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disclose the identities of those witnesses not be published in any document or broadcast in any way.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 1st day of June, 1984 and the 24th 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 23rd 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 18th day of June, 1985 and the 24th 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 22nd 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 1st day of June, 1984 and the 24th 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 22nd 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 22nd 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 22nd 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:

  1. a hole in the belly skin and cargo compartment floor of the aft fuselage;
  2. a longitudinal crack running along the left side of the fuselage forward of the aft end of Target 8;
  3. a longitudinal crack running aft along Target 320;
  4. a zone of damage on the left side of the aircraft encompassing Targets 1011, 656 and 26;
  5. radial cracking on Target 26; and
  6. 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:

[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:

[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

[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:

[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

[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: 

  1. 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;
  2. 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;
  3. 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;
  4. this right deflection resulted in compressive deformation to the right forward fuselage and forward cargo door;
  5. Engine Number 3 detached from the right wing early in the break-up sequence;
  6. two pairs of First Class seats were released from the forward fuselage at an early stage in the in-flight break-up sequence;
  7. 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:

[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:

  1. 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. 
  2. 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. 

  1. 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. 
  2. 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.
  3. 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:

[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:

[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 to Mr. B and his wife on December 19, 1990.  Following legal action by Mr. Malik for failure to make payments under that mortgage, Mr. B's farm was subject to a court-ordered sale pursuant to an Order dated November 24, 1993.  Mr. B felt obliged to retain counsel despite having little in the way of financial resources.

[261]        During the same time period, Mr. B commenced legal proceedings against Mr. Malik related to the mortgage.  He testified that Mr. Malik then falsely claimed a conflict with Mr. B’s lawyer, forcing the latter to withdraw from the case.  Mr. B was obliged to retain another lawyer, who then withdrew after six months as Mr. B was unable to pay his fees.  He testified that he later came to believe that this lawyer also used to work for Mr. Malik.  He sought out other lawyers but suspected that Mr. Malik called each of them and indicated that Mr. B would not be able to pay their fees.

[262]        At the time of the court-ordered sale, Mr. B testified that he had leased and owned the farm for approximately 13 years, with him and his family working extremely hard operating the business.  The farm sold for $1,006,000, with the claims against it totalling approximately $1,003,000.  He testified that Mr. Malik fraudulently claimed approximately $284,000 of the sale proceeds flowing from the mortgage that Mr. Malik had tricked him into signing.

[263]        A hearing was held on December 7, 1994 for directions regarding the disbursement of the funds held in trust with respect to the proceeds from the sale of the farm.  The only claim Mr. B disputed was that of Mr. Malik.  He was persuaded to withdraw his objection when Mr. Malik told him that, if he did so, he would return his money minus his legal fees.  Mr. B signed a document entitled “Acknowledgment and Release” which indicated that he would be paid back the money he was owed in two instalments of $11,200 and $161,000.  Mr. B testified that he signed the release in draft form and that Mr. Malik paid him the first instalment of $11,200, stating that he would pay the second instalment of $161,000 in India.  Mr. Malik indicated that the release would be finalized when Mr. B received the balance of his money.  Mr. B claimed that Mr. Malik did not pay him the $161,000 and, instead, altered the draft release by deleting the word "draft" on the document to make it appear to be the final agreement in order to cheat Mr. B out of that sum.

[264]        Mr. B testified that he returned to Canada from India in June, 1995 to find that Mr. Malik was reneging on the agreement to pay him $161,000.  He testified that he then hired a lawyer to sue Mr. Malik, but eventually had to discharge him for lack of funds for legal fees.

[265]        Mr. B’s family continued to receive demand letters from the Khalsa Credit Union between 1995 and 1997 for repayment of the unpaid balance of $20,000 to $22,000 owing on the four $15,000 loans.  Mr. B testified that by 1995, he was virtually destitute and without his farm or home. 

[266]        Mr. B acknowledged that in 1985 he had read about the one million dollar reward being offered by the RCMP for information leading to the prosecution of the individuals responsible for the Air India bombing.

[267]        Mr. B testified that he phoned Mr. Malik on April 7, 1997, and asked why he was receiving demand letters from the Khalsa Credit Union when he had paid Mr. Malik $284,000 to settle the $60,000 debt.  Mr. Malik’s response was that it was his (Mr. B’s) problem.  Mr. B then told Mr. Malik that he was going to beat him up and publicly insult him.  Later that same day, Mr. B called the police and disclosed for the first time his allegations concerning the conversation he had had with Mr. Malik in 1985.

[268]        Despite these events, Mr. B claimed that it was his conscience that had motivated him to come forward.  He testified that he had asked Surjit Singh Gill, “If somebody has a secret –- has his secret with them, should they disclose it or not?” without disclosing what the secret was.  He testified that Surjit Singh Gill “advised me that one must disclose it”.

[269]        Mr. B acknowledged that he had not mentioned having received threatening telephone calls on the night of the Air India explosion in a number of statements and interviews to the police and the Crown in 1997 and 1999.  He was somewhat unclear when questioned about this further delay in reporting this information, first stating that he was “a bit scared” and also that his memory may have been a problem. 

[270]        Mr. B testified in direct that he had not told anyone but the RCMP about his conversation with Mr. Malik regarding suitcases.  Throughout his testimony, he repeatedly denied having told Narinder Singh Gill (“Narinder Gill”) about the conversation, though he did at one point concede that it was possible he had. 

[271]        Mr. B also testified about a meeting he attended with Ms. D at a lawyer’s office in 1998, and denied having told her about his conversation with Mr. Malik.  He was cross-examined about various details of his interaction with Ms. D before, during and following that meeting.

G.        The Evidence of Ms. D

1.         Overview

[272]        The evidence of Ms. D is at the heart of the Crown’s case against Mr. Malik.  It is the Crown’s theory that Mr. Malik engaged in a series of conversations with her that implicate him in the Air India/Narita explosions.  In particular, the Crown submits that on one occasion, Mr. Malik made a detailed and highly inculpatory statement to Ms. D which provides compelling evidence of his complicity in the conspiracy.

2.         Personal Background

[273]        Ms. D was [ ] years of age at the time of her testimony in these proceedings.  She came to Canada at the age of [ ] and is now a divorced mother of [ ] children.  Ms. D’s parents were both baptized Sikhs, though she, however, is not.  Ms. D learned English in her youth and speaks Punjabi poorly, though she can understand it if spoken slowly and softly. 

[274]        After moving to British Columbia in [ ], Ms. D took courses in early childhood and special needs education, following which she began her career in the childcare field.  She moved to [ ] in late 1990 and in approximately January, 1991, came across an advertised position for a teacher at the Khalsa School daycare.  She inquired about the position, leaving her name and contact number, but did not follow up with a resume since she had become busy with her new job at a different daycare centre.

[275]        In September, 1992, Ms. D was contacted by someone at the school and subsequently by Mr. Malik to attend for an interview.  She met with Mr. Malik at the pre-school and was immediately hired as the pre-school supervisor.  Although the position entailed a reduction in salary from what she had been earning elsewhere, Ms. D testified that she accepted it because it offered her a unique opportunity to become involved with the children of the local Sikh community.

[276]        Ms. D entered into a “non-Sikh employment contract” with the school which permitted her to wear dresses and to have short hair.  She began volunteering at the pre-school almost immediately, but was not placed on the payroll until sometime in October, 1992.  Ms. D worked full time at the school and testified that she worked long hours, generally starting before 8:00 a.m. and ending after 5:00 p.m.  She often worked weekends and described her responsibilities as including student enrolment, staffing, programming, obtaining government licenses and funding.  When asked about not being compensated for working many extra hours and weekends, Ms. D testified that she did not care because she loved her work and it was like “heaven”.  She testified that Mr. Malik appeared to appreciate her hard work.  He once compared her to his highly respected spiritual advisor, Bhai Jiwan Singh, whom he placed at nine on a scale of one to ten with her being an eight because she was not baptized. 

3.         Contact with Others at the Khalsa School

[277]        During her time at the school, Ms. D became friends with Satnam Kaur Reyat (“Mrs. Reyat”), the wife of Mr. Reyat, who was initially living with her four children in a suite located above the pre-school.  Ms. D worked and socialized with Mrs. Reyat at the pre-school daily.  Mrs. Reyat referred to her as her “little sister” and confided in her about personal matters. 

[278]        Ms. D also described a very good relationship with Narinder Gill, who was in charge of building maintenance and payroll at the school. 

4.         Relationship with Mr. Malik

[279]        Ms. D testified that she had a good relationship with Mr. Malik from the outset.  That relationship eventually evolved into one of love and respect.  At the commencement of her evidence, Ms. D testified that she continues to love, respect and miss Mr. Malik:

Q         [Ms. D], today do you hate Mr. Malik?

A          I could never hate him.  Never.

Q         Do you want to take revenge against Mr. Malik?

A          Oh lord, never.  Never.

Q         What are your feelings for him today?

A          I still love him.  I still respect him.  I miss him.  And I hate being here.  I just wish I wasn’t here.

Q         Did you ever make a promise to Mr. Malik about your love for him?

A          Yes, I did.

Q         What did you promise him?

A          I promised him no matter what, no matter where, regardless what, I’ll always love you, always respect you, and if I can, I will always be there to help you. …

[280]        Ms. D was also asked whether she felt that her testimony amounted to a betrayal of her promise:

Q         Do you feel that by giving evidence for the Crown you are breaking that promise?

A          Of course, yes.

Q         And how does that make you feel today?

A          Oh, don’t know how horrible I feel.  If there was any way, anything, I wouldn’t be here.  I just don’t want to.  It’s a betrayal that is so insulting to me.  I just – I just don’t want to.

[281]        Ms. D testified that Mr. Malik first informed her of his personal feelings towards her in January, 1995.  She was happy about this revelation but was unable to express her own feelings towards him.  They became very close that year and always found time to spend together.  Ms. D testified that her respect for Mr. Malik evolved to feelings of love.  They held hands and hugged but never kissed or physically consummated the relationship.  Mr. Malik came to the school on Monday, Wednesday and Friday of each week, always visiting her first.  Ms. D testified that Mr. Malik called her virtually every day from his office or home in 1995, 1996 and 1997.  In addition, she testified that she attended a number of political dinners with Mr. Malik to which his wife was not invited. 

[282]        Ms. D testified that Mr. Malik told her that he loved her and twice wrote her notes stating the same, though she destroyed them for fear of their being discovered.  Mr. Malik told her that he was no longer attracted to his wife and that their physical relationship was limited to holding hands and hugging.  He told Ms. D that he desired a sexual relationship with her, but feared he would lose everything if this breach of Sikh principles were to be discovered.  Mr. Malik told her that there might come a day when she would hate him, to which she responded that she could never hate him.

[283]        Ms. D testified that Mr. Malik would sometimes reveal confidential information which he asked her to record in the event she ever needed it in future.  He also told her very personal information about people such as Bhai Jiwan Singh and Balwant Singh Bhandher (“Balwant Bhandher”), as well as information regarding the collection of money to support the families of the assassins of Indira Gandhi. 

[284]        At the time of her testimony, Ms. D had not seen or spoken to Mr. Malik in a number of years.  She testified that she had last seen him in person outside the Khalsa Credit Union on April 19, 1998.  She had not spoken to him on the phone since leaving the pre-school in November 1997.

5.         Mr. Malik’s Admissions

a.         The Newspaper Confession

[285]        Ms. D described a confrontation she had with Mr. Malik in late March or early April, 1997, during which, according to the Crown’s theory, he confessed his role in the alleged conspiracy (the “Newspaper Confession”).  Ms. D testified that the Newspaper Confession took place on one of the following dates: March 28, 1997, March 31, 1997 or April 2, 1997.  She related the timing of this incident to an article in the Indo-Canadian Awaaz newspaper which was published on March 28, 1997 (the “Awaaz article”).

[286]        Ms. D testified that she arrived at the pre-school one morning and saw a number of staff members huddled in a corner whispering to one another.  They told Ms. D that they were reading an article about Mrs. Reyat and her husband. 

[287]        Ms. D called Mrs. Reyat and asked her to come to the school.  Ms. D obtained a copy of the newspaper and took it to the back room on the second floor of the school where she asked Mrs. Reyat to translate the article, written in Punjabi.  Mrs. Reyat told Ms. D that the article concerned the Air India investigation and mentioned that arrests would be made in June.  Mrs. Reyat told her that the article identified six people: Mr. Reyat, Hardial Johal, Mr. Bagri, Surjan Gill, Mr. Parmar and a prominent West End Sikh, which she explained was a reference to Mr. Malik. 

[288]        Ms. D testified that the discussion with Mrs. Reyat about the article had a strong impact on her emotional state, causing her to lose energy to the point that she could no longer stand.  Mrs. Reyat held her in her arms as she cried.  She wished that Mrs. Reyat had made everything up.  Ms. D testified that she could not believe what she had been told and hoped it was not true.

[289]        Ms. D testified that her thoughts then turned to Mr. Malik and how she could help him:

I was going to find out if it was truth.  I was going to get bottom to it and I was think – it was running in my mind how could I – how could I get us out of this.  What could I do to make it better.  What was there that I could do to help the person I cared so, so much about.  I just wanted to talk to Mr. Malik.  I just wanted – I wanted to make it all better for him.

[290]        Ms. D remained at the school following her conversation with Mrs. Reyat, testifying that she was anxious to speak to Mr. Malik and unable to concentrate.

[291]        Ms. D approached Mr. Malik in the trustee’s office at the school between 4:15 and 4:30 that day.  She entered the office and placed a copy of the article in front of Mr. Malik, who was on the telephone.  Mr. Malik looked down and said that it was too long for him to read.  Ms. D asked him to explain it.  She told him that she understood arrests would be made and asked, “Are we in trouble?”  Mr. Malik initially told her not to worry and said, “You know me; I donate money all the time”.  When she remained steadfast, he looked at her and then revealed the intimate details of the roles that he and others had played in the conspiracy. 

[292]        Mr. Malik explained that each person had been assigned a task and that he had been generally responsible for overseeing them.  He told her that he had booked two airline tickets at the downtown office of Canadian Airlines.  The first ticket he booked was for a flight from Vancouver to India, with connections in Japan and Bangkok.  He then booked a second flight from Vancouver to India, with a connection in Montreal.  He told her that there had been an issue with the second ticket going from a smaller to a larger airport so he had called back to change the connection from Montreal to Toronto, with a wait list for a continuing flight to India via England on Air India.  Mr. Malik said that he told the ticket agent that he would arrange to have the tickets picked up. 

[293]        Mr. Malik continued by explaining to Ms. D that he had provided money and instructions to Daljit Sandhu to pick up the tickets.  He explained that, as there were insufficient funds to pay for return tickets, Daljit Sandhu had changed them to one-way tickets.  He had also changed the names on the tickets to two people who lived near the Ross Street Temple and the contact telephone number to that of the Ross Street Temple.  Mr. Malik told her that Daljit Sandhu was “dressed up” when he went to get the tickets; his beard was in a net and he wore a “fancy ring”.   

[294]        Mr. Malik told Ms. D that Hardial Johal was a hard working man who did a lot of running around and was part of the group that delivered the suitcases to the airport.  He had run around the airport encouraging any Sikhs he saw not to board the plane.  Mr. Malik also told her that Mr. Bagri, Balwant Bhandher and another male had gone with Hardial Johal to the airport with the suitcases, that Balwant Bhandher had driven to the airport in his brown van and that the delivery had been “really good”. 

[295]        Ms. D asked about Balwant Bhandher, stating that he was a pretty strong guy who would not be scared.  Mr. Malik replied that he was, in reality, a “big chicken like you” and related a story about his being stopped in his van by the RCMP in the 1990s and how he had panicked, fearing arrest for his involvement in the conspiracy. 

[296]        When Ms. D asked about Mr. Reyat, Mr. Malik replied that he was not very intelligent and would be stuck in jail his entire life. 

[297]        Mr. Malik told her that Surjan Gill had worked hard, but had decided at the last minute not to participate in the plan.  When Ms. D asked whether Surjan Gill might tell anyone about it, Mr. Malik told her not to worry and that it was well taken care of.  He also told her that he had sent Satwant Sandhu to assist Mr. Reyat when he was having difficulties building a bomb. 

