to that of Dr. Trimble to the extent they differ with respect to the application of these fundamental principles.

[193] Having approached his analysis from the perspective that patterns are an important initial starting point in determining bomb location, Professor Peel’s location of BS 2020 also has the advantage of being internally consistent in terms of the damage sustained by the various important targets. The consistency of the damage to Targets 26, 1011 and 656 is a cogent example in this regard.

[194] In contrast, Dr. Trimble’s evidence regarding the various targets is less consistent with respect to bomb location, leading in some instances to a location at BS 1960 to 1980, while in others, seemingly to one in the region of BS 1920 (Target 653, and Target 71 and 40). His evidence regarding these latter two targets also demonstrates that on occasion his opinion was influenced by apparent misapprehensions. Dr. Trimble asserts that the lack of damage to the fuselage skin above the bulk cargo door in Target 40 indicated that the device could not have been at BS 2020. Professor Peel points out, however, that that area had been left in a neutral condition in the reconstruction because it had been obscured from view in the underwater photographs. He further pointed out that underwater images of Targets 40 and 71 show blast damage both forwards and aft of BS 2020 on either side of the bulk cargo door and that, accordingly, the pattern of damage assumed by Dr. Trimble is inherently illogical.

[195] Significantly, Professor Peel’s evidence is also consistent with other evidence at trial leading to the strong inference that Air India Flight 182 was destroyed by a bomb contained in a suitcase loaded in Vancouver. As set out earlier, the M. Singh and L. Singh tickets were booked at the same time by one individual. Both tickets were for CP flights connecting to Air India flights, one headed east, the other west. Both tickets were picked up at the same time by one individual and were paid for with cash. The holders of the M. Singh and L. Singh tickets checked in at Vancouver Airport on June 22, 1985 and each checked in one bag, both to be interlined onto their connecting Air India flights. Neither individual boarded his flight. In neither case were claims made for a refund of the ticket or for a lost bag. Two bombs subsequently exploded within 54 minutes of each other, one aboard Air India Flight 182 which carried the M. Singh bag and the other at Narita during the unloading of the flight that had carried the L. Singh bag. Forensic evidence conclusively linked the Narita bomb to Mr. Reyat.

[196] 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.

[197] I am satisfied beyond a reasonable doubt that the M. Singh bag contained an explosive device which detonated in Baggage Area 52 of Air India Flight 182.

V. BACKGROUND EVIDENCE

A. The Golden Temple Attack and Khalistan Movement

[198] Evidence of the political and religious issues facing Sikhs in India and abroad during the early to mid-1980s was led through Dr. Paul Wallace, an expert in the historical and political development of Sikhism. He provided an historical overview of the development of the Sikh religion from its origins to the present day.

[199] The Golden Temple complex in Amritsar is the single most important representation of the Sikh faith in the world, comparing in significance to the Vatican for Catholics, the Kaba for Muslims and the Wailing Wall for Jews. Under heightened tension between Hindus and Sikhs in India, the Indian army launched an attack on the Golden Temple complex between June 2 - 4, 1984 (“Operation Bluestar”). The Indian army entered the Golden Temple complex and, facing resistance, brought in tanks which eventually destroyed a number of buildings and structures. While estimates vary widely, Dr. Wallace testified that approximately one thousand people died in the incident. Many important documents and historical records of the Sikh religion were also destroyed.

[200] Operation Bluestar dealt a devastating blow to relations between Sikhs and Hindus. Sikhs, both inside and outside India, reacted with shock and outrage. Dr. Wallace testified that moderates and extremists alike were of the opinion that the attack represented a sacrilege against their religion. He testified that the reaction of Sikhs living outside of India was at least as strong as within the country, a view that was echoed by many of the witnesses who testified during the trial.

[201] On October 31, 1984, Indian Prime Minister, Indira Gandhi, was assassinated by her Sikh bodyguards. This incident further agitated the relationship between Sikhs and Hindus and led to a violent campaign against Sikhs, which included thousands of deaths and the burning and destruction of a great deal of Sikh property.

[202] Dr. Wallace testified that the Golden Temple attack and the assassination of Indira Gandhi were the two precipitating events that, in his opinion, led to the political movement for the formation of an independent Sikh homeland to be called Khalistan.

B. The Formation of the Babbar Khalsa Sikh Society of Canada

[203] The Babbar Khalsa Sikh Society of Canada (the “Babbar Khalsa”) was incorporated in British Columbia under the Society Act on November 1, 1984. The original applicants for incorporation included Talwinder Singh Parmar (“Mr. Parmar”), “Mr. Bagri”, Surjan Singh Gill (“Surjan Gill”), Avtar Singh Narwal (“Mr. Narwal”), Gurmit Singh Gill(“Gurmit Gill”)and Satnam Singh Khun Khun(“Mr. Khun Khun”). The Certificate of Incorporation stated, inter alia, that the purpose of the Society was to promote and maintain the character of Sikhism and to struggle for the establishment of a Sikh homeland.

C. Talwinder Singh Parmar

[204] Mr. Parmar, an un-indicted co-conspirator in this case, immigrated to Canada with his family on May 31, 1970. He was considered a priest in the practice of the Sikh religion and was Chairman of the Babbar Khalsa. Mr. Parmar was killed in India on October 14, 1992.

D. Inderjit Singh Reyat

[205] Inderjit Singh Reyat (“Mr. Reyat”) is a baptized Sikh born in India in 1952. He immigrated to Canada in the mid-1970s, initially settling in Vancouver where he was employed by Auto Marine Electric (“AME”) as an automotive electrician. He was subsequently transferred to various AME branches in the Lower Mainland until he finally settled in Duncan on Vancouver Island in 1979. Mr. Reyat was active in the Sikh temple in Duncan and often attended at various Vancouver area temples, playing drums at religious ceremonies.

[206] On May 10, 1991, Mr. Reyat was convicted after trial in the British Columbia Supreme Court of two counts of manslaughter with respect to the deaths of the two Japanese baggage handlers as a result of the explosion at Narita Airport on June 23, 1985. He was also convicted of five charges relating to the acquisition, possession and use of explosive substances contrary to the Criminal Code. The Court found that the Sanyo tuner that had housed the Narita bomb could be traced directly to Mr. Reyat, and that other bomb components were consistent with items he had acquired. It concluded that he had fabricated or, at a minimum, aided others in the fabrication of the Narita bomb. Mr. Reyat’s convictions were upheld by the British Columbia Court of Appeal in 1993.

[207] In this trial, the bulk of the evidence making up the case against Mr. Reyat in relation to the Narita explosion was proffered by way of admission of fact. Mr. Bagri and Mr. Malik did not challenge the admissibility of any of this evidence, relieving the Court of the necessity of hearing many months of complex and technical forensic evidence.

[208] Mr. Reyat was added to the Indictment in the present proceedings in June, 2001. On February 10, 2003, Mr. Reyat pleaded guilty to a new indictment charging him with manslaughter in aiding and abetting in the construction of an explosive device placed onboard Air India Flight 182, which exploded and killed all 329 passengers and crew. The Agreed Statement of Facts read into the record at the time of his plea was as follows:

In May and June, 1985, in the Province of British Columbia, Mr. Reyat acquired various materials for the purpose of aiding others in the making of the explosive devices. Mr. Reyat was told and believed that the explosive devices would be transported to India in order to blow up property such as a car, a bridge or something “heavy”. Although Mr. Reyat acquired materials for this purpose, he did not make or arm an explosive device, nor did he place an explosive device on an airplane, nor does he know who did or did not do so.

At no time did Mr. Reyat intend by his actions to cause death to any person or believe that such consequences were likely to occur. However, unbeknownst to Mr. Reyat the items that he acquired were used by another person or persons to help make an explosive device that, on or about June 23, 1985, destroyed Air India Flight 182, killing all 329 people on board.

[209] The Crown called Mr. Reyat as a witness at trial. The gist of his evidence was that Mr. Parmar had approached him sometime in 1984 to make an explosive device that would be used in India to assist the Sikh people. Mr. Parmar, he said, did not elaborate as to who would be using the device or how it would be used. Upset with the Government of India for its mistreatment of Sikhs, Mr. Reyat agreed to assist.

1. Mr. Reyat’s Quest for Explosives and the June 4 Test Blast

[210] A number of witnesses testified with respect to Mr. Reyat’s interest in acquiring dynamite in 1984 and 1985 for the ostensible purpose of blasting tree stumps on his property. Mr. Reyat had also expressed an interest in explosives to an AME co-worker, on one occasion expressing such interest in the context of angry remarks about the Indian Government and Indira Gandhi in particular.