[298]        Mr. Malik stated that if things had gone right and the plane had arrived on time, there would have been a far greater impact; there would have been far more deaths and people would have known what they were about.  People would have understood Sikhism as well as Khalistan and would have known what they were fighting for. 

[299]        Mr. Malik stated that the Sikhs on the plane were not real Sikhs.  He related the story of a woman who had come to his stall and purchased a kara for her 9 or 10 year old daughter a week before the crash.  He could not recall who the family was but recalled that the woman’s husband had died in an accident and that they lived in her brother’s basement. 

[300]        Ms. D asked Mr. Malik if there was anything that would “get him”.  He told her not to worry, saying that if there was anything, it was in the ocean off the coast of Ireland and nothing had been found on him. 

[301]        Mr. Malik referred to the conspiracy as “the project” and told Ms. D that a number of people had gathered at Mr. Parmar’s house and waited for word that the planes had taken off smoothly.  She testified that those people were Hardial Johal, Mr. Bagri, Mr. Parmar, Daljit Sandhu, Balwant Bhandher and Man Mohan Singh.   

[302]        Ms. D testified that she asked Mr. Malik why he had participated in the plan.  He replied that because of her upbringing, she did not understand Sikh politics and the Khalistan issue. 

[303]        Ms. D described Mr. Malik’s demeanour during the conversation as soft-spoken with a hint of sadness in his voice, though at times he grinned.  At the end of the meeting, Mr. Malik told Ms. D that he did not want her repeating the details of the conversation to anyone or acknowledging that she knew anything.  He warned her that people would know that it came from him and that it would get her into a lot of trouble.  Mr. Malik told her that he could protect her if he was there, but that there would be times when he would have to deny that he had told her anything.  He told her to remember that he could not always protect her.  He then sent her to get hot water for tea. 

[304]        Ms. D saw Narinder Gill speaking to Mrs. Kuldip Sekhon when she left the office.  She had a conversation with him about the article and then brought Mr. Malik his hot water.

b.         The Cudail Discussion

[305]        Ms. D gave evidence about an incident involving the attempted suicide of a female student at the Khalsa School, Pritty Cudail (the “Cudail Discussion”). 

[306]        Ms. D and the vice-principal of the school had regularly visited the girl at the Surrey Memorial Hospital during her recovery.  Ms. D testified that while initially supportive of these visits, Mr. Malik later told her to end them.  The Khalsa School conducted an internal investigation into the incident. 

[307]        On May 8, 1996, Mr. Malik phoned Ms. D at approximately 11:30 a.m. and told her that he did not want her speaking to the girl’s family or visiting her in the hospital.  Later that afternoon at approximately 4:30 p.m., Mr. Malik came to see her in her office.  She testified that Mr. Malik was angry with her, questioning her intelligence and raising issues with respect to her manner of dress and allegations she was having an affair with Narinder Gill. 

[308]        Ms. D testified that the conversation then turned to issues surrounding the attempted suicide.  She testified that during this discussion Mr. Malik stated, “If one child dies for Sikhism so what”, and, “Others will learn not to break the rule, we will not be bending our rule for anyone”.  Mr. Malik then looked at her and said “1982, 328 people died; what did anyone do? … People still remember Khalistan”.  When Ms. D did not respond, he said, “you know what I mean.”  He continued, “you were in [ ]” and she responded “[ ]”.  Mr. Malik then said, “We had Air India crashed” and, “nobody, I mean nobody can do anything.  It’s all for Sikhism.  Cudail won’t get anywhere.  Ministry won’t listen; no one will”.  Ms. D testified that Mr. Malik was calm but very serious during this conversation.  He pointed his index finger at her and stated, “I am like a Hindu god and I have Chakkar on my finger.  I rotate everything.  And all – everyone follows.  Trustees follow it”. 

[309]        After the conversation, Mr. Malik asked Ms. D to go for a coffee.  He then got up, rubbed her back and told her to remember that he loved her.  Ms. D testified that she did not leave with Mr. Malik, and broke down emotionally.  She could not stop crying and wrote things on pieces of paper including, “If one child dies, so what” and “1982, 328 people died.  So what.  Air India crashed.  We had Air India crashed.  So what”.  She left the school with the larger pieces of paper and her journal, leaving a pile of scrap paper on her desk.  The next morning, Mrs. Reyat saw some of what was written on the scrap paper, and the two of them ripped up and discarded it.

c.         The Anashka Conversation

[310]        Ms. D testified that in approximately April, 1997, following the Newspaper Confession, she overheard a conversation between Mr. Malik and Raminder Singh Bhandher (“Mindy Bhandher”) in the trustee’s office at the school.  They were discussing an incident in which Mr. Malik, Mr. Bagri and Mr. Parmar had been looking at a diagram of an aircraft.  Mindy Bhandher explained to Mr. Malik that Mr. Narwal’s son, who had walked in on that meeting, had been telling people about it.  Mr. Malik asked Mindy Bhandher why he did not try to stop him or shut him up. 

[311]        Ms. D entered the office at the point that Mr. Malik began to sound angry.  After Mr. Malik excused Mindy Bhandher, Ms. D questioned him about what she had heard.  Mr. Malik explained that there had been an occasion when Mr. Narwal, Mr. Bagri and Mr. Parmar had been looking at an anashka (plan or drawing) in a Kamloops basement while Mr. Parmar did calculations.  Ms. D could not recall whether the basement had been that of Mr. Narwal or Mr. Bagri.  Mr. Malik explained that the anashka was “about the Air India that fell” and that Mr. Narwal’s son had come running down the stairs while they were looking at it.  Mr. Malik told her that this incident had taken place prior to the Air India disaster.

d.         The Mr. B Discussion

[312]        Ms. D testified about a 24-hour religious program she had attended with Mr. Malik in May, 1997.  During a discussion with him about who was in attendance, she mentioned that Mr. B was not present.  Mr. Malik told her that Mr. B had not attended because he was mad at Mr. Malik, explaining that they had had a falling out over $240,000 and that he had once asked Mr. B to take a suitcase on a plane for him.  When she asked what was going to be in the suitcase, Mr. Malik replied that “it was a device that he wanted to send on the Air India plane he was going on”. 

e.         The Calgary Meeting

[313]        Ms. D testified that Mr. Malik told her about a meeting at Balwant Bhandher’s Calgary residence, prior to the Air India bombing, which he had attended with Balwant Bhandher, Mr. Reyat, Mr. Parmar, and Bhai Jiwan Singh.  He told her that the purpose of the meeting had been to discuss the progress of the Air India plan.

f.          The Seattle Meeting

[314]        Ms. D testified that Mr. Malik had told her that his spiritual leader, Bhai Jiwan Singh, had been aware of the Air India plot because he had blessed it during a religious program in Seattle prior to the explosion.  Mr. Malik told her that Mr. Parmar, Mr. Reyat, Balwant Bhandher, Narinder Gill and certain Babbar Khalsa members from Seattle had been present. 

6.         Evidence Regarding 1996 and 1997

[315]        Ms. D testified that her relationship with Mr. Malik became strained after she had an argument with Aniljit Singh Uppal (“Mr. Uppal”) in August, 1997.  Mr. Uppal, a trustee at the Khalsa School, demanded an apology but she refused.  Later that evening, Ms. D received a telephone call from Mrs. Sekhon informing her that Mr. Malik also expected her to apologize to Mr. Uppal.

[316]        Ms. D met with Balwant Bhandher twice on August 28, 1997.  During the second meeting, he accused her of taping conversations and of being a CSIS spy.  She testified that he pushed her onto a chair, placed his hand on her and told her that she was going to provide a written resignation to the school in which she indicated she was doing so voluntarily.  Balwant Bhandher told her that she was never to go to the media or the police, and that Mr. Malik had the power to have the RCMP arrest her.  Ms. D told Balwant Bhandher that he should prepare the letter for her signature and that she would pick it up at the end of the week.

[317]        Ms. D called Mr. Malik at home later that evening and asked why she was being accused of being a spy.  He replied that Kuldip Kaur had told him she had been recording their conversations.  Mr. Malik indicated that he was very afraid of her and did not want her at the Khalsa School, though he did not wish her to resign from the pre-school.  He asked her to write a letter stating that she would not enter the Khalsa School

[318]        Ms. D wrote such a letter on September 8, 1997 which Mrs. Reyat faxed to Mr. Malik the following day.  Ms. D subsequently received a telephone call from Narinder Gill advising her to re-write the letter since Mr. Malik was upset about a reference it contained to being passed on to the “appropriate authorities”.  Satwant Sandhu then came to her office and drafted a new letter for her to sign.  Ms. D re-wrote the text of the letter and provided it to him.  It read, “I, [ ], hereby promise not to get involved in Khalsa School Surrey’s affairs”. 

[319]        After the letter was forwarded to Mr. Malik, he began asking for her resignation from the pre-school.  In September, 1997, Mr. Uppal was placed in charge of the Khalsa School.  Ms. D acknowledged that she understood that the school was attempting to cut ties with her between August and October, 1997. 

[320]        Ms. D and Mr. Malik had a meeting on October 17, 1997 during which he told her that she had the choice of resigning or being laid off.  He also offered her the option of staying at the school, but upon signing a blended employment contract.  Mr. Malik told her that she would be required to follow all of the Sikh contract rules and donate 10% of her salary to the school.  Ms. D refused and accused Mr. Malik of changing the rules and hiring her on false pretences.  She testified that she and Mr. Malik then walked together to the Khalsa School.  During this walk he confronted her with the allegation that she had been taping his telephone calls.  He then propositioned her for a sexual relationship.

[321]        Ms. D testified that Mr. Malik called her the morning of October 20 and told her that he was afraid of her, that she knew too much, and that he wanted her to resign.  That same day, she received two threatening telephone calls from a person with a Punjabi accent warning her that she was being watched and that she should leave Mr. Malik alone.  Later that evening, she observed a van following her and felt that the people inside were trying to intimidate her.  When she confronted Mr. Malik about these incidents, he told her that it was too bad and that she should resign.

[322]        Ms. D described two phone calls she received from Mr. Malik on November 1, 1997.  During the first, he asked whether she had considered her resignation.  She replied that she did not wish to discuss the matter and asked him not to call her at home and bother her about resigning.  Mr. Malik called backed shortly thereafter and told her she was fired and was being laid off as of the following Monday.  Ms. D responded that she wanted it in writing. 

7.         Human Rights Complaints

[323]        Ms. D filed a complaint with the British Columbia Human Rights Commission (the “BCHRC”) on May 23, 1996.  The focus of this complaint related to comments by Mr. Uppal regarding her manner of dress and the fact that she was being asked to sign a Sikh employment contract.  She testified that Mr. Malik had told her beginning in about 1994 that Mr. Uppal did not approve of and was embarrassed by her manner of dress. 

[324]        Ms. D testified that on the same day that she filed her human rights complaint, she was persuaded by Mr. Malik to withdraw it. 

[325]        In September, 1997, Ms. D again contacted the BCHRC.  She received blank forms from the Commission by mail on November 4, 1997, the day after she ultimately left the pre-school.  This complaint was received by the BCHRC on November 21, 1987.  It named the Trustees and Board of Directors of the Satnam Education Society, and detailed a number of areas of employment discrimination under the headings Religion, Personal Grooming, Sexual Harassment, Defaming of Character, Physical Harassment, Verbal Harassment and Mental Harassment.

8.         Ms. D’s Civil Action

[326]        In January, 1998, Ms. D commenced a civil lawsuit against the Satnam Education Society, Mr. Malik, Balwant Bhandher and Mr. Uppal, alleging that she had been wrongfully dismissed from her position at the pre-school.  She testified that she commenced the lawsuit because she “wanted to make a difference” and that she had been embarrassed and mistreated as a female employee.  The lawsuit was settled out of court, with Ms. D agreeing to accept the sum of $12,000.

9.         Contact with CSIS

[327]        Ms. D testified that she first learned of the existence of CSIS in February, 1997.  She had been at Balwant Bhandher’s house discussing a problem when he turned to her and told her that he thought she had been trained by CSIS and was working as a CSIS spy.  Mr. Malik had also confronted her about being a CSIS spy sometime prior to September, 1997.

[328]        Ms. D testified that she spoke to Jasminder Kaur Sahota (“Mrs. Sahota”) in September, 1997 regarding rumours circulating in the community that she was a CSIS spy.  She told Mrs. Sahota that she was tired of the rumours and was prepared to approach CSIS directly to ask about them.  Mrs. Sahota told her that she herself had been in contact with CSIS and provided Ms. D with the business card of CSIS agent, Nicholas Rowe (“Mr. Rowe”).  Ms. D testified that her sole interest in approaching CSIS was to discover who was spreading the rumours about her, adding that she was not interested in providing them with any information. 

[329]        Ms. D contacted Mr. Rowe from work in October, 1997 and they agreed to meet at a Starbucks in Surrey.  When asked if she recalled what she told Mr. Rowe, she replied:

I said, Mr. Rowe, I have a question to ask you.  I said, is there someone in CSIS spreading around that I am spying for them.  And he said, no.  I said, I want a true answer, because I am being accused and I don’t know where it is coming from.  Please tell me, because I’m not going to stop hunting till I found out – find out who is spreading about me being a CSIS spy.  And he goes, who told you you are CSIS spy.  I said, Balwant Singh Bhandher and Mr. Malik have called me a CSIS spy, and I said, my job is in jeopardy.  I cannot concentrate at work; I’m having a very difficult time.  And I said, I just want to know.  And I said, just pray to God it’s not you guys, because I am very upset.

[330]        At the conclusion of the conversation, Mr. Rowe gave her his business card, and indicated that he would check into matters and get back to her.

[331]        Ms. D met with Mr. Rowe again a few days later at a hotel.  She recalled him being in the company of a woman and asking about the Satnam Education Society.  Ms. D met with Mr. Rowe a subsequent time, also at a hotel, but did not recall any of the details of that meeting.  She claimed for the most part to have little recollection of discussing a litany of improper and illegal activities that she believed were taking place at the Khalsa School.

[332]        Ms. D testified that she repeatedly told Mr. Rowe that she did not want to meet with the RCMP and did not trust them. 

[333]        Ms. D met with Mr. Rowe again on October 30, 1997 in New Westminster.  She testified that when Cpl. Doug Best of the RCMP unexpectedly attended the meeting, she felt “ticked off” and wanted to leave.  Ms. D felt she had not “hit it off” with Cpl. Best.  When he mentioned that he was with the Air India Task Force, she lost any interest in talking to him. 

[334]        Ms. D testified that her last contact with Mr. Rowe was on November 1, 1997 when she called to tell him about the telephone calls she had received from Mr. Malik that day.

10.       Dealings with the RCMP

[335]        Ms. D met with the RCMP on Sunday, November 2, 1997.  She met with Cpl. Best and Insp. Bass at an RCMP detachment in Surrey and recalled the meeting lasting for 20 to 25 minutes. 

[336]        On Monday, November 3, she met Cpl. Best and a number of other RCMP officers at a White Spot restaurant.  They provided her with a transmitting device to carry in her purse when she attended at the pre-school, and instructed her to signal them if she felt threatened by indicating that she had a headache.

[337]        When Ms. D arrived at the school she was immediately asked to leave by Mr. Uppal.  Ms. D requested written proof that she had been fired.  Mr. Uppal subsequently returned with Balwant Bhandher and handed her a letter to that effect.  Ms. D testified that she then took a phone call and, feeling that Mr. Uppal and Balwant Bhandher were getting too close to her, called for the assistance of the RCMP by giving the pre-arranged signal.  A number of officers responded to the call and eventually escorted Ms. D out of the school.  Ms. D attended the police station later that morning and provided her first formal statement to the RCMP.

11.       Delay in Reporting the Newspaper Confession

[338]        Ms. D did not reveal the Newspaper Confession to the RCMP until raising it in a discussion with Cpl. Best on March 23, 1998.  She then met with S/Sgt. Schneider and Cpl. Best on April 2, 1998 and April 27, 1998, and provided a formal statement about the alleged incident. 

[339]        Ms. D testified that she had not earlier revealed this information because she did not think it was of any value and also did not wish to become involved in the Air India case:

Because I didn’t know that my statement had any value.  What I was telling Mr. Schneider and Bellows [sic] I didn’t tell them thinking it had any effect.  Like, it wasn’t – I don’t have proof for that and I wasn’t there, so what I was telling them was information I got from Mr. Malik, so it wasn’t as if I was part of that. …

And I just didn’t want to be involved with anything.  And I told Nick Rowe, I told Doug Best, don’t put me anywhere near anything dealing with Air India.  I don’t want to have anything to do with it.

12.       The Journal

[340]        Ms. D kept a journal and collected personal information in a filing cabinet she kept at her home.  She recorded confidential information given to her by Mr. Malik and kept it in her files.  She testified that she destroyed much of this material after leaving the pre-school because she did not want it discovered, concerned about the appearance of possessing such information in the face of allegations that she was a spy.

[341]        One document she did not destroy was a Kleenex tissue containing words written by Mr. Malik.  It read, “Dear [ ]”, followed by a short incomplete statement about how she would be compensated.  Ms. D testified that Mr. Malik had written this as proof that she would not get into trouble for refusing to sign fraudulent documents regarding government funding for a desired expansion to the Khalsa School.

[342]        During her first police interview on November 3, 1997, Ms. D mentioned that there was a reference to the Cudail Discussion in her journal.  She provided Cpl. Best with some pages from her journal when she met with him on November 7, 1997.  Included in those pages was a detailed reference to the Cudail Discussion, containing the words, “1982 – 328 people died – what did anyone do” and “We’d Air India crashed”.

[343]        Three days later Ms. D provided Cpl. Best with a further portion of her journal dealing with her human rights complaint and civil lawsuit.  She turned over other portions during a Crown interview in June, 1999.

[344]        Ms. D testified that she first destroyed materials contained in her journal after leaving the pre-school on November 3, 1997.  After removing material she felt she needed, she burnt those pages dealing with school issues and information given to her by Mr. Malik.  Ms. D destroyed material in her filing cabinet at the same time, burning them in her fireplace.  She explained that she feared getting into trouble for spying on Mr. Malik if she was ever searched.  She also wanted to keep her relationship with him private.  Ms. D acknowledged that she continued destroying materials between the various dates that she produced portions of her journal to the police and the Crown.

[345]        Ms. D was cross-examined extensively about the following journal entry that she wrote under the handwritten dates, February 28 – 16 March 1997:

[Mrs. Reyat] told me some stuffs that came in paper it shocked me I confronted Malik and he confirmed but told me not to worry but I am worried I care about him and Mrs. Reyat. …

[346]        Ms. D maintained her position that this reference did not relate to the Newspaper Confession, suggesting at times that it referred to another incident in which Mrs. Reyat had told her of things from the newspaper which resulted in her confronting Mr. Malik. 

[347]        Ms. D was confronted with notes of her interview with Crown counsel which indicated that, when asked whether this passage referred to the Newspaper Confession, she had answered in the affirmative.  The fact that the Crown had explicitly referenced this journal entry as corroboration of Ms. D’s evidence about the Newspaper Confession at Mr. Malik’s bail hearing was also raised.  In response, Ms. D insisted that she had always maintained that she had never written about this incident in her journal, and suggested that Crown counsel may have become confused about this issue during their many days of interviews. 

[348]        Ms. D was also cross-examined with respect to alterations she had made to a number of pages in her journal which had become apparent when comparing pages copied by the RCMP in November, 1997 with the same pages provided by Ms. D in June, 1999.  This cross-examination focused on a change to the date of an entry and the addition of words for the apparent purpose of making the journal appear to flow chronologically.  When questioned about these changes, Ms. D explained that she had made them during a Crown interview while just “doodling with a pen”.  She denied that there had been any reason for the alterations and claimed that none had been deliberate. 

13.       Interaction with Mr. B

[349]        Ms. D testified that she received a telephone call from Narinder Gill in the spring of 1998 asking if she would take Mr. B to meet with her lawyer because he, too, was having problems with Mr. Malik.  Ms. D spoke with Mr. B and they planned to meet at a later date at the Burrard Skytrain station and attend at her lawyer’s office. 

[350]        Ms. D sat in on the meeting between her lawyer and Mr. B as the latter described his relationship and history with Mr. Malik.  At one point, Mr. B mentioned that he had once asked Mr. Malik for money and that Mr. Malik had wanted him to carry suitcases on Air India.  Ms. D testified that both she and her lawyer interrupted Mr. B and told him that they were not there to discuss that matter. 

[351]        After the meeting, Ms. D and Mr. B walked back to the Skytrain station.  Ms. D testified that she had asked Mr. B whether he had gone to India and whether he was the person who had not wanted to carry the suitcases.  He replied, “Yeah, you know about that”.  Ms. D told him that she did.  She said that he became angry and commented that he would have been in trouble at customs over the suitcases.  Ms. D could not recall whether she had subsequently spoken to Mr. B by telephone since that meeting at her lawyer’s office.

14.       Threats and Life in the Witness Protection Program

[352]        Ms. D described threats and harassment to which she had been subject since leaving the pre-school: 

·         On February 14, 1998, she was warned by a relative of Balwant Bhandher to be careful because Mr. Malik, Mr. Bhandher and Mr. Uppal had met and would “try to shut her up permanently”. 

·         A few weeks after this incident, Ms. D was at a Skytrain station when an East Indian male approached her and told her to “watch it or Malik will finish you”, before making a threatening gesture with his fingers across his neck. 

·         In March, 1998, eggs were thrown at Ms. D’s house in the middle of the night.  She also received a number of unsettling phone calls that same month. 

·         In June, 1998, Ms. D was shopping with her child at the Guildford Shopping Centre when a former acquaintance from the Khalsa School approached her and warned her that she was creating a lot of problems.  This individual was aware of personal information about her child and warned her that she and her family would be severely harmed if she did not “watch it”. 

[353]        Following these incidents, the RCMP moved Ms. D to a number of temporary homes.  While Ms. D assumed that her fifth move would be permanent, she subsequently ran into someone from her past and had to be moved yet again.  She emotionally described how being in the witness protection program had cost her her job, family and contact with friends.  She continues to have constant concerns about her safety and security.

15.       The Cross-examination of Ms. D

[354]        Ms. D was cross-examined on a number of topics, some of which included:

·         her employment and emotional attachment to the pre-school;

·         her relationship with Mr. Malik;

·         circumstances surrounding the Newspaper Confession;

·         circumstances surrounding the Cudail Discussion;

·         whether she read books written about Air India;

·         the Seattle Trip;

·         the Anashka conversation;

·         her dealings with Mr. Rowe;

·         her dealings with the RCMP;

·         her November 7, 1997 statement to the RCMP; and

·         her allegations regarding Satwant Sandhu.

a.         Emotional Attachment to the Khalsa Pre-school

[355]        Ms. D was cross-examined about her emotional attachment and feelings towards the Khalsa School.  When questioned about a journal entry in which she described the pre-school as being “like her baby”, she explained the reference as being in the context of her long hours at her job and the fact that she would never harm the pre-school.  Ms. D also acknowledged that she wrote the following in her second complaint to the BCHRC:

The Trustees promised me a permanent job, so I spent numerous hours of personal time and money.  I regarded the place as my home and my own school because that is what the trustees told me it was.

[356]        She explained that it had been her understanding that all Sikhs considered the Khalsa School as their own community school and that she had not been suggesting that she owned it or that it belonged to her in making that statement.

b.         Relationship with Mr. Malik

[357]        The cross-examination of Ms. D on this issue focused on her relationship with Mr. Malik and others at the Khalsa School from the spring of 1996 to the fall of 1997.  Referencing a number of her journal entries, the defence repeatedly suggested to Ms. D that her relationship with Mr. Malik had not been one of love and trust as she had testified in her direct examination.

[358]        When asked, for example, whether there had been times in the spring of 1996 when she had thought that, had she not loved her job so much, she would not “take Mr. Malik’s garbage”, she agreed there had been such times.  Even so, Ms. D maintained that she had had a loving relationship with Mr. Malik, though she would confront him on certain matters, after which he would apologize and they would make up. 

[359]        Ms. D conceded that she had been aware that there had been a movement to remove her from her position at the pre-school and that Mr. Malik’s treatment of her in relation to the Cudail incident had been hurtful.  She further agreed that certain improper and illegal actions at the Khalsa School troubled her and that she had concluded at certain points that “Mr. Malik’s religious beliefs were a façade”.  Ms. D acknowledged that she had written in her journal that Mr. Malik was “a thief hiding behind religion.  He misuses the trust account”.  This entry, she explained, referred to her feelings in relation to a particular incident at the time which did not create any issues for her with respect to her “love affair” with Mr. Malik.

[360]        Ms. D was also questioned about the apparent inconsistency between her direct evidence that she and Mr. Malik “were doing pretty good” in December, 1996 and her journal entries from the same time period.  In an entry written near the end of November, 1996, for example, Ms. D wrote that she had told her husband that,

I’m slowly going to break my ties with Mr. Malik.  I don’t trust him.  I’ll stop visiting slowly – I’m now scared of my life.  I like my job but these people are weird.

[361]        She agreed that she had been troubled at the time, but stated that she had found it difficult to leave. 

[362]        Other matters about which Ms. D was questioned included Balwant Bhandher’s allegations that she was a CSIS spy, her May, 1996 human rights complaint, the campaign to force her to resign from her job and Mr. Malik’s close involvement in that regard. 

c.         The Newspaper Confession

[363]        The cross-examination of Ms. D on this topic focused on her delay in coming forward with the Newspaper Confession and the fact that she had told the RCMP on November 7, 1997 that Mr. Malik had made no references to Air India other than what he had stated in the context of the Cudail Discussion.  The following exchange was recorded in her RCMP statement of that date:

Q         Are there any other references that you can recall or that you have a note on where Mr. Malik specifically made reference to Air India?

A          No.

[364]        Ms. D was cross-examined about her response:

Q         … Were you asked that question by Cpl. Best?

A          Yes, sir.

Q         Is that – is your – is your answer true?

A          From what I understood and the way he asked, my answer to that was no.

Q         So the answer – your answer is true?

A          From that understanding, yes sir, because I didn’t have any other evidence or anything on Air India, sir.

Q         Okay.  Well, let’s take it in two stages.  If Malik had made any other references to Air India, is it true to say no?

A          Did he make any other reference to Air India?

Q         Yes.

A          The way you are explaining I would say not true.  But the way – in --

Q         Okay. Well, let’s just – you can explain.  I just want to understand your evidence.  When you answer no, Malik did not make any other reference, that is an untrue answer, is it?  It’s a false answer?

A          If you break down it’s – to answer that I would say no as if – as I don’t have any proof.

Q         Well, he – you say he told you things in the office –

A          Yes, sir.

Q         -- concerning the newspaper?

A          Yes, sir.

Q         That’s something – a reference to Air India, surely?

A          Yeah, but I don’t have proof to it, sir.

Q         But he said those things to you?

A          But he said lot of things in five years to me, sir, but I do not have proof.

Q         Well, I don’t understand that.

A          From my point of view, if I say something I need to show proof.  I didn’t have any proof.  And I didn’t have anything to show for my talks with Mr. Malik.

[365]        When asked why she eventually disclosed this conversation to the RCMP, Ms. D gave the following answer:

I remember we were sitting – Mr. Best and I were sitting and I talked to him and I said, oh, you know, I – I can’t start where – remember how the conversation started, and I started talking about it and – as I was taking he didn’t say anything.  He was just looking at me, and when I was done, he said, how do you know.  I said, oh, Malik told me.  And he said, you never discussed this before.  I said, I didn’t know if there was any reason to say.  I said, I don’t know; why.  He goes, it’s a very important thing.  I said, I don’t think it’s important; I have no proof of it.  And it was just a conversation between Mr. Malik and me.  I couldn’t – he got excited.  I didn’t.  And he said, I’ll get back to you about this. …

[366]        Ms. D was also cross-examined about her reason for pressing Mr. Malik for details during the conversation, her lack of reaction to being told by the person she loved that he was a mass murderer, her continued support of Mr. Malik, and why she continued to work at the pre-school. 

d.         The Cudail Discussion

[367]        The cross-examination of Ms. D regarding the Cudail Discussion focused on the following issues:

(i)                              her lack of reaction to the alleged confession to mass murder by Mr. Malik and her focus on his treatment of Pritty Cudail;

(ii)                            the possibility that Mr. Malik had said “When Air India crashed” instead of “We had Air India crashed”;

(iii)                           the meaning and accuracy of her journal entry “We’d Air India crashed”;

(iv)                          inconsistencies in her recitation of this conversation including the references to “we finished 322 people” and “we lost 329 people”;

(v)                            whether she had any independent memory of the words actually spoken by Mr. Malik on May 8, 1996;

(vi)                          whether she went with Mr. Malik to A & W after the conversation;

(vii)                         her actions following the conversation, including writing notes on various pieces of paper; and

(viii)                       her interaction with Mrs. Reyat the following morning.

e.         Reading Books about the Air India Explosion

[368]        Ms. D was questioned whether she had read either Soft Target or The Death of Air India Flight 182, books that had been written about the Air India crash prior to her involvement with the RCMP.  Ms. D specifically denied having read either book.

f.          The Seattle Trip

[369]        Ms. D was cross-examined about inconsistencies in her evidence regarding the Seattle trip and the fact that she had not revealed Mr. Malik’s statements in that regard until a Crown interview on October 30, 2003, the day before she commenced her evidence in these proceedings. 

[370]        Ms. D was uncertain with respect to the timing of her conversation with Mr. Malik about this trip.  She was also questioned about her statement to the Crown about having discussed the trip with Narinder Gill on three separate occasions.  She replied that she could no longer remember discussing this issue with him, nor could she recall that portion of the Crown interview from a few weeks earlier.

g.         The Anashka Conversation

[371]        Ms. D was cross-examined on a number of her prior statements regarding this incident.  In particular, she was questioned about her delay until October, 2000 in reporting it to the police, as well as a number of apparent inconsistencies regarding the details of how she had come to learn about this incident. 

h.         Dealings with CSIS

[372]        Ms. D was cross-examined about her state of mind leading up to her initial contact with CSIS.  She testified that she had only contacted CSIS to find out who was spreading rumours about her being a CSIS agent:

Q         …I’m interested in your state of mind leading up to the call to CSIS.

A          Yes, sir.

Q         You wanted to find out who was spreading the rumours?

A          Yes, sir.

Q         And that’s all you wanted to find out?

A          Yes, sir.

Q         No interest in all about talking about anything?

A          Yes, sir.

Q         Just getting information?

A          Yes, sir.

Q         Not giving information?

A          As I recall, I wanted to find out what was going on.  Why I was accused of things.

Q         Well, this is – you’re going to meet a CSIS agent, so presumably you would remember what your state of mind was.  That’s a pretty big event, isn’t it?

A          Yes, sir.

Q         Okay. So can we safely conclude that you wanted to find something out but had no intention at all and did not want to give any information?

A          Yes, sir.

[373]        Ms. D claimed little recall of her meetings with Mr. Rowe.  She testified that she had raised the issue of the rumours of her being a CSIS spy at the first meeting at Starbucks and that Mr. Rowe had told her that he would get back to her.  She said that she did not really know why she was meeting with Mr. Rowe on this occasion and that the only other thing she recalled was that she had told Mr. Rowe that she did not want to meet with the RCMP as she was afraid of them.

[374]        Ms. D also claimed to recall little of her hotel room meetings with Mr. Rowe, though she recalled leaving the first of those meetings believing that things would be okay and that he would help clear her name.  Ms. D testified that she recalled Mr. Rowe asking her questions about the Khalsa School during the second meeting, but little else.  She also testified about a third hotel meeting, which left her feeling a little more positive about solving her problem.

i.          Dealings with the RCMP

[375]        Ms. D confirmed in her cross-examination that she had no interest in meeting with the RCMP and that she did not trust them.  She had not been happy to see Cpl. Best when he unexpectedly appeared at the October 30, 1997 meeting and she left that meeting wanting to have no further dealings with the RCMP.

[376]        Ms. D was also cross-examined about her meetings with the RCMP on November 2, 1997 and her attendance at the Khalsa School with a transmitter hidden in her purse.  She testified that she had been very frightened when she met with the RCMP that day.  She recalled the meeting lasting only 20 to 25 minutes and did not think that she had discussed Mr. Malik or any of his allegedly fraudulent activities. 