[211] On May 8, 1985, Mr. Reyat purchased a 12 volt Micronta auto clock with a 24 hour alarm from the Radio Shack store in Duncan, British Columbia (the “Duncan Radio Shack”). He returned to the store one week later to seek assistance with respect to connecting the clock to a relay. There were nine long-distance telephone calls between Mr. Parmar’s residence and Mr. Reyat’s residence or workplace that month.

[212] On June 4, 1985, Canadian Security Intelligence Service (“CSIS”) surveillance agents observed Mr. Parmar and an unknown East Indian male (“Mr. X”) travel from Mr. Parmar’s residence in Burnaby to Mr. Reyat’s residence in Duncan. At 6:30 p.m., the three men departed Mr. Reyat’s residence and drove to AME in Duncan. They entered the building at 6:34 p.m. and exited at 6:59 p.m., after which they were followed at a high speed to a nearby wooded area.

[213] All three men were observed standing outside the vehicle speaking before Mr. X got back into the car. Mr. Parmar and Mr. Reyat went into the woods. Seconds later, CSIS agents heard a very loud bang which was believed to be a rifle “report”. Mr. Reyat and Mr. Parmar then returned to the vehicle, which traveled to Mr. Reyat’s house. At 8:10 p.m., Mr. Reyat’s vehicle traveled from his residence to the Departure Bay Ferry Terminal.

[214] Later that evening, CSIS agents on the Mainland observed a male they believed to be Surjan Gill pick up Mr. Parmar at the Horseshoe Bay Ferry Terminal and drive to Mr. Parmar’s residence. Surjan Gill and Mr. Parmar were then observed in the darkened garage of that residence for six to seven minutes, apparently engaged in a conversation.

2. Mr. Reyat’s Evidence Regarding Mr. X and the June 4 Test Blast

[215] Mr. Reyat’s evidence regarding his role in the development of an explosive device, the June 4 test blast, his contact with Mr. Parmar and the identity of Mr. X was intentionally vague and evasive, often bordering on the absurd. He testified, in effect, that the real purpose of Mr. Parmar’s trip to Duncan had been to learn about propane conversion for his vehicle. He minimized the nature of the explosive device that was tested on June 4 and testified that Mr. Parmar had told him that the device he had created was useless. He further testified that his role then became that of an assistant to Mr. X who was going to gather materials in Duncan to make the device.

[216] Mr. Reyat was questioned extensively about the identity of Mr. X but professed to know little about him even though Mr. X had resided with him in his home for nearly a week. He described Mr. X as a Sikh from Toronto in his early 20s who was possibly a teacher. He wore a turban and had a short beard. Although Mr. Reyat said that he wrote down Mr. X’s telephone number, he maintained throughout that he did not know his name. Mr. X has never been identified by police.

3. Mr. Reyat’s Procurement of Bomb Components

[217] The evidence reveals that Mr. Reyat acquired a number of items linked to the Narita bomb in the period immediately following the June 4 test blast:

Sanyo FMT 611K Tuner –- Mr. Reyat acknowledged that on June 5, 1985 he attended at the Woolworth Department Store in Duncan (the “Duncan Woolworth”) with Mr. X and was present when a Sanyo FMT 611K tuner was purchased. During a November 6, 1985 search of Mr. Reyat’s residence, the RCMP seized an invoice from the Duncan Woolworth for the purchase of a Sanyo FMT 611K tuner on June 5, 1985. The invoice was in the name “I. Reyat” and included Mr. Reyat’s home telephone number. The investigators searched for but did not find a corresponding tuner in the residence.
Micronta Clock and Relays -– In addition to the one purchased on May 8, 1985 as earlier noted, Mr. Reyat purchased a second Micronta clock from the Duncan Radio Shack on June 4, 1985. The RCMP did not locate a Micronta clock during the November 6 search of his residence and workplace, nor did they observe one in Mr. Reyat’s vehicle on November 14, 1985.
Relays –- Mr. Reyat purchased two 12 volt relays from the Duncan Radio Shack on June 4, 1985. He exchanged one of the 12 volt relays for a 6 volt relay the following day, June 5. He purchased another 6 volt relay from the Radio Shack on June 19, 1985. The RCMP found no relays during their November 6 search. The relay fragments from Narita are forensically consistent with the 6 volt relays carried by Radio Shack.
Gunpowder -– On June 5, 1985, Mr. Reyat, in the company of another East Indian male, purchased a one pound (454 gram) tin of Dupont IMR 3031 smokeless gunpowder from Bucky’s Sports Shop in Duncan. Mr. Reyat acknowledged that it was “possible” that this individual was Mr. X. The RCMP found a one pound tin of Dupont IMR 3031 smokeless gunpowder in Mr. Reyat’s residence. Only 37 grams of powder remained in the tin. Residue on some fragments in the Narita explosion is consistent with this gunpowder, though it would also have been consistent with other sources of indistinguishable single base smokeless powder.
12 Volt Battery -– On June 22, 1985, the day of the two ill-fated flights, Mr. Reyat, in the company of an East Indian male (whom he testified was not Mr. X) attended at the AME store in Burnaby, British Columbia between 10:00 a.m. and 11:30 a.m. He requested a 12 volt battery with terminals which would fit into the holes of a metal bracket he had brought with him. Mr. Reyat purchased two Eveready 12 volt lantern batteries that fit that requirement, an unusual model of battery.