[377]        Ms. D was questioned in detail about her contact with the RCMP between November 10, 1997 and April 2, 1998.  With the exception of a statement to the RCMP Commercial Crime Unit on January 8, 1998, she indicated that her contact was limited to weekly visits by Cpl. Best or S/Sgt. Schneider to change the video cassettes in the security cameras that had been installed at her house.  She denied ever having discussed the Air India investigation with them during this time period and repeatedly stated “I don’t remember” when questioned about information attributed to her in the notes and reports of Cpl. Best and S/Sgt. Schneider.  Ms. D specifically denied ever agreeing to become an agent for the RCMP or to gathering evidence on Mr. Malik or Hardial Johal.  She also denied ever telling the RCMP that she was prepared to become a witness in court.

H.        The Evidence of CSIS Agent Nicholas Rowe

1.         Direct Examination

[378]        A CSIS agent since 1991, Mr. Rowe’s mandate in the mid-1990s included the Sikh extremist movement in British Columbia.  He was contacted by Gurdawar and Jasminder Sahota (the “Sahotas”) and met with them on October 5, 1997.  Mr. Rowe testified that they related information to him about activities in the Sikh community, including information about the Khalsa Credit Union and the Khalsa School.  He also spoke separately with Narinder Gill, who had attended part of this meeting.  At its conclusion, Mr. Rowe provided the Sahotas and Narinder Gill each with one of his business cards. 

[379]        Mr. Rowe’s first contact with Ms. D came on October 15, 1997.  Ms. D, calling from the Khalsa daycare centre, left him a voice message at the number on his business card.  Mr. Rowe returned the call later that day, at which time Ms. D indicated that she had information she wished to pass on that was “in the same vein” as that which he had discussed with friends of hers (assumed by Mr. Rowe to be the Sahotas).  They agreed to meet on October 17, 1997 at a Starbucks in Surrey.

[380]        Mr. Rowe and Ms. D met in the afternoon on October 17 as agreed.  They spoke for approximately ten minutes inside the coffee shop before moving to Mr. Rowe’s vehicle in the parking lot once he became aware that Ms. D had been subjected to threats.  Mr. Rowe testified that Ms. D told him that she was concerned for the safety of herself and her family as she had been the victim of threats and intimidation.  She also indicated that Mr. Malik had accused her of informing on him to the Government of British Columbia and that Balwant Bhandher had accused her of being a CSIS spy.  The meeting concluded with Mr. Rowe providing Ms. D with his code name and their agreeing to meet again at a secure location.

[381]        Mr. Rowe contacted Ms. D on October 20 to arrange a meeting for the following day.  They met at a Surrey hotel on October 21 and again on October 24 for meetings which each lasted approximately two to two-and-a-half hours.  Mr. Rowe prepared for these meetings by reviewing the CSIS database and preparing a list of questions loosely organized under subject headings.  Mr. Rowe testified that he utilized these two meetings to gather as much information as possible from Ms. D.

[382]        Mr. Rowe and Ms. D had further telephone contact on October 26, 27 and 28 for the purpose of setting up a subsequent meeting.  CSIS had been considering whether to utilize Ms. D as an ongoing source during this time but by October 29 had decided against a continuing relationship with her and determined that she should be handed over to the RCMP.  Mr. Rowe testified that Ms. D was not told of that decision prior to October 29.  She had, however, been made aware of security concerns and the fact that the RCMP might need to be involved for that reason.

[383]        On October 29, Mr. Rowe contacted Cpl. Best of the RCMP’s Air India Task Force and set up a meeting to introduce him to Ms. D.  Mr. Rowe also called Ms. D and told her that they would be having a meeting later that day to discuss the issue of her transfer to the RCMP.  He testified that Ms. D accepted this arrangement and seemed to recognize that she had no choice but to continue, having gone as far as she had in meeting with the authorities.

[384]        Mr. Rowe next spoke to Ms. D on October 30 and they arranged to meet later that day with the RCMP.  Mr. Rowe recalled being the first to arrive at the meeting, followed by Ms. D.  He spent 20 to 30 minutes with her before Cpl. Best arrived.  Mr. Rowe recalled spending a further 45 or so minutes with them before departing, leaving Ms. D and Cpl. Best to continue their discussion. 

[385]        Mr. Rowe’s only subsequent contact with Ms. D was on November 2, 1997 when he spoke with her on the telephone after receiving an accidental pager communication from her.

[386]        Mr. Rowe did not tape any of his meetings with Ms. D, though he testified that he took careful notes, writing down what she said verbatim or his best efforts at summarizing what she said.  From these notes he created a number of internal reports which were filed as exhibits at trial.  His handwritten notes from those meetings were destroyed as a matter of policy, with the exception of five pages of notes from their meeting on October 29, 1997.  Mr. Rowe testified that the vocabulary and phraseology in the reports were primarily his own and were not an attempt to capture the exact words spoken by Ms. D.  While stressing that he had not prepared his reports with the expectation they would be used in court and that he had at times been selective in what he had included in them, Mr. Rowe acknowledged that he had endeavoured to be as accurate as possible in summarizing and reporting what Ms. D had expressed to him.

[387]        Mr. Rowe was asked the following series of questions at the conclusion of his direct examination:

Q         During your conversations with [Ms. D], either on the phone or in person, did [Ms. D] ever say to you anything like this:  I have information on Malik and I want to give it to CSIS?

A          No, she did not.

Q         Did she ever say anything like this to you:  I have information on Malik and I want that information put to its maximum use?

A          No, she did not.

Q         Did she ever say to you that she had information on Malik and she wanted it used by the RCMP?

A          No, she did not.

Q         Did she ever say to you at your initial meetings with her that she was eager to give CSIS and the RCMP information on Malik?

A          No, she did not.

Q         Now, sir, when you were meeting with [Ms. D] was it your impression that she was -- one way to express it would be that she was out to get Mr. Malik?

A          Can you repeat the question.

Q         Yes.  When you were meeting with [Ms. D] was it your impression that she was out to get Mr. Malik?

A          No, that was not my impression.

2.         Cross-Examination

[388]        The cross-examination of Mr. Rowe focused on the following aspects of his interaction with Ms. D:

·         the first phone call and meeting at Starbucks;

·         the hotel meetings;

·         Ms. D’s motivations and the involvement of the RCMP; and

·         Ms. D’s first contact with the RCMP.

a.         The First Phone Call and the Meeting at Starbucks

[389]        Mr. Rowe confirmed the accuracy of his report that Ms. D had indicated to him in her initial phone message that she wished to pass on similar information to that which had been provided by the Sahotas.  He was cross-examined on the accuracy of the following passage contained in a report he authored after a number of meetings with Ms. D:

The source must be considered a “walk-in” and essentially has volunteered to provide information to the Service on an ongoing basis ... two secure meetings have taken place to date with the source indicating satisfaction with the arrangements and expressing a desire to continue.

[390]        Mr. Rowe adopted the report as accurate, though he repeated that he had not prepared it for use in court but to provide information to his superiors so that they could assess whether Ms. D should become an official source. 

[391]        Mr. Rowe was also questioned about his statement to Crown in November, 2001 on the issue of whether Ms. D had mentioned being threatened by Mr. Malik during their first meeting at Starbucks.  It was suggested to him that he had told Crown that Ms. D had indicated that she had been threatened by Balwant Bhandher and that he had no recollection of her saying anything at that point about being threatened by Mr. Malik or being accused of being a CSIS spy.  Mr. Rowe responded that he recalled very little of the Crown interview and had no recollection of the topics that had been discussed, though he acknowledged that he had attempted to be accurate during this interview. 

b.         The Hotel Meetings  

[392]        Mr. Rowe was interviewed by Cpl. Best in October, 1999.  During that interview, he indicated that Ms. D had provided him with a large amount of information about Mr. Malik and the organizations with which he was involved during the first of the hotel meetings on October 21, 1997.  She had also recounted some of her personal circumstances with Mr. Malik and indicated that she had had a falling out with him.  Mr. Rowe expressed the opinion that Ms. D was “in some respects anxious to get back at him”.  He further indicated that Ms. D felt “his [Mr. Malik’s] activities were, were nefarious if not criminal, if not a danger to Canada” and that she was “in every way eager to impart the information to me and the Service”.  Mr. Rowe told Cpl. Best that he and Ms. D had agreed to meet again to continue their discussion as she had provided so much detail that “it was impossible to get it all down at the first meeting”. 

[393]        Passages from this interview were put to Mr. Rowe and he adopted them as being accurately recorded.  When asked to confirm that what he had told Cpl. Best represented what he had been told by Ms. D at the time of their various meetings in October, 1997, Mr. Rowe replied, in effect, that the interview was accurate, though not exhaustive. 

[394]        Mr. Rowe’s reports contain a detailed narrative of the topics discussed by Ms. D, including the following with respect to Mr. Malik:

(i)                              he ran the Khalsa School as his personal fiefdom (Mr. Rowe’s words) and avoided holding elections for the board of directors in breach of the school’s Charter;

(ii)                            he appointed people he could dominate, such as those with limited intelligence, militant credentials or blood ties;

(iii)                           he engaged in financial or tax fraud through the use of the Satnam Trust;

(iv)                          he engaged in various forms of immigration fraud, including the issuance of fake credentials to people to qualify for visitor’s visas to Canada;

(v)                            with others, he sponsored visits by fundamentalist groups such as the AKJ;

(vi)                          he had the Khalsa School levy “Hidden Tuition Fees”, constituting fraud on the B.C. Ministry of Education;

(vii)                         he was directly involved in attempts to defraud the unemployment insurance program by manipulating the employment status of teachers at the school;

(viii)                       he imposed a system whereby staff were required to donate ten percent of their income back to the school without the benefit of a receipt or tax credit;

(ix)                          he permitted the kitchen of the temple to be used in an unsanitary manner, while the school cafeteria provided the students with junk food that they otherwise never got to eat;

(x)                            he misused government grants in relation to the construction of a licensed pre-school and the providing of ESL training;

(xi)                          he employed religious instructors who, for the most part, were in Canada illegally;

(xii)                         he ran a tour company which he used to smuggle money and valuable items into India;

(xiii)                       he had skimmed approximately $1,300,000 from the Khalsa School account at the Khalsa Credit Union;

(xiv)                       he was involved in welfare fraud in relation to his “under the table” employment of Mrs. Reyat at the school;

(xv)                        he held private meetings with members of militant groups in the school; and

(xvi)                       together with Balwant Bhandher, he provided funding and support for militant or terrorist activities, though acknowledging that much of this was based on information which was “hearsay and circumstantial”.

[395]        Mr. Rowe confirmed the accuracy of his reports with respect to the above, again adding that they had not been exhaustive or prepared for use in court.

c.         Ms. D’s Motivations and Involvement of the RCMP

[396]        Mr. Rowe recorded his impressions of Ms. D’s mindset and motivation to speak with him, as well as her understanding about the possible involvement of the RCMP.  In one of his reports, Mr. Rowe wrote, inter alia, as follows:

This source approached B.C. Region with information of considerable interest to the Service’s investigation of the Babbar Khalsa International but also with intimate details of substantial frauds and other criminal activity by Ripudamin Singh MALIK, formerly a target of the Service.  The source also indicated that she is victim of anonymous threats, which she believes to be at the behest of MALIK and is concerned for her safety.

The source expressed a desire to provide the information related to MALIK’s criminal activities in her possession to the authorities with jurisdiction; and requested the Service put her in contact with those authorities.

The source is very definitely motivated by a desire to “get back” at her antagonists within the Khalsa School.  She understands that this may involve future cooperation with the RCMP as it is apparent she has information respecting purely criminal activity, albeit, it relates to Section 12 concerns…

… the source lacks respect for Malik and resents his treatment of her fellow staff, who lack her resourcefulness and independence.  Consequently, the source has decided to fight back as a matter of conscience and principle.

[397]        Mr. Rowe acknowledged these passages to be accurate, though not necessarily exhaustive.

[398]        Mr. Rowe testified that he understood Ms. D’s primary motivation in approaching CSIS had been to seek protection because she felt at risk.  He was under the impression that she had already approached the RCMP over concerns about her safety and but had been sent away since she “didn’t give them enough”.  As a result, she would have understood that if she wanted protection from CSIS, “she had to ante up” and “pay the price of admission” by providing information.  Once Ms. D came to him, Mr. Rowe took it upon himself to gather as much information as possible from her in relation to his mandate.  He testified that Ms. D had no choice but to come to him with information since he otherwise would not have continued talking to her. 

[399]        The defence, however, pointed out to Mr. Rowe that, contrary to his evidence about his impression of her motivations, Ms. D’s initial call to him suggested that she wished to meet with him to provide information similar to what the Sahotas had provided.  While agreeing that Ms. D had stated that to be her purpose in her initial phone message, Mr. Rowe indicated that she had raised the issue of threats and concerns for her safety at the subsequent meetings.  Mr. Rowe also acknowledged that there were no references in any of his reports to Ms. D asking him to investigate why there were rumours in the community about her being a CSIS spy. 

[400]        Mr. Rowe was also questioned about the following passage in one of his reports:

The source is pragmatic enough and wise enough, however, to have learnt that MALIK is a powerful individual with resources and the possible motivation to harm her.  Consequently she has intelligently modified her initial intention to act as a “whistle-blower” in favour of a possibly more pragmatic and secure approach to fighting back.

[401]        Mr. Rowe testified that this was a reference to Ms. D’s original stated intention to file a harassment claim against Mr. Malik which would have taken their battle into the public domain.  This intention altered when it became obvious to Ms. D that it would be more efficient for her to continue some kind of relationship with Mr. Malik that might enhance her ability to continue reporting information to CSIS or the RCMP. 

d.         Ms. D’s First Contact with the RCMP

[402]        In his interview with Cpl. Best in October, 1999, Mr. Rowe described Ms. D’s attitude towards the RCMP at the time of their final private meeting on October 29, 1997 as follows:

At that point we had, we’d always been discussing and she had indicated that she wanted to proceed as far as she could in, in having the information involving Mr. MALIK put to the maximum use in terms of, of his potential for either exploitation by the police or, or you know in our case of Security Service, Intelligence Service.  We had already got to the point where she had agreed and that, that it seemed logical that the RCMP would be the best body to investigate most of her allegations since they were essentially criminal after I extracted section twelve stuff, so we would have talked about that…

[403]        In a report dated September 9, 1999, Mr. Rowe stated the following:

The potential handover to the RCMP was discussed in advance with [Ms. D] on multiple occasions and occurred with her full, informed consent.  BEST arrived at the secure site following my initial rendezvous with [Ms. D] and following introductions a joint information session was held focusing on the reasons for withdrawal of Service contact and the rationale for takeover by the RCMP.  Writer was present while BEST advised [Ms. D] that her information was needed for Court, which she consented to, and that if required the RCMP could offer her financial assistance and protection for self and family.  Writer departed, allowing the meeting to continue, having noted that [Ms. D] appeared to be totally at ease with BEST and her circumstances.

[404]        Once again, Mr. Rowe agreed that the above accurately summarized his meetings with Ms. D in relation to her transfer to the RCMP. 

I.          RCMP Evidence Regarding Ms. D

1.         Initial Dealings With Ms. D

[405]        Cpl. Best was the RCMP member with primary responsibility for Ms. D.  He was first contacted by Mr. Rowe with respect to her on October 28, 1997 and they arranged to meet a few days later on October 30. 

[406]        That meeting lasted approximately two-and-a-half hours.  Cpl. Best informed Ms. D that he was a member of the RCMP Air India Task Force, and he recalled a general conversation focused on Ms. D’s background and biographical information.  He did not recall Mr. Rowe leaving Ms. D alone with him at any time during the meeting.  At its conclusion, Cpl. Best provided Ms. D with his business card and contact numbers. 

[407]        On Saturday, November 1, 1997, Ms. D called Cpl. Best to report that she had received two harassing telephone calls from Mr. Malik advising her not to show up for work the following Monday as she was no longer required.  She added that she was not afraid and that Mr. Malik had no right to take such action against her.  Ms. D told Cpl. Best that her intention was to go to work as usual on Monday.  Cpl. Best agreed and told her to go unless he advised her differently.

[408]        Cpl. Best, S/Sgt. Schneider and Insp. Bass (S/Sgt. Schneider’s superior) met on Sunday morning and discussed the viability of Ms. D carrying a transmitting device when she went to work on Monday.

[409]        Ms. D, at the behest of Cpl. Best, came to the police station at 11:55 that morning and stayed for over two hours, during which time she provided an account of her association with Mr. Malik and her knowledge of his fraudulent business practices.  She also agreed to carry a transmitting device in her purse when she returned to the school.