[218] In addition to invoices documenting most of the foregoing purchases, the RCMP also seized the following during its November 6 search of Mr. Reyat’s residence and workplace:

A Sanyo VCR carton -- There was an unusual green tape on this carton that was forensically consistent with the green tape found on the Narita blast debris.
Liquid Fire – The RCMP found a can of Liquid Fire brand starting fluid on a workbench at AME forensically consistent with fragments found at the Narita explosion. AME also sold this product commercially.
Blasting caps and dynamite – Mr. Ken Slade testified that he had provided Mr. Reyat with a number of electric blasting caps and a quantity of dynamite sometime in 1985. The RCMP found approximately 530 grams of dynamite removed from its tube casing in a plastic bag in the Reyat residence. This dynamite, however, was not of the same formulation as that seized from Mr. Slade the same day. Neither type of dynamite is chemically consistent with the residue on the Narita debris fragments.

[219] With the exception of a Micronta clock, one or more relays and the Sanyo FMT 611K tuner, Mr. Reyat maintained that he acquired these items for completely benign purposes.

4. The Scientific Evidence Concerning the Narita Explosion

[220] Following the explosion of the Narita bomb, Japanese police investigators immediately cordoned off the blast site and began the process of recovering, cataloguing and identifying over 3,200 small pieces of debris. Japanese and Canadian forensic experts painstakingly analyzed many of these pieces in the months and years following the explosion. They determined that the Narita bomb had been housed in a Sanyo FMT 611K stereo tuner still packed in its original box with Styrofoam packing blocks and tuner manual. Investigators were able to narrow the possible sources of this tuner to one of five Sanyo FMT 611K tuners shipped to the Duncan Woolworths in September, 1981.

[221] They identified other components of the Narita bomb as including a Micronta auto clock, a can of Liquid Fire starting fluid, an Eveready 12 volt lantern battery, a 6 volt electrical relay, gunpowder, blasting caps, and dynamite. Green tape, clear plastic tape and masking tape were found on a number of the fragments collected from the blast site. As was noted above, many of these items were forensically consistent with items seized from Mr. Reyat’s home and workplace.

5. Mr. Reyat’s Actions on June 21 and June 22, 1985

[222] Mr. Reyat testified that he worked on June 21, 1985 and also acknowledged that he had placed a phone call to Hardial Johal at 7:17 p.m. that evening.

[223] Mr. Reyat testified that he traveled to Vancouver on the 7:00 a.m. ferry on June 22, 1985, stating his purpose to be work on his brother’s truck. He could not explain why long distance tolls indicated that there had been a phone call to his residence in Duncan from Hardial Johal’s telephone number at 10:50 a.m. and a call from his residence to Hardial Johal’s at 4:00 p.m. that same day.

6. Conclusions Regarding Mr. Reyat

[224] Mr. Reyat’s involvement with the procurement of parts and the development of bombs used in the conspiracy to blow up Air India planes is not at issue in these proceedings. He has been convicted of offences in relation to both bombings.

[225] Mr. Reyat’s credibility on the witness stand is also of little moment in relation to the outcome of this trial. That said, 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.

[226] Much of his 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.

[227] 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 must have been a bitter pill for the families of the victims. If he harboured even the slightest degree of genuine remorse, he would have been more forthcoming.