[410]        Cpl. Best met with Ms. D at 7:30 a.m. on Monday, November 3 in a restaurant parking lot close to the Khalsa School.  He returned her purse outfitted with the transmitting device and instructed her on its use should she feel in imminent danger.  Ms. D then departed for the school at 7:44 a.m.  Cpl. Best’s notes indicated that Ms. D appeared “relaxed and in good spirits”.

[411]        At 8:12 a.m., Cpl. Best received a signal from Ms. D requesting immediate assistance.  Mr. Uppal and Balwant Bhandher were present when a team of seven police officers arrived at the school.  Ms. D informed Cpl. Best that Mr. Uppal had served her with a letter of termination.  She explained that Mr. Uppal and Balwant Bhandher had been following and intimidating her, and that she had feared she was going to be physically harmed when Balwant Bhandher had placed himself in very close proximity to her while she was speaking on the phone.  Ms. D also indicated that she wished to go back into the school. 

[412]        After updating S/Sgt. Schneider, Cpl. Best and he returned to the school to speak with Mr. Uppal.  Mr. Uppal identified himself as an executive member of the Satnam Education Society and informed them that Ms. D was no longer employed at the school.  He then asked Cpl. Best to remain in the school until Ms. D had departed.  Ms. D left the school premises at approximately 9:26.  Balwant Bhandher was arrested.

[413]        Cpl. Best and S/Sgt. Schneider met with Ms. D at their office later that morning, at which time she provided the first in a series of formal statements to the police.

2.         Information Provided by Ms. D – November, 1997 to April, 1998

[414]        Cpl. Best and S/Sgt. Schneider testified with respect to their contact with Ms. D and the information she provided between November, 1997 and April, 1998:


DATE

 

November 3, 1997

Two tape recorded statements.

November 5, 1997

One tape recorded statement.

November 6, 1997

In response to a conversation the previous day, Ms. D met with Cpl. Best at her residence and provided him with information regarding an individual in Toronto in an attempt to assist the police in identifying Mr. X.

November 7, 1997

One tape recorded statement; a series of pages from her personal journal provided to the RCMP.

November 10, 1997

A series of pages from her personal journal provided to the RCMP.

November 11, 1997

Cpl. Best received a page from Ms. D who told him that she was upset that Mr. Malik and his people were spreading rumours in the community about her being a CSIS spy. 

November 12, 1997

Ms. D advised that she had learned from Mrs. Cheema the previous day that Mr. Malik had been in somewhat of a panic to obtain a visa to visit India.

Later that day, Ms. D called Cpl. Best again to advise that she had visited Mrs. Reyat at her home and that Mrs. Reyat had told her that she was the subject of a welfare investigation.  She also reported that Mr. Reyat was concerned about his upcoming parole hearing and that she had been invited by Mrs. Reyat to visit her husband with her.

November 13, 1997

Ms. D consented to utilizing a one-party consent to obtain further information from Mr. Malik.

November 19, 1997

S/Sgt. Schneider attended Ms. D’s house to install a video camera during which time she informed him that Kim Bolan had a file on Mr. Malik, provided him with Ms. Bolan’s phone number, and provided information regarding Sukhminder Cheema and Kurdip Cheema.

November 20, 1997

Ms. D called S/Sgt. Schneider and told him that she had visited Mrs. Reyat the previous day and that they had a good talk and had joked about not telling the police anything.  She said that Mrs. Reyat was worried about being caught for collecting welfare and was thinking very seriously about coming on side with the police.

In a subsequent call that same day, Ms. D advised that the Satnam Education Society was not valid and that grants provided to the Khalsa School were illegal.  She stated that she was going to meet with Narinder Gill who she expected would provide her with information.  She repeated that Ms. Bolan had a good file on Mr. Malik and suggested that she might be able to provide some insight.

November 24, 1997

Ms. D reported another meeting with Mrs. Reyat and that Mrs. Reyat was ready to move forward. She also stated that Ms. Bolan would be at Mr. Reyat’s upcoming parole hearing.

November 26, 1997

Ms. D reported that Mr. Malik was having cash flow problems. She also stated that she had discussed Balwant Bhandher’s arrest with Mrs. Reyat, that Mr. Parmar had been in Vancouver for his daughter’s wedding sometime in 1991, that Balwant Bhandher had arranged a trip for Mr. Parmar while he was in Pakistan and that she and Mrs. Reyat were going to meet with Mr. Reyat in jail the following week.

December 1, 1997

Ms. D reported to Cpl. Best that she had not received any contact from Mrs. Reyat, which was unusual.  She also provided information about the individual who had provided a fraudulent passport and documentation to Mr. Parmar to allow him to attend his daughter’s wedding in 1991.

December 2, 1997

Ms. D reported to Cpl. Best that she had not heard from Mrs. Reyat despite having left messages for her the previous day.  She stated that she felt that Mrs. Reyat had been advised not to contact her.  In addition, she told Cpl. Best that the police might wish to speak with a close friend of hers who had been a close friend and associate of Mr. Parmar in the 1980s.

December 3, 1997

Ms. D advised that she had been in contact with Mrs. Reyat and that all was well.

December 5, 1997

Cpl. Best received a page from Ms. D asking him to call her on a secure line.  She then informed him that she had learned of the sexual abuse of a nine year old girl at the Khalsa School that had not been reported to the police.  She provided Cpl. Best with the name and contact number for the victim.

December 8, 1997

During a police visit to her house to test the alarm, Ms. D advised Cpl. Best that Mr. Uppal had been making statements to the effect that the police had once again failed to get Mr. Malik.

December 9, 1997

Ms. D called Cpl. Best and informed him that Mr. Malik had fired two people from the school for releasing confidential information regarding the school to the public.

December 12, 1997

Ms. D informed Cpl. Best of inquiries she had received from the media and that Ms. Bolan would be writing an article about the Khalsa School.

December 13, 1997

Ms. D called Cpl. Best and informed him that all the recent media attention had caused Mr. Malik to hold an emergency meeting at the school which was attended by Hardial Johal and Balwant Bhandher.  She also informed him that the Satnam Trust paid no taxes on its sales.

January 8, 1998

Ms. D called Cpl. Best and told him that she had been speaking with the RCMP Commercial Crime Section and the Ministry of Education, which was auditing the Khalsa School.  She also informed him that Narinder Gill had told her that the Ross Street Temple had purchased a share of a blueberry farm using proceeds from the Satnam Education Society.

January 21, 1998

Ms. D called Cpl. Best and relayed information concerning Air India she had learned from Mrs. Reyat on approximately December 5.

January 28, 1998

Cpl. Schneider received a telephone call from Ms. D in which she updated him about her civil case and told him that Ms. Bolan had a report coming out about the Khalsa School.  She also volunteered information about Bhai Jiwan Singh and said that he had affairs with women at the Golden Temple.

February 3, 1998

S/Sgt. Schneider called Ms. D to tell her that Mr. Malik’s lawyer was seeking access to the Information to Obtain with respect to the commercial crime warrants.  She responded by stating that she would so advise Narinder Gill, as well as Mr. and Mrs. Cheema.

February 10, 1998

Ms. D informed S/Sgt. Schneider that she had seen Hardial Johal carrying a black briefcase from the Khalsa School on December 13, 1997 and that he had been accompanied by Balwant Bhandher.  She suggested that the briefcase might contain cheques and receipts for 1997 and also alleged that Mr. Malik’s business phone bills were paid by the Satnam Education Society.

February 22, 1998

Cpl. Best received a page from Ms. D who told him about a meeting Mr. Malik had held earlier in the day.

March 7, 1998

Cpl. Best received a phone call from Ms. D who informed him of a number of matters, including Balwant Bhandher’s upcoming travel plans and the fact that Mr. Malik had lost his driver’s license.

March 9, 1998

Ms. D paged Cpl. Best to tell him that she had learned about an emergency meeting called by Mr. Malik that evening to be attended by Daljit Sandhu, Mr. Uppal, Hardial Johal, Balwant Bhandher and Gurdev Gill.

March 10, 1998

After earlier attending her house for fifty minutes to change the videotape in her security system, Cpl. Best then received a call from Ms. D indicating that she had been in contact with Hardial Johal.  Cpl. Best re-attended at her residence that afternoon and she reported that Hardial Johal had told her that he was prepared to talk to the police.  She told Cpl. Best that she believed he would speak about Mr. Malik and his involvement with the Khalsa School and Credit Union, as well as his involvement in the Air India explosion.

March 13, 1998

Ms. D informed Cpl. Best that Hardial Johal was upset that Mr. Malik and others were pointing the finger at him and that he had more to lose than Mr. Malik, whose wife owned a business and had money outside the country.

March 22, 1998

Ms. D paged Cpl. Best and informed him that Mr. Malik had held an emergency meeting at his home on Saturday evening and that Mr. Gill had observed a grey Mercedes parked in front of the house.

March 23, 1998

Cpl. Best attended Ms. D’s residence to change the security videotape.  She stated she had something she wished to tell him about Mr. Malik which she had not previously relayed.  She told him about seeing an article in the Awaaz newspaper which Mrs. Reyat had translated, after which she confronted Mr. Malik.  She told Cpl. Best that this incident had taken place in May 1997.

[415]        On April 2, 1998, Cpl. Best and S/Sgt. Schneider met with Ms. D at a restaurant.  S/Sgt. Schneider agreed in cross-examination that, consistent with his notes taken during that meeting, Ms. D had informed them that she had obtained the Awaaz article in January/February, 1997, was willing to go to court and had agreed to act as an agent for the RCMP to obtain further admissions from Mr. Malik and Hardial Johal.  Cpl. Best, on the other hand, testified that the RCMP had never considered using Ms. D as an agent to gather evidence for the Air India investigation.  He did not recall the specifics of the conversation and his only notes regarding this meeting were very brief and stated:

Proceeded to Earl’s Restaurant lunch/coffee.  S/Sgt. Schneider provided [Ms. D] with a general overview of our investigation to date.  Discussed her concerns vis-à-vis security.  Discussed [Ms. D’s] position as a Crown witness.

[416]        On April 27, 1998, Ms. D provided the RCMP with a detailed statement in which she provided a full account in chronological order of her discussions with Mr. Malik concerning the Air India explosion. 

J.         Telephone Calls Between Mr. Malik and Ms. D

[417]        Mr. Malik’s residential and business telephone lines had been intercepted by the RCMP between September, 1996 and mid-January, 1997.  Cpl. Dumont, a member of the Air India Task Force, testified that he was first asked by Cpl. Best in November, 1997 to review the intercept logs of Mr. Malik’s telephone calls to determine whether there had been any contact between him and Ms. D.  As a result of this review, Cpl. Dumont identified two telephone calls, one on October 9, 1996 and the other on October 26, 1996.  He did not review the preserved tapes of any of the calls. 

[418]        Prior to testifying, Cpl. Dumont again reviewed the logs in response to a disclosure request from the defence for all phone contact evidence between Mr. Malik and Ms. D.  Once again he concluded that there were two relevant phone calls.  Cpl. Best then listened to tapes of those calls and determined that only one of the calls was actually between Mr. Malik and Ms. D.  The other call was between Mr. Malik and a male with the same first name as Ms. D.

K.        The Evidence of Narinder Gill

[419]        Narinder Gill is a baptized Sikh from the Punjab.  He came to Canada in 1976, initially living in Calgary and then moving to Vancouver in 1989.  He was the Treasurer of the Satnam Education Society from 1992 to 1997.

[420]        Narinder Gill described his knowledge of and relationship with a number of individuals associated with this trial.  In particular, he testified that he had a good relationship with Balwant Bhandher, whom he had met while living in Calgary.  He also knew Mr. Parmar, whom he had met at a demonstration against the Indian Government in 1982 and Mr. Bagri, whom he had met at the Kamloops Temple that same year.  Narinder Gill also knew Bhai Jiwan Singh, a preacher with the Akhandkirtani Jatha (“AKJ”), whom he saw in Calgary many times.  He first met Mr. Malik in Seattle in 1985 and came to know him well over the years.

[421]        After moving to Vancouver, Narinder Gill began volunteering at the Khalsa School.  He testified that although a Board of Trustees was appointed to run the school, it was, in essence, Mr. Malik’s one-man show. 

[422]        Narinder Gill’s evidence touched upon a number of topics and overlapped, in part, with the evidence of Ms. D and Mr. B.  In summary, his evidence related to the following issues:

i)          the Calgary Meeting;

ii)         the Seattle Trip;

iii)         financial support of Mrs. Reyat;

iv)        the introduction of Mr. B to Ms. D;

v)         the relationship between Mr. Malik and Ms. D;

vi)        Ms. D’s firing and contact with the RCMP.

[423]        Narinder Gill testified that he had attended a meeting in Calgary at which the discussion had centered on how to protest the attack on the Golden Temple.  Approximately 15 to 20 people attended this meeting which had taken place after that 1984 attack and prior to June, 1985.  Among those in attendance were Mr. Parmar and Balwant Bhandher.  Neither Mr. Malik nor Mr. Bagri was present.  Narinder Gill testified that there had been discussion about boycotting Air India and Hindu enterprises, as well as the arming of Sikhs in Pakistan to fight a war.  He recalled one person saying they “should destroy planes with an air launcher”, to which Mr. Parmar responded, “Leave it to us, we have a plan”.

[424]        Narinder Gill testified about a driving trip he took from Calgary to Seattle in 1985 with Balwant Bhandher and his wife and three children to attend a three day religious ceremony.  In his direct evidence, Narinder Gill stated that the trip had lasted for ten days and that it had occurred at the “end of June and July”.  Six or seven days of the trip were spent at the Sikh temple in Seattle.  He did not recall whether this trip had taken place before or after June 23, 1985

[425]        Mr. and Mrs. Reyat, Parmjit Panesar, Mr. Bagri, Kewal Singh Nagra, Surjit Gill, Bhai Jiwan Singh and Mr. Malik had also been present in Seattle.  Narinder Gill testified that he did not attend a meeting among these people since he had been vacuuming the temple at the time.  He was also unable to provide any of the details of that meeting.

[426]        Narinder Gill was cross-examined about the length and timing of this trip to Seattle.  It became evident that he had been in Calgary on June 14, 1985 for the birth of a friend’s child and also on June 24, 1985 when he agreed that he had seen his doctor.  A letter from a physiotherapy clinic setting out the dates he had attended for treatment in 1985 was also admitted into evidence at trial as a business record.  While Narinder Gill did not confirm that he had attended on any of those dates, the letter indicated that he had attended appointments in June up until the 19th, as well as dates in July commencing on the 9th

[427]        Narinder Gill was also cross-examined about his statement in a Crown interview on July 9, 2003 that he had departed for Seattle 10 to 15 days after the birth of his friend’s child on June 14.  When asked by the Crown during that interview if it could have been less than ten days after the birth of the child, he responded, “I am not sure” and then, “maybe”.  However, under cross-examination, he provided two further versions.  He first stated that the trip could have commenced a few days after the child’s birth, and later indicated that it was possible that they had left on the same day as the birth. 

[428]        Narinder Gill testified that Mrs. Reyat had been living with her children rent-free above the Khalsa School in 1992.  Three of her children also attended the school without paying fees.  Mrs. Reyat worked at the pre-school but did not appear on the payroll.  She had been paid $1,100 monthly from the Satnam Trust in 1992, 1993 and 1994 by way of cheques made out to C. Kaur, P. Kaur and D. Singh, those being the first initials of three of the Reyat children.  Mr. Malik had explained to him that the cheques were not made out to Mrs. Reyat because she was on welfare.  In 1995, these payments shifted to cash on account of a welfare inquiry into Mrs. Reyat.  Payments continued to be made on the instructions of Mr. Malik or Mr. Uppal. 

[429]        Mr. Malik told Narinder Gill that he was supporting Mrs. Reyat because her husband had worked for the panth

[430]        Narinder Gill first met Mr. B in early 1998.  Mr. B was having financial difficulties and asked him if he knew of any lawyers.  Mr. Gill introduced him to Ms. D since she had a lawyer in her case against Mr. Malik.

[431]        Mr. B told Narinder Gill about a conversation he had once had with Mr. Malik in late 1998 or early 1999 during which Mr. Malik had asked him if he could take a suitcase somewhere, and had told him that he would pay him money and look after his family.  Narinder Gill did not recall where this conversation had occurred.  He denied ever telling Ms. D the information he had learned from Mr. B. 

[432]        Narinder Gill testified about the relationship between Mr. Malik and Ms. D from 1992 and early 1997.  He testified that Ms. D was a hard worker and did good work for the school.  Mr. Malik had good relations with Ms. D and would visit her when he came to the Khalsa School.  He also indicated that “previously he [Mr. Malik] trusted her a lot”.  However, Mr. Malik’s relationship with Ms. D deteriorated over her refusal to write a letter regarding Mrs. Reyat so that she could obtain welfare illegally.  Narinder Gill testified that in 1997 Mr. Malik had told him that he thought Ms. D was a CSIS agent and had been recording his conversations. 

[433]        Narinder Gill was not asked about the relationship between Mr. Malik and Ms. D subsequent to early 1997 and was not questioned about his dealings with her on the day of the Newspaper Confession. 

[434]        Narinder Gill testified that Mr. Malik came to see him in 1997 and told him that the trustees were going to fire Ms. D.  When he advised Mr. Malik not to fire her because they had a close relationship and “she could put [him] in trouble”, Mr. Malik responded that he did not want to but that Mr. Uppal and Balwant Bhandher did because she was a CSIS agent. 

[435]        Narinder Gill was contacted by the RCMP in November in relation to the firing of Ms. D.  He testified that they also wanted to speak about Air India.  He declined, but called Mr. Malik to relate the request.  Mr. Malik told him that he would come over and he did so.  They went for a drive in Narinder Gill’s car since Mr. Malik thought his own car might be “bugged”.  Mr. Malik told him not to speak to the police and that he could arrange for a lawyer for him.  He told him to tell the police to speak with the lawyer.  Mr. Gill testified that he responded, “I haven’t done anything criminal; I’m ready to talk”.

L.         The Evidence of Joginder Singh Gill

[436]        Joginder Singh Gill (“Joginder Gill”) immigrated to Canada in 1972 and settled in Nanaimo a number of years later. 

[437]        On June 4, 1985, he received a message from a Daya Minhas asking that he pick up two men from the B.C. Ferry terminal and drop them off at the Nanaimo bus station.  He did as requested.  One of the men was subsequently identified as Mr. Parmar; the other has never been identified and has been referred to as Mr. X. 

[438]        Once they began driving, Mr. Parmar asked Joginder Gill to take them to a residence in Duncan to which he provided directions.  At the request of Mr. Parmar, Joginder Gill went to the door to determine if anyone was home.  He was met by a young girl and then a woman he recognized as Mrs. Reyat.  After Mr. Parmar and Mr. X entered the house with their luggage, Joginder Gill left.

[439]        Joginder Gill also testified about a conversation he had with Mr. Parmar in the basement of Mr. Minhas’s home sometime after June, 1985.   With the radio left on to prevent police from overhearing the conversation,  Mr. Parmar asked Joginder Gill if he could change his story and say that he only picked up one person from the ferry terminal.  Joginder Gill refused, prompting Mr. Parmar to get angry and threaten to kill him. 

[440]        Joginder Gill testified that approximately one year after this incident with Mr. Parmar, he was invited to a meeting at the home of Karnail Singh Manhas.  He believed that this meeting had taken place prior to the time he had testified at Mr. Reyat’s manslaughter trial in September, 1990.  Joginder Gill arrived at the residence between 6:00 p.m. and 7:00 p.m. to find Karnail Manhas, Daya Minhas, Daljit Sandhu, Piara Singh, Kalbern Singh Parmar and Mr. Malik present. 

[441]        Joginder Gill testified that he had not met Mr. Malik prior to this occasion.  After being introduced to him, Mr. Malik asked him to change his evidence and say that he had only picked up one person at the ferry terminal and that the person had not been Mr. Parmar.  The conversation ended when Joginder Gill responded that he could not change his evidence.  He noted that Mr. Malik wore a metal symbol on his turban at the time of their conversation.  

[442]        Joginder Gill testified that he saw Mr. Malik once at the Nanaimo temple a few months later and possibly one other time in Vancouver.  He first identified Mr. Malik in a photo line-up conducted in January, 2000.

M.        The Evidence of Mr. Malik’s Financial Support of the Reyat Family

[443]        David Hooper (“Mr. Hooper”), a forensic accountant, testified about his forensic review of banking documents indicating approximately $51,000 in payments to Mrs. Reyat from Mr. Malik, the Satnam Education Society, Papillion Eastern Imports Ltd. (Mr. Malik’s business), and the Satnam Trust.  Other evidence revealed that many of the cheques deposited into Mrs. Reyat’s account were not made out in her name, often having been made out to what appeared to be her children. 

[444]        Mr. Hooper also testified about deposits totalling $65,000 to an account in the name of Piara Singh Panesar prior to May 13, 1994 (the “Panesar account”).  The majority of these deposits were made by cheques which could not be found.  Other evidence revealed that Mrs. Reyat had a power of attorney over the account and had conducted the majority of the account’s transactions. 

N.        Evidence of Association

[445]        The following evidence of telephone and in-person contact between alleged co-conspirators was led in relation to the case against Mr. Malik:

(i)                              one telephone call from Nanaimo to Papillion Eastern Imports Ltd., billed to Mr. Reyat’s home number on May 1, 1984;

(ii)                            long distance telephone contact between the residence of Mr. Malik and Mr. Bagri on February 3, 1985 and November 6, 1985;

(iii)                           CSIS surveillance that on May 21, 1985 a car bearing the personalized license plate “Papillion” was parked unoccupied in front of Mr. Parmar’s residence between 8:20 p.m. and 9:30 p.m. when surveillance was discontinued;

(iv)                          CSIS surveillance of Mr. Malik entering Mr. Parmar’s residence on June 18, 1985 at 7:29 p.m. followed shortly thereafter by Hardial Johal.  Mr. Parmar, Mr. Malik and Hardial Johal were observed sitting on the floor in Mr. Parmar’s residence engaged in a conversation until surveillance was discontinued at 9:50 p.m.;

(v)                            long distance telephone contact between the residences of Mr. Malik and Mr. Reyat on February 5, 1985, September 23, 1985, October 1, 1985, October 7, 1985 and November 4, 1985 (x2); and

(vi)                          long distance calls from Mr. Malik’s business telephone to Mr. Reyat’s residence on November 7, 1985 (x3).

O.        The Evidence of Mohinder Cudail

[446]        Mohinder Singh Cudail (“Mr. Cudail”), the father of Pritty Cudail, was called as a Crown witness.  He testified that his daughter’s suicide attempt had been the result of humiliation at the hands of a religious teacher at the Khalsa School.  The matter was brought to the attention of the School’s principal, without much response.  Mr. Malik, Narinder Gill and others later visited his daughter in hospital.  Narinder Gill and the vice-principal also visited her at home.  During these visits, it was acknowledged that what had been done by the religious teacher had been wrong.  Mr. Cudail agreed that Ms. D and Narinder Gill had been supportive during this time.  

[447]        Mr. Cudail testified that his family pursued the matter and that Mr. Malik apologized by phone and then provided a written apology on behalf of the religious teacher.  Mr. Cudail later reported the incident to the Surrey RCMP, the Ministry of Education and the media.

P.         The Evidence of Inderjit Singh Arora

[448]        Inderjit Singh Arora (“Mr. Arora”) was called as a witness by Mr. Malik. 

[449]        Mr. Arora came to Canada in 1994 and obtained employment at the Khalsa School teaching religious studies.  He was also responsible for managing the school’s bookstore. That bookstore, containing thousands of books relating to Sikh religion and history, was in disarray when he commenced employment and he spent hundreds of hours re-organizing it.  Mr. Arora had a close relationship with Ms. D and testified that she often came to visit him during the time that he was employed at the school. 

[450]        Sometime between January and June, 1995, Mr. Arora came across a copy of the book, Soft Target, on one of the shelves in the bookstore.  He flipped through it and put it aside on a table since it was not on his book list and should not have been in the bookstore. 

[451]        Three or four days later, Ms. D entered the bookstore.  While he was attending to a customer he saw Ms. D pick up the book and read it for approximately ten minutes.  She commented to him about an improper spelling of Mr. Malik’s name in the book, and then put it back on the table.  A few days later, Ms. D called Mr. Arora and asked if she could borrow the book.  Mr. Arora delivered it to her at the pre-school and never saw it again. 

[452]        Mr. Arora testified that he first mentioned this information regarding Soft Target approximately two months before he testified.  He explained that, during a meeting with Mr. Malik’s lawyers, he was asked whether he had ever discussed any articles about Air India with Ms. D and, in response, related this incident. 

Q.        Mindy Bhandher’s Whereabouts in Spring, 1997

[453]        Mindy Bhandher was called as a witness by Mr. Malik to testify with respect his whereabouts in the spring of 1997.  Prior to the commencement of his evidence, Mr. Malik’s counsel candidly admitted that they would not seek to have the Court rely on his testimony in the absence of corroborating evidence.  That corroborating evidence took the form of various documents and the viva voce evidence of a number of non-contentious witnesses.

[454]        Mindy Bhandher is the son of Balwant Bhandher.  He had a close relationship with Mr. and Mrs. Malik, whom he first met at the age of eight or nine when his family moved to Vancouver

[455]        Mindy Bhandher was questioned about the conversation Ms. D testified to overhearing between him and Mr. Malik with respect to the Anashka incident involving Mr. Narwal’s son.  He denied ever having such a conversation with either Mr. Malik or Mr. Narwal’s son, whom he claimed to have befriended only in 2001.  In addition, he testified that he was not even in Canada in the spring of 1997, having left for India in the last week of February and returning in the first week of July.  A number of travel and other documents, as well as witnesses who were with him in India during this period, corroborated his evidence with respect to his whereabouts in the spring of 1997. 

[456]        As the Crown now properly concedes that the evidence establishes that Mindy Bhandher was in India during this time period, no further discussion of that issue is required.

R.        The Evidence of Daljit Sandhu

[457]        Daljit Sandhu, a baptized Sikh, was called by Mr. Malik as a witness.  He has been active in the Sikh community since the 1970s, acting as the General Secretary of the Ross Street Temple in 1979-1980 and as its President in 1982, 1987 and 1988.  He was also a founding member of the Sikh Sewak Society, the World Sikh Organization and the Khalsa School.

[458]        Daljit Sandhu testified that he first met Mr. Malik in the early 1980s when he was setting up the Khalsa Credit Union and the Khalsa School.  He also knew Mr. Malik from the Ross Street Temple where Mr. Malik sold religious items on Sundays.  He testified that he attended religious functions at Mr. Malik’s home once or twice a year in the 1980s but that they did not have a social relationship. 

[459]        Daljit Sandhu testified that he knew of Mr. Parmar as someone who did religious work in the community, once going to his residence in the early 1980s to act as an interpreter.  He also assisted Mr. Parmar retain counsel when he was arrested in 1985, considering it his duty to assist community members in difficulty.

[460]        Daljit Sandhu testified that his wife was a distant relative of Mrs. Bagri and that they were acquaintances.  He also had some direct contact with Mr. Bagri, as he supervised the construction of Ms. E’s house in 1985.  He met Mr. Reyat during his baptism and on some few other occasions.  

[461]        Daljit Sandhu vehemently denied any involvement in the Air India conspiracy.  Specifically, he denied taking part in the purchase and pick up of the airline tickets at Mr. Malik’s behest or that he ever wore a ring, let alone a “fancy” ring as described by Ms. D.  To that end, he produced a number of photographs showing his ringless hands in the mid-1980s. 

[462]        Daljit Sandhu was cross-examined about his personal opinion of Mr. Reyat.  He testified that prior to Mr. Reyat’s conviction he had considered him to be a good Sikh, but that he now knew him to be a criminal.  The Crown then played a video excerpt of an interview Daljit Sandhu had given following Mr. Reyat’s conviction in 1991 in which he stated that he had known him for over 15 years and that “a person like that won’t do that sort of thing and I still believe he’s innocent”.  Daljit Sandhu explained this statement by reference to the expectations on him as a community leader at the time to make such comments.

[463]        He was also cross-examined about his attitudes towards violence and the assassination of Indira Gandhi.  Daljit Sandhu denied ever belonging to an organization that promoted violence and testified that he did not think that the assassination of Indira Gandhi had been justified.  He also denied advocating her killing in revenge for the attack on the Golden Temple or making any public comments approving of the killing, though he did acknowledge that he may have used some “harsh words” about her around the time of the Golden Temple attack.  The Crown played another video excerpt, this one from January, 1989, in which Daljit Sandhu congratulated the families of Indira Gandhi’s assassins and stated that “she deserved that and she invited that and that’s why she got it”. He explained that his comments in the excerpt did not reflect his personal views, but rather, those of all Sikhs living around the world.

[464]        Daljit Sandhu additionally testified about the meeting at Mr. Manhas’s residence described by Joginder Gill, explaining that its purpose had been to gather support for the Khalsa Credit Union and Khalsa School.  He believed that the meeting had taken place in late 1985 or early 1986, during which time Mr. Malik had been in the process of setting up those organizations.  He denied that he had traveled with the others to Vancouver Island with the intention of intimidating Joginder Gill.  He also testified that he had not overheard any conversation between Mr. Malik and Joginder Gill about changing evidence. 

S.         The Evidence of Satwant Sandhu

[465]        Satwant Sandhu was called as a witness by Mr. Malik.  A baptized Sikh, he came to Canada in 1972 after training in electronics and television servicing in India.  He was employed in Canada in various capacities within those fields and for a time operated an audio and video home entertainment store on Main Street in Vancouver.  He also went into the construction business with a relative beginning in the mid-1980s.    

[466]        Satwant Sandhu first met Mr. Malik at his Main Street store in 1978 or 1979.  He also saw him at the Ross Street Temple and was later involved with the start up of the Khalsa Credit Union and the construction of the Khalsa School.  He became a trustee of the school in 1993 or 1994.

[467]        Satwant Sandhu met Mr. Reyat in 1980 or 1981, when he attended his home for prayers following a religious camp in Victoria.  He next met Mr. Reyat at the Abbotsford jail while visiting a number of Sikhs in custody as part of a religious mission.  He did not speak with Mr. Reyat on that occasion.

[468]        Satwant Sandhu met Mr. Parmar in the late 1970s at his store.  Following his baptism in 1979, he occasionally attended religious gatherings at Mr. Parmar’s home.  Mr. Parmar also came to his home three or four times a year for similar functions.  In the late 1980s, Mr. Parmar hired him for some construction work, but he was forced to leave the job as his workers did not want to work for Mr. Parmar. 

[469]        Satwant Sandhu met Ms. D through his work with the Satnam Education Society.  He saw her at monthly meetings and was once sent by the Board to speak to her about her interaction with the grade school, telling her that she should focus her attention on the pre-school. 

[470]        Satwant Sandhu denied that he had been involved in the Air India conspiracy as described in Ms. D’s account of the Newspaper Confession.  Specifically, he denied the proposition that Mr. Malik had asked him to assist Mr. Reyat in making a bomb or that he had travelled to Duncan for that purpose. 

[471]        Satwant Sandhu, in cross-examination, agreed that by 1985 he had had thirteen years of experience in electronics, mostly in the area of servicing televisions, radios and VCRs.  He denied telling the RCMP in a 1985 statement that he had the ability to build a timer to set off a bomb, claiming that he had only been referring to his ability to build a timer and had no experience building bombs. 

[472]        Satwant Sandhu was also cross-examined about his relationship with Mr. Parmar and, in particular, his attempts to minimize their association during police interviews in 1985.  He was questioned, for example, about a December, 1985 statement wherein he had indicated that he had not had any “dealings” with Mr. Parmar the previous year.  A telephone call between he and Mr. Parmar in which the latter had asked whether he knew of someone who could check his home for listening devices was put to him.  Satwant Sandhu explained that he had not considered such “casual talk” to be “dealings” and that his answer had been truthful.

[473]        Satwant Sandhu acknowledged that Mr. Parmar had once lent him money for an airline ticket to visit his sick father in India, which he later repaid.  He also denied any knowledge of Mr. Parmar’s involvement in the Air India/Narita explosions and disagreed with a number of suggestions put to him regarding other interaction with Mr. Parmar. 