VI. THE EVIDENCE AGAINST MR. MALIK

A. Overview

[228] It is the theory of the Crown that Mr. Malik’s role in the Air India/Narita explosions was in organizing and financing the operation. While the core of its case against him rests on evidence of a confession he made to a former employee, the Crown submits that his guilt has also been established through evidence of his attempts to recruit individuals to deliver the bombs to the Vancouver Airport and his post-offence conduct, comprising an attempt to obstruct the Air India investigation and the provision of financial assistance to Mr. Reyat’s family in the 1990s.

B. Background Information

[229] Mr. Malik, a successful local businessman, was a founding member of the Khalsa Credit Union and the Khalsa School. Mr. Malik was also the president of the Satnam Education Society and the Satnam Trust between 1992 and 1997.

C. The Evidence of Jagdev Singh Dhillon

[230] Jagdev Singh Dhillon was a friend and sometime business partner of Mr. Malik. Mr. Dhillon and Mr. Malik regularly attended religious gatherings on weekends in the early 1980s, some of which were held at Mr. Malik’s home in Vancouver.

[231] Mr. Dhillon testified about one such occasion. He had been sitting with a group of people in Mr. Malik’s kitchen when Mr. Malik entered from an adjoining room where he had been meeting with others and said something to the effect, “They say to crash the planes”. Mr. Dhillon did not recall the precise words spoken by Mr. Malik but recalled that he had used the word “they” and that he had been left with the impression that Mr. Malik had not been involved in the discussion that had been taking place. Mr. Dhillon also could not recall the date of this incident, though he believed it to have been sometime after the raid on the Golden Temple or the assassination of Indira Gandhi and prior to the Air India/Narita explosions.

D. The Evidence of Mr. A

[232] Mr. A is a baptized Sikh who came to Canada in 1962. He testified that he began to support the concept of an independent Khalistan following the attack on the Golden Temple but did not condone the use of violence to meet that objective. He attended demonstrations at the Indian Consulate and those of the International Sikh Youth Federation (“ISYF”).

[233] Mr. A testified that he also attended meetings at the homes of Mr. Parmar and others. During three such meetings that he recalled, Mr. Parmar spoke of killing Indira Gandhi and taking revenge against the Government of India. Mr. Parmar sought donations from those in attendance and Mr. A acknowledged contributing $300.00 at the last of these meetings, this being the only occasion that he had spoken to Mr. Parmar.

[234] Mr. A testified that he had been to Mr. Malik’s home on one occasion approximately 20 to 25 years ago to hear a religious singer, but did not speak with him. Mr. Malik was not in attendance at any of the meetings he attended after the Golden Temple attack.

[235] Mr. A testified that his first direct contact with Mr. Malik was outside the Ross Street Temple in Vancouver. Mr. A did not recall the month, but testified that it had been between the attack on the Golden Temple and the assassination of Indira Gandhi in 1984. This was the first occasion on which Mr. A had ever spoken with Mr. Malik aside from simple greetings when purchasing religious items from Mr. Malik’s stall at the Temple.

[236] Mr. A drove to the Ross Street Temple by himself that Sunday morning. Hundreds of people were coming and going when he arrived at approximately 10:00 a.m. Mr. A was immediately called over by Mr. Malik who was standing at a stall located outside the main entrance of the Temple.

[237] Mr. Malik took him over to a fence by the side of the Temple and, becoming serious, stated:

…the Government of India attacked Harimander Sahib [the Golden Temple]. We are to take revenge of that. … You are to drop the attaché case at the airport. … There is a time bomb in that. When the plane will go, the plane will be destroyed with that. … You are not to go with that, you are just to load there at the airport.

[238] Mr. A testified that he had responded by saying, “Innocent people are to be killed, what is their fault? If you are going to take revenge then kill Indira Gandhi”. Mr. Malik replied that “Parmar had asked him to get this work done”. Mr. A ended the discussion by saying that he could not do the job and then departed.

[239] Mr. A recalled that he last spoke to Mr. Malik approximately five or six years ago at the Ross Street Temple regarding the possibility of a job at the Khalsa School for his son. He also testified that he called Mr. Malik in 1998 regarding his mortgage with the Khalsa Credit Union. Mr. A had a high mortgage and was having difficulty paying his back taxes. Mr. A called Mr. Malik to discuss the possibility of Mr. Malik purchasing his house, but he was not interested. Mr. A testified that he harboured no animosity towards Mr. Malik, but acknowledged in cross-examination that he had referred to him as a “crook” during his police interview.