[474]        Satwant Sandhu acknowledged that Mr. Malik had assisted him financially on a number of occasions, but stated that he did not owe Mr. Malik any money and had no interest in any of his properties.  He also acknowledged that he had visited Mr. Malik in jail a number of times in his capacity as a member of the clergy and had spoken to him on the telephone on a number of occasions as well.

T.         Defence Evidence Regarding the Seattle Meeting

[475]        Mr. Malik filed documents and called evidence to refute the suggestion that the Seattle trip had taken place prior to the Air India explosion, as Ms. D testified she had been informed by Mr. Malik.  This evidence consisted of the following:

(i)                              Registration of Live Birth for Harmanjit Sandhu confirming that the child was born on June 14, 1985;

(ii)                            medical report of Dr. Kholsa signed and dated by Narinder Gill on June 24, 1985;

(iii)                           Temple Physiotherapy Clinic Records indicating that Narinder Gill attended for physiotherapy for a number of dates in June and July of 1985;

(iv)                          Alberta Medical Report of Balwant Bhandher signed and dated by Dr. Sidhu on June 21, 1985 in Calgary.  Dr. Sidhu testified that he routinely filled out these forms immediately after conducting the medical examination while the patient was still in his office;

(v)                            school records for Onkar and Raminder Bhandher showing that they only missed one school day during the last session in 1985;

(vi)                          Calgary School Board minutes indicating that the Calgary Board of Education had recommended that the 1985 school year end on June 28; and

(vii)                         the testimony of John Wilson, Record System Analyst with the Calgary Board of Education, who testified about the retrieval and interpretation of the various school records.

VII.       SUBMISSIONS OF THE PARTIES REGARDING MR. MALIK

A.         Motive

1.         Position of Mr. Malik

[476]        Offences of the magnitude alleged here can only be understood through the prism of the motives of those who perpetrated them.  Mr. Malik submits that the Crown has not established such a motive for him to have participated in the alleged offences.  While accepting that the Crown is not legally obligated to prove motive, Mr. Malik submits that its failure to do so in a case of this nature is significant.

[477]        Mr. Malik submits that it is inconceivable that anyone would have participated in the Air India conspiracy without strong political motives.  There is evidence that a wide range of Sikhs, including a number of Crown witnesses, were motivated by anti-Indian Government and pro-Khalistan sentiments.  Mr. Parmar and Mr. Reyat also appear to have been motivated by these ideals.  However, the only evidence that Mr. Malik held such views came from the very witnesses who implicated him in the conspiracy, namely, Ms. D, Mr. B and Mr. A.  Mr. Malik vigorously challenges the credibility of these witnesses, and submits that they all simply attributed the “obvious” motive to him when testifying. 

[478]        Twenty years of police investigation has not revealed any independent evidence that Mr. Malik advocated revenge against the Government of India, believed in Khalistan or was a member of any political organization promoting those views.  Further, none of the witnesses who attended any of the meetings held by Mr. Parmar in 1984 or 1985 testified that Mr. Malik was ever in attendance.  To the contrary, Mr. Malik does not appear to have even supported more peaceful forms of protest, such as the boycotting of Indian state institutions, as there is evidence that he continued to do business with the State Bank of India until at least May, 1988 when a two million dollar demand debenture held by his business with the bank was discharged.

2.         Position of the Crown

[479]        The Crown submits that it has established a powerful and persuasive motive for Mr. Malik’s participation in the alleged conspiracy.  Juxtaposing the evidence of Dr. Wallace with statements attributed to Mr. Malik by Mr. A, Mr. B and Ms. D, the Crown submits that Mr. Malik was motivated by a desire to exact revenge against the Government of India for its attack on the Golden Temple, and to create an independent Sikh state of Khalistan.

B.        Evidence of Association

1.         Position of Mr. Malik

[480]        Mr. Malik submits that the association evidence in this case is of limited probative value given the unique character of the Sikh community in 1985 and his prominent position within it. 

[481]        The community of baptized Sikhs living in the Lower Mainland in the 1980s was estimated by a number of witnesses to be approximately 200 people.  The evidence suggests that Sikhs tended to be active in their community, with their temples, in particular the Ross Street Temple, playing an important role in their social and religious lives.  Sikhs regularly hosted religious programs in their homes and invited others to participate.  The community also placed considerable emphasis on charitable donations and concern for the welfare of others, rallying around members in need. 

[482]        Mr. Malik was well-known in the Sikh community by the 1980s.  The Satnam Trust had been established by 1980 and he had worked through the early to mid-1980s to establish the Khalsa Credit Union.  Through these activities, Mr. Malik came into contact with many religious institutions and individual Sikhs throughout North America.  He accordingly submits that there are many legitimate reasons why he may have had contact with individuals such as Mr. Parmar, Mr. Reyat and Mr. Bagri, and that a complete absence of any communication would have been surprising in the circumstances.

[483]        Despite current assessments of Mr. Parmar as being a “dangerous political fanatic”, Mr. Malik submits that the picture of him may have been quite different in the mid-1980s.  Mr. Parmar worked in the community and was a Sikh priest who conducted religious ceremonies, including baptisms.  He was an active public speaker and was viewed by some as a community leader.  Many Crown witnesses attended Mr. Parmar’s meetings and speeches, and there is no apparent reason why anyone would have avoided associating with him in the mid-1980s.

[484]        While not as well known as Mr. Malik and Mr. Parmar, Mr. Reyat was also very active in the Vancouver Island Sikh community, playing drums at religious ceremonies and performing baptisms.

[485]        Mr. Malik submits that any post-June 24, 1985 contact relied upon by the Crown is not relevant since it falls outside the time frame of the alleged conspiracy.  There is very little contact between him and the alleged co-conspirators in the period before that date, such that the evidence simply does not support the Crown’s theory of a conspiracy between he, Mr. Bagri, Mr. Parmar or Mr. Reyat. 

[486]        Mr. Malik submits that the only association evidence of any interest is that of the meeting at Mr. Parmar’s residence on June 18, 1985 involving him, Mr. Parmar and Hardial Johal.  He submits that the Crown’s sinister characterization of this meeting due to its proximity to the booking of the plane tickets ignores relevant context which suggests it is also consistent with his innocence.  For example, the evidence indicates that Mr. Parmar was in constant telephone and in-person contact with others in the days leading up to June 19 when the ticket bookings were made.  Mr. Parmar also appeared to have been surveillance conscious in that he was often observed making calls from payphones and meeting with people outside his home.  This renders it highly unlikely that there would have been a discussion about the Air India bombing in Mr. Parmar’s living room. 

[487]        Mr. Malik also points to Hardial Johal’s Pocket Pal entry for June 18, 1985, which reads:

Talked to the lawyer on the phone regarding the Indo-Cana[sic] Times case.  In the evening there was a meeting about the Indo-Canadian paper at Sardar Talwinder Singh’s house, Malik and others came.

[488]        Mr. Malik submits that this journal entry is reliable evidence with respect to the purpose of the June 18 meeting and is consistent with a defamation action in which he, Mr. Parmar, Hardial Johal, Surjan Gill and Gurcharan Rampuri were plaintiffs against Mr. Hayer, the Indo-Canadian Times and others.  Copies of the pleadings in the related actions indicate that the first statement of claim was actually filed by Mr. Rampuri on June 18, 1985, a factor Mr. Malik submits enhances the reliability of the entry in the Pocket Pal.

[489]        Mr. Malik points to a number of other entries in the Pocket Pal which also reference this litigation and indicate that Mr. Johal was actively pursuing it in communication with the other plaintiffs.  Additional factors enhancing the reliability of the Pocket Pal include the fact that it was written retrospectively as a record, a number of entries post-June 22, 1985 can be corroborated by reference to RCMP surveillance of Hardial Johal, and certain entries are unlikely to have been included had the journal been created for a self-serving purpose as submitted by the Crown. 

[490]        Mr. Malik submits that the Crown’s submissions regarding the telephone contact between Mr. Malik’s residence and business and Mr. Reyat’s residence in November, 1985 are entirely speculative and that there is no basis for the inferences it seeks.  Most of the calls were a minute or two in duration and insubstantial. 

2.         Position of the Crown

[491]        The Crown relies on the following evidence of association in relation to the case against Mr. Malik:

(vii)                         one telephone call from Nanaimo to Papillion Eastern Imports Ltd., billed to Mr. Reyat’s home number on May 1, 1984;

(viii)                       long distance telephone contact between the residences of Mr. Malik and Mr. Bagri on February 3, 1985 and November 6, 1985;

(ix)                          evidence from Mr. A that Mr. Malik told him that Mr. Parmar had asked him to approach Mr. A about taking an attaché case containing a bomb on a plane;

(x)                            CSIS surveillance that on May 21, 1985 a car bearing the personalized license plate “Papillion” was parked unoccupied in front of Mr. Parmar’s residence between 8:20 p.m. and 9:30 p.m. when surveillance was discontinued;

(xi)                          CSIS surveillance of Mr. Malik entering Mr. Parmar’s residence on June 18, 1985 at 7:29 p.m. followed shortly thereafter by Mr. Johal.  Mr. Parmar, Mr. Malik and Mr. Johal were observed sitting on the floor in Mr. Parmar’s house engaged in a conversation until surveillance was discontinued at 9:50 p.m.;

(xii)                         the evidence of Joginder Gill that both Mr. Parmar and later Mr. Malik tried to get him to change his evidence regarding his role in picking up people at the ferry terminal on June 4, 1985;

(xiii)                       the evidence of Narinder Gill that Mr. Malik told him that he had good relations with Mr. Parmar;

(xiv)                       long distance telephone contact between the residences of Mr. Malik and Mr. Reyat on February 5, 1985, September 23, 1985, October 1, 1985, October 7, 1985 and November 4, 1985 (x2); and

(xv)                        long distance telephone contact calls from Mr. Malik’s business telephone to Mr. Reyat’s residence on November 7, 1985 (x3).

[492]        The Crown acknowledges that there is very little evidence of contact between Mr. Malik and Mr. Bagri.  It submits that Mr. A’s testimony provides strong evidence of association between Mr. Malik and Mr. Parmar in the “early planning stages of the bombings” and that their association was directly related to the Air India bombings. 

[493]        The Crown suggests that the June 18, 1985 meeting at Mr. Parmar’s residence was related to the conspiracy.  Noting that it took place the day before the airline ticket reservations were made, it submits that it is unlikely that it related to the defamation litigation as submitted by Mr. Malik.  The Crown also submits that Hardial Johal’s Pocket Pal entry stating otherwise is not reliable for a number of reasons.  It was inaccurate, contained a number of notable omissions, and was likely created by Hardial Johal as a false exculpatory record of his activities.  In any event, discussion of the defamation litigation at the June 18 meeting would not have precluded discussion of other topics. 

[494]        There were four telephone contacts between Mr. Reyat and Mr. Malik between November 4 and 7, 1985, within a few days of Mr. Reyat and Mr. Parmar being charged with offences in relation to the June 4 test blast.  The Crown submits that the Court should infer that those charges were the topic of their discussions on those dates. 

C.        Attempts to Recruit Individuals to Deliver Bombs

1.         Position of Mr. Malik

a.         Jagdev Dhillon

[495]        Mr. Malik submits that the Crown submission that he had been “testing the waters” with his comments in Mr. Dhillon’s presence is illogical and amounts to rank conjecture.  Those remarks had not been made privately to Mr. Dhillon but to a group of people in the kitchen.  Mr. Dhillon and Mr. Malik had been friends for over 10 years and it defies common sense to suggest that Mr. Malik would have attempted to recruit him in a room full of potential witnesses. 

b.         Mr. A

[496]        Mr. Malik submits that Mr. A’s evidence was both impossible and implausible.  

[497]        The evidence is overwhelming that Mr. Malik did not operate a stall outside the Ross Street Temple in 1984, and that the location testified to by Mr. A as being where their conversation took place was a twelve foot ravine at the time.  A number of witnesses called by both the Crown and the defence testified that Mr. Malik’s stall had been located in the dining hall in the basement of the Temple prior to the completion of renovations in 1986.  Furthermore, the Crown was not able to call a single witness from the congregation of approximately 6,000 Sikhs who attended the Ross Street Temple in 1984 to corroborate Mr. A’s account. 

[498]        Mr. Malik further submits that the very nature of the story recounted by Mr. A was also implausible:

(i)                              Mr. Malik had never spoken with Mr. A prior to this encounter;

(ii)                            Mr. A had only spoken to Mr. Parmar on one occasion;

(iii)                           Mr. A had not spoken out at any of the meetings he attended;

(iv)                          neither Mr. Malik nor Mr. Parmar would have had any reason to believe that Mr. A would be willing to deliver bombs to the airport for the purpose of killing innocent civilians, and they would have had no reason to trust him;

(v)                            Mr. Malik had not suggested that the conversation be in private;

(vi)                          there had been no lead up or preliminary conversation prior to Mr. Malik asking Mr. A to deliver an attaché case containing a bomb to the airport;

(vii)                         there had been no discussion regarding Mr. A’s political views or attitude towards the Indian Government; and

(viii)                       the involvement of Mr. A in an integral part of the conspiracy would have entailed entrusting a stranger with knowledge of the plot, as well as carriage of a key step to be completed in relation to its ultimate objectives.

[499]        Mr. Malik submits that the cross-examination of Mr. A did not offend the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), as it had been perfectly clear throughout that his credibility with respect to his encounter with Mr. Malik was directly at issue.  Mr. A was entrenched in his position concerning the location of the stall and was provided with a fair and proper opportunity to demonstrate its location on the photographs that were presented to him.  The Crown’s new theory regarding the location of the stall, raised for the first time during closing argument, does not accord with Mr. A’s testimony and was not put to any of the witnesses who gave evidence on the issue of the stall’s location. 

[500]        Mr. Malik submits that Mr. A was not able to adequately explain the fact that he had never mentioned his encounter with Mr. Malik to anyone in 19 years, not even to his wife when she told him about Mr. B’s evidence in these proceedings.  Mr. A’s evidence was remarkably similar to that of Mr. B, who had testified two months prior to Mr. A’s first disclosure to the police.  Mr. Malik also submits that Mr. A was not a trustworthy witness as he had been dishonest with the Court regarding his financial circumstances and his past involvement with the Akali Singh Sikh Society. 

c.         Mr. B

[501]        Mr. Malik submits that the evidence of Mr. B was neither credible nor reliable.  In particular, the circumstances surrounding Mr. B’s disclosure of his allegations give rise to a strong inference that he was motivated by vengeance or financial gain, not altruism.  His testimony was rife with material inconsistencies, his memory was unreliable and it was demonstrated that he had misled the Trustee in Bankruptcy under oath on a number of matters to protect his financial interests.  

[502]        Mr. Malik submits that Mr. B’s explanation for delaying the disclosure of his conversations with Mr. Malik for 12 years was neither reasonable nor corroborated.  Moreover, he had no credible explanation for his further four year delay in disclosing the two critical telephone conversations on the night of the Air India explosion. 

[503]        Mr. Malik submits that, whether factually accurate or not, the following factors reflecting Mr. B’s state of mind at the time he first contacted the RCMP are relevant to a consideration of his credibility:

·         Mr. Malik had cheated him when he convinced Mr. B to sign a $75,000 voucher to secure the loans Mr. Malik had guaranteed for his family without giving Mr. B any money;

·         Mr. Malik had tricked him into placing a $75,000 mortgage on his farm for no consideration when it was transferred back to Mr. B's name in December 1990;

·         Mr. Malik had cheated him again when he fraudulently altered the interest rate from prime plus 2.6% to 26.8% when the mortgage was registered against his farm;

·         Mr. Malik had unfairly sued him when he was unable to make payments on the mortgage, forcing him to go to the expense of retaining counsel;

·         Mr. Malik had sabotaged his legal action with lies, causing his lawyer to withdraw.  Mr. Malik had then told subsequent lawyers that he would not be able to pay their fees;

·         Mr. Malik had claimed $284,000 against the proceeds of the sale of his farm when nothing was owed; and

·         Mr. Malik had tricked him yet again by convincing him to drop his objection to Mr. Malik's claim against his farm and then reneging on his agreement to pay Mr. B $161,000 out of those proceeds.