[240] Mr. A first spoke to the RCMP in December, 2003. He testified that he had never mentioned his encounter with Mr. Malik to anyone prior to that interview, not even to his wife when she told him that a witness in these proceedings had testified that Mr. Malik had asked him to carry a bomb onto a plane. Mr. A’s only explanation for his silence was that he spoke “very little”. Mr. A acknowledged having seen and heard media reports about this trial between October and December, 2003. His explanation for going to the police in December, 2003 was that “other people were telling” and innocent people had been killed through no fault of their own. Mr. A denied being aware of the one million dollar reward being offered by the RCMP in relation to this case.

[241] The cross-examination of Mr. A focused on his evidence regarding the location of the alleged encounter with Mr. Malik. Mr. A indicated that Mr. Malik’s stall had been located on the north side of the building to the west of the Temple’s front doors. He appeared unaware of renovations to the Temple in 1986, and, when shown a 1987 photograph of the front of the Temple, testified that it looked the same as it had in 1984. He also marked the location of the stall on a recent photograph.

[242] Mr. A was additionally cross-examined about his financial circumstances. After denying that he had experienced any financial difficulties the previous year, he was confronted with bankruptcy documents indicating that he had declared bankruptcy in July, 2003. He had claimed on these documents that he did not own a home, which contradicted his evidence that he owned a home valued between $350,000 and $450,000. Mr. A was also confronted with a number of other inconsistencies regarding his testimony with respect to his financial situation and the information he had provided to the Trustee in Bankruptcy.

[243] Finally, Mr. A was cross-examined about his involvement with the Akali Singh Sikh Temple and the Akali Singh Sikh Society, the society which ran that temple. He denied ever being a director of the society despite considerable documentary evidence suggesting otherwise. Mr. A was confronted with evidence that money had gone missing from the Akali Singh Sikh Temple in 1965 (one of the years he had been a director and had approved the balance sheet) and that he had been named in a lawsuit over the missing money. He denied any responsibility in relation to that incident.

E. Defence Evidence Regarding Mr. A’s Allegations

1. Renovations to the Ross Street Temple

[244] David Jackson (“Mr. Jackson”), the Co-Director of Licenses and Inspections for the City of Vancouver, testified that the 1969 plans for the Ross Street Temple show that it was originally sunken and completely surrounded by a 12 foot moat-like berm, with the exception of pedestrian bridges extending from the Temple on three sides, including the north side. That bridge spanned 29 feet across the ravine to level ground, where a concrete plaza connected it to the parking lot.

[245] Mr. Jackson testified that the Temple was inset from the edge of the ravine by six feet, making it 35 feet from the door of the building to the end of the bridge. It was 12 feet from the bridge to the bottom of the ravine, which was level with the basement floor of the Temple. The concrete plaza at the end of the bridge was 36 feet by 36 feet. The southern-most boundary of the plaza was 35 feet from the front of the Temple. There were stairs from the south end of the plaza leading down to the basement level.

[246] Mr. Jackson confirmed that there had been no renovations to the north side of the building prior to 1986, when washrooms were added to the basement. This renovation added 1,570 square feet to the north side of the Temple. The roof of the newly-constructed bathrooms was level with the bridge, creating a flat concrete concourse the entire width of the north side and eliminating the 12 foot ravine.

[247] Mr. Jackson’s evidence, and the documentary exhibits entered at trial, are consistent with the evidence of a number of witnesses, all of whom described the Ross Street Temple as being surrounded by this ravine in 1984.

2. The Location of Mr. Malik’s Stall

[248] The following witnesses all testified that Mr. Malik’s stall had been located in the basement of the Ross Street Temple prior to the 1986 renovations:

(i) Daljit Singh Sandhu (“Daljit Sandhu”);

(ii) Amarjit Johal;

(iii) Satwant Singh Sandhu (“Satwant Sandhu”); and

(iv) Sukhdev Sangha.

F. The Evidence of Mr. B

[249] The Crown’s theory is that in early 1985, Mr. Malik asked this witness to carry a suitcase on a flight to India for the purpose of teaching the Government of India a lesson.

[250] Mr. B, a baptized Sikh, came to Canada from India in December, 1969. He first met Mr. Malik in the mid-1970s, was one of the founding members of the Khalsa Credit Union and later became a trustee of the Khalsa School.

[251] Mr. B testified that he had a conversation with Mr. Malik in early 1985 when he approached him for a $40,000 loan to avoid foreclosure on his home. Mr. Malik responded that he would assist him if he did a job for him by taking a suitcase to India to teach the Government of India a lesson. When Mr. B replied that he feared being jailed in India since he was a baptized Sikh, Mr. Malik responded that Mr. B could stay in England and that his men would pick up the suitcase from there. Mr. Malik indicated that he would take care of the travel arrangements. He also told Mr. B that he would be considered a martyr if anything happened to him and that the panth would look after his children.

[252] Mr. B did not ask Mr. Malik what would be in the suitcase he was to carry. The conversation ended with Mr. B telling Mr. Malik that he would think about it and get back to him. Mr. B testified that he eventually received financial assistance from his family and informed Mr. Malik towards the end of March, 1985 that he no longer required his assistance. Mr. Malik responded by telling him not to mention their earlier conversation to anyone, a comment he repeated two weeks later at the Ross Street Temple.

[253] Mr. B learned of the Air India explosion on June 23, 1985. He testified that he received a threatening telephone call that evening from an unknown male who referred to him as “[ ]” and stated, “the work was done. Don’t open your mouth”. He further testified that Mr. Malik had also called him later that evening and told him, “the mishappening with Air India had taken place. If anyone asks you about it or questions you, let him [Malik] know”.

[254] Mr. B testified that he next saw Mr. Malik two to three weeks later, at which time Mr. Malik again reminded him not to say anything about their conversation. Mr. Malik then came to Mr. B’s farm with his children approximately one month after the Air India explosion. Mr. B testified that he told Mr. Malik that the police wished to speak to him, to which Mr. Malik responded, “It’s God willing. Whatever God does is right and you stay in touch with me”.

[255] The cross-examination of Mr. B focused on his deteriorating relationship with Mr. Malik in the twelve years between the alleged conversations and his first report to the police on April 7, 1997.

[256] Mr. B acknowledged that he and Mr. Malik first became financially intertwined in 1988 when Mr. B purchased a farm that he had previously been leasing. This purchase appears to have been the seed of an acrimonious and litigious dispute between Mr. B and Mr. Malik which remains ongoing today. As will be reviewed below, this dispute culminated on April 7, 1997, when Mr. B threatened to assault and publicly embarrass Mr. Malik, following which he proceeded to contact the police and report his 1985 conversations with Mr. Malik for the first time.

[257] Regarding the initial purchase of the farm, Mr. B testified as follows:

· in 1988 the provincial government had wanted to sell the farm he had been leasing;

· lacking sufficient funds to purchase the farm, he initially sought assistance from Mr. Malik;

· he had $50,000 to $60,000 in savings and loans to put toward the purchase price of $351,000;

· Mr. Malik arranged four loans at the Khalsa Credit Union for his immediate family members in the amount of $15,000 each, for a total of $60,000. Mr. Malik signed as a guarantor for those loans;

· as Mr. B was not eligible, Mr. Malik took out a mortgage in the amount of $251,000 in his own name from the Bank of Nova Scotia; and

· upon the purchase of the farm, Mr. B transferred title to Mr. Malik and then entered into a trust agreement providing Mr. B with beneficial ownership and Mr. Malik legal title.

[258] Mr. B testified that he was responsible for the mortgage payments to the Bank of Nova Scotia and the payments to the Khalsa Credit Union on the four loans to his family members. He further testified that, before he travelled to India in 1990, Mr. Malik had him sign a voucher in the amount of $75,000, with interest at prime plus 2.6%, to secure the four Khalsa Credit Union loans he had guaranteed, purportedly in the event that something happened to him while he was away. Mr. B testified that he never received $75,000 or any part thereof from Mr. Malik.

[259] Mr. B’s evidence with respect to the events that followed is that:

· he was able to arrange a mortgage with the Farm Credit Corporation later that year;

· he then asked Mr. Malik to transfer title to the farm to him;

· Mr. Malik indicated that he would agree only if Mr. B granted him a mortgage in the amount of $75,000 to secure the voucher he had earlier signed;

· he believed this demand to have been unfair;

· nonetheless, Mr. Malik “tricked” him into granting the mortgage; and

· he was cheated again when Mr. Malik unilaterally altered the voucher interest rate of prime plus 2.6% to a mortgage interest rate of 26.8% after the mortgage document had been signed by Mr. B.

[260] The new mortgage was executed on December 18, 1990 and legal title was transferred from Mr. Malik back