[504]        This motive to fabricate, Mr. Malik submits, continued to the time he testified.  Mr. B’s lawsuit against Mr. Malik, commenced in 2000 and alleging that Mr. Malik owed him approximately $700,000, is still pending.  When considered together with the timing of his disclosure to the police, immediately subsequent to his threat to Mr. Malik, Mr. B’s evidence that he was motivated by his conscience is clearly not believable.  

[505]        Mr. Malik also submits that Mr. B’s explanation that Surjan Gill had told him to reveal his secrets does not have the ring of truth, considering that he had not revealed any of the details of the secret to Surjan Gill, who was not called as a corroborating witness. 

[506]        With respect to the additional four year delay in disclosing the threatening phone calls, Mr. Malik submits that beyond the internal inconsistency of Mr. B’s explanation (memory problems or fear), his assertion that he had been afraid to tell the police defies logic since he had already provided them with incriminating evidence against Mr. Malik in relation to the Air India investigation.  Mr. B never explained what had changed during those intervening four years to allow him to overcome that fear.

[507]        Mr. Malik further notes that Mr. B’s disclosure to the police came one week after the March, 1997 Awaaz article describing the one million dollar reward.  While Mr. B denied having read this particular article, he also testified that he had read an article mentioning the reward in 1995.  Mr. Malik submits that it is unlikely that he would have seen only one article about the Air India explosion given the immense interest the incident had generated in the Sikh community and the extensive coverage it had received.

[508]        Mr. Malik submits that there were a number of other areas of Mr. B’s testimony that undermine his credibility:

·         Mr. B’s willingness to lie under oath Mr. Malik focussed on a number of discrepancies between Mr. B’s true financial situation and information to which he swore during bankruptcy proceedings in 1991.  For example, he acknowledged having falsely swore that he had made no gifts to relatives over $500 within the previous five years, when, in fact, he had transferred his $100,000 half interest in his property to his son.

·         Internal inconsistencies in Mr. B’s evidenceThere were numerous material internal inconsistencies in Mr. B’s testimony regarding his alleged conversation with Mr. Malik in 1985.  As one example, he provided different accounts as to how he first approached Mr. Malik for financial assistance at that time.  He testified in his direct evidence that he had met Mr. Malik at the Ross Street Temple and had arranged to meet him the following day at his office. Mr. B was then confronted with his April 23, 1987 and May 5, 1997 police statements in which he apparently told the police that he had contacted Mr. Malik by telephone to arrange a meeting.  Mr. B initially denied having told the police that he had called Mr. Malik and suggested that there must have been an error.  After being shown a video of one of these interviews, however, Mr. B conceded that he had told the police that he had phoned Mr. Malik.

Mr. B’s evidence regarding whether he had ever asked Mr. Malik what the suitcase was going to contain was also inconsistent.  He testified in his direct examination that he had not asked.  In cross-examination he initially testified that he had asked but then reverted back to his earlier position that he had not.  Mr. B was then referred to his May 5, 1997 police interview wherein he had stated that he had asked Mr. Malik what was in the suitcase.  When confronted with this inconsistency, he denied that either response was a mistake and indicated that they were both correct.  Mr. Malik submits that such exchanges demonstrate an unwillingness on the part of Mr. B to make even reasonable concessions.

·         External inconsistencies in Mr. B’s evidence -– Mr. Malik submits that Mr. B’s testimony was contradicted by other witnesses called by the Crown.  One example in this regard was his evidence that he had never mentioned the suitcase conversation to either Narinder Gill or Ms. D, consistent with an unsuccessful attempt to bolster his credibility by denying any possibility of collusion with other Crown witnesses.

The testimony of Mr. B and Ms. D also conflicted in relation to a number of details regarding their initial contact and their interaction on the day they attended her lawyer’s office together.

·         Demeanour and reliability issuesMr. Malik submits that Mr. B’s testimony was evasive and his memory selective.  He testified, for example, that he had initially told the RCMP about the two telephone calls he had received on the evening of the Air India explosion in March or April, 1997 when, in fact, he had not done so until March, 2001.  

When questioned about a prior statement to Crown counsel regarding his interaction with Narinder Gill, Mr. B claimed not to recall any of that interview.  He was also unable to recall significant details about his financial situation and his bankruptcy proceedings.

·         Implausibility of Mr. B’s testimony –- Mr. Malik submits that some of Mr. B’s evidence is simply implausible.  As one example, Mr. B testified that he continued to have significant dealings with Mr. Malik after the Air India explosion, including his being a founding member of the Khalsa Credit Union and Khalsa School.  It defies logic, however, that Mr. B would have continued to deal with Mr. Malik both socially and in business had Mr. Malik actually asked him to participate in a scheme that would have resulted in his death in the Air India explosion. 

The defence also submits that it is unlikely that Mr. Malik would have attempted to cheat Mr. B out of large sums of money knowing that Mr. B could implicate him in the largest mass murder in Canadian history. 

[509]        Mr. Malik submits that the Crown theory that he had a dual motive in recruiting Mr. B to carry the bomb (finding someone to assist in the plot and ridding himself of Mr. B and his litigation) is wholly unsupported by the evidence.  There simply was no financial dispute or litigation between Mr. B and Mr. Malik in 1985; those issues did not arise until the 1990s. 

2.         Position of the Crown

a.         Jagdev Dhillon

[510]        The Crown submits that Mr. Malik was “testing the waters” in saying, “they say to crash the planes” in Mr. Dhillon’s presence.  Mr. Malik made this comment to assess Mr. Dhillon’s response.  It submits that had he expressed sympathy for this proposition, Mr. Malik may have taken further steps to recruit him. 

b.         Mr. A

[511]        The Crown submits that Mr. A’s evidence about his encounter with Mr. Malik in 1984 was compelling, remarkably uncomplicated and directly implicated Mr. Malik.  That encounter constituted a further attempt by Mr. Malik to recruit someone for delivery of the bombs, and corroborates the evidence of Mr. B. 

[512]        The Crown submits that Mr. Malik failed to properly cross-examine Mr. A and that, therefore, the Court should place little weight on his submissions in relation to this witness.  Mr. Malik had a duty, it submits, to challenge Mr. A directly on the issue of whether the alleged conversation in fact took place, rather than on the impossibility of the location of that alleged conversation.

[513]        With respect to that latter issue, the Crown suggests that Mr. A may not have been given a proper opportunity to identify the location of Mr. Malik’s stall.  In that regard, the Crown submits that there was ample room to set up a stall on the plaza in front of the Temple’s parking lot or on the pathway running to the west of that plaza. 

c.         Mr. B

[514]        The Crown urges the Court to accept Mr. B’s evidence regarding his conversation with Mr. Malik, the timing of which is supported by court records regarding Mr. B’s financial difficulties.  Mr. Malik, it suggests, must have considered Mr. B’s request for financial assistance in March, 1985 to be “a truly fortuitous opportunity to get at least one bomb onto one plane.”  Sending Mr. B onto a plane with a bomb-laden suitcase would have served the additional purpose of ridding Mr. Malik of Mr. B and his litigation. 

[515]        The Crown responded to only three areas raised by Mr. Malik, submitting that the remaining issues were not relevant to his credibility and that any inconsistencies in his testimony were not material:

·         With respect to Mr. B’s dealings with the Trustee in Bankruptcy, the Crown conceded that, while relevant to his credibility, that matter was dated and Mr. B had tended to agree with counsel’s suggestions during cross-examination that he had lied under oath;

·         With respect to whether Mr. B had told anyone about his alleged conversation with Mr. Malik after going to police, the Crown submits that, considered as a whole, Mr. B’s evidence is that it was “possible” that he had told Mr. Gill and Ms. D about this conversation and that their testimony was therefore not inconsistent on this point;

·         Mr. B’s responses with respect to whether he had asked Mr. Malik what was to be in the suitcase were adequately explained in his cross-examination.

[516]        The Crown also submits that Mr. B was not properly cross-examined on some of the matters raised in Mr. Malik’s closing submissions. 

D.        Ms. D and Related Witnesses

1.         The Position of Mr. Malik

a.         Overview

[517]        Mr. Malik submits that rather than the loving confidante she claimed to be, Ms. D was an angry and bitter person who became increasingly vengeful towards him.  Her witness box protestations of love, respect and sympathy for Mr. Malik are false and are contradicted by her own words and actions leading up to and following her dismissal from the Khalsa pre-school in November, 1997.  When confronted with her statements to Mr. Rowe, Cpl. Best and S/Sgt. Schneider, Ms. D repeatedly claimed confusion or loss of memory in an effort to avoid having to explain them. 

[518]        The defence submits that Ms. D’s false evidence about her state of mind regarding Mr. Malik and her relationship with CSIS and the RCMP is fatal to her credibility.  Her lies not only reveal her to be a witness who cannot be trusted, but also undermine the Crown’s entire theory concerning the context for Mr. Malik’s implausible confession.  Moreover, Ms. D attributed to him in that confession errors consistent with information then in the public domain.  This leads to no other conclusion than that she lied about that confession, exposing her as a completely untrustworthy witness.

b.         Relationship with Mr. Malik

[519]        Mr. Malik submits that there is no evidence to support the portrait of an intimate and loving relationship as painted by Ms. D at trial.  At best, the evidence suggests that they had a friendship and a good working relationship based on their mutual commitment to creating a successful pre-school. 

[520]        Ms. D developed an extremely strong emotional attachment to the pre-school.  As its creator, it became the primary focus of her life.  Through extraordinary effort on her part, the school became a success.  Despite that success, circumstances began to change in 1996, leading to a breakdown in her relationship with Mr. Malik and the eventual termination of her employment.

[521]        Mr. Malik submits that Ms. D’s evidence regarding daily phone contact between them was not supported by any evidence at the trial.  Despite his telephones having been intercepted between September, 1996 and January, 1997, the only evidence before the Court is of a single telephone phone call between Mr. Malik and Ms. D. 

[522]        Mr. Malik notes that his disclosure request was not restricted to a name search of the logs as implied by the Crown and, in any event, the Crown has never revealed why a voice analysis of the preserved tapes was never conducted once it realized the significance of Ms. D’s evidence to their case.  Further, the Crown’s submission that the calls would have been in Punjabi is an untenable explanation for its failure to review the actual tapes as Ms. D testified that she spoke Punjabi very poorly and communicated with Mr. Malik mostly in English. 

[523]        Accordingly, submits Mr. Malik, Ms. D’s evidence of daily phone contact is completely and demonstrably untrue, revealing that she has exaggerated and lied about her relationship with Mr. Malik to bolster her credibility regarding her allegations.  The independent evidence before the Court actually supports the conclusion that any relationship with Mr. Malik had deteriorated by 1996. 

c.         Ms. D’s State of Mind in 1996

[524]        The defence submits that Ms. D’s state of mind towards Mr. Malik had clearly changed by the spring of 1996 and that the evidence with respect to that time period forward completely undermines her claim of a loving relationship.  In May, 1996, for example, she filed a human rights complaint naming Mr. Malik, Mr. Uppal and the Satnam Education Society as defendants.  Ms. D would have appreciated the embarrassment this would have brought both Mr. Malik and the Society. 

[525]        Ms. D acknowledged that by that summer she had been bothered by a number of illegal or improper activities at the school.  She believed Mr. Malik to have been involved in those activities, noting in her journal that he was “a thief hiding behind religion” and that he “misuses the trust account”.  This evidence reveals a contempt for Mr. Malik, contrary to the relationship of love and trust she claims. 

[526]        Mr. Malik submits that Ms. D’s journal entries for later in 1996 also paint a picture of mistrust and a deteriorating working relationship with Mr. Malik.  Towards the end of November, 1996, Ms. D wrote that she had told her husband that she was “slowly going to break her ties with Mr. Malik” and that “I don’t trust him”.  Mr. Malik submits that Ms. D’s efforts to rationalize these entries were not persuasive, and that they demonstrate that she was increasingly angry and frustrated at him.

d.         Ms. D’s State of Mind in 1997

[527]        Ms. D’s belief about illegal activities at the school did not diminish in the months that followed and she spoke about this with Narinder Gill in the summer of 1997.  That same summer, Ms. D became aware of an investigation by the Ministry of Education into a report that fundamentalist group meetings had been held at the school.  She also acknowledged having been “told off” by Mr. Malik for interfering with fraudulent Unemployment Insurance applications and refusing to write a misleading letter for him. 

[528]        Mr. Malik submits that the evidence demonstrates that the relationship continued to deteriorate through the summer and into the fall of 1997.  When Ms. D became embroiled in a dispute with Mr. Uppal, Mr. Malik asked her to apologize.  At the same time, she became the focus of an intense campaign to force her to resign from the school.  Mr. Malik was actively involved in that campaign and eventually presented her with an ultimatum to quit or be laid off.  She responded by accusing Mr. Malik of changing the rules and hiring her on false pretences.  This dispute continued until Mr. Malik fired her on November 1, 1997

e.         Ms. D’s Actions Belie Her Words

[529]        Mr. Malik submits that Ms. D’s trial evidence, when contrasted with her words and actions, demonstrate the following:

(i)                              her actual feelings towards Mr. Malik are of anger and hostility;

(ii)                            she was untruthful in her evidence claiming she loves, respects and misses Mr. Malik and feels that her testifying is a act of betrayal of him;

(iii)                           she was untruthful in her evidence with respect to her motive for contacting CSIS;

(iv)                          she was untruthful in her evidence concerning her desire not to have any contact with the RCMP and her distrust of them;

(v)                            she was untruthful in her evidence that she did not remember much of what she told CSIS and the RCMP; and

(vi)                          she was untruthful in her evidence concerning her relationship with Mr. Malik during her last year and a half at the pre-school.

[530]        Mr. Malik submits that the theme of love and respect running through Ms. D’s evidence was a calculated attempt to achieve the dual objectives of diffusing the inevitable challenge to her credibility based on her animus towards Mr. Malik, and explaining the implausible suggestion that Mr. Malik would have confessed his role in the Air India bombings to her.  In order to imbue this implausible assertion with an air of reality, Ms. D realized that their relationship had to have been one of such great love and trust that Mr. Malik would have had the confidence to share such damning information with her, thereby exposing himself and others to terrible risk. 

[531]        As noted above, however, there is no evidence to substantiate her claims of such a relationship.  Moreover, Ms. D’s actions and words in 1996, 1997 and 1998 are, in fact, wholly inconsistent with the existence of a relationship of this nature.    

[532]        Ms. D had been ostracized and harassed during the final months of her employment at the school.  Mr. Malik submits that she likely increased her association with persons hostile to him, such as the Sahotas, who provided her with a link to CSIS.  Based on gossip, speculation and certain publications, Ms. D may have come to believe that Mr. Malik was one of those responsible for the Air India explosion.  Fuelled by a desire for revenge, Ms. D turned this belief into the damning evidence she placed before the Court. 

f.          Destruction of Journal and File Materials

[533]        Ms. D testified that she had destroyed material in her journal and files in the days and months following her departure from the pre-school since she feared being caught for spying and did not wish her relationship with Mr. Malik to be exposed.  This explanation, submits Mr. Malik, is inconsistent with her conduct as described by Mr. Rowe and the RCMP officers with whom she dealt.  Ms. D had already spent many hours with CSIS describing allegations of unlawful conduct by Mr. Malik and had stated that she wanted this information to be put to the “maximum use”.  Ms. D also gave a number of statements to the RCMP and continued to assist them by gathering and providing them with information between November 1997 and April 1998.

g.         The Newspaper Confession

[534]        Mr. Malik submits that Ms. D’s evidence regarding the Newspaper Confession is neither credible nor reliable. 

[535]        By the time Ms. D disclosed this alleged confession to the police, the Air India investigation had been ongoing for 13 years and most of the information she attributed to Mr. Malik was in the public domain.  Significantly, numerous factual errors that Ms. D claimed to have been told by Mr. Malik regarding the booking and pick-up of the airline tickets can be traced to publications released long before her first disclosure of the confession.  That it was a fabrication is also reflected in the fact that she did not report the confession for many months after her initial involvement with the RCMP despite having provided them with considerable damaging information about Mr. Malik. 

[536]        Mr. Malik notes that Ms. D’s evidence concerning the Newspaper Confession was not corroborated, with none of the following potential witnesses being called by the Crown:

(i)                                     the three pre-school teachers (Mrs. Basra, Mrs. Grewal and Mrs. Virk) who were reading the Awaaz article and to whom she spoke;

(ii)                                    Mrs. Reyat, who translated the article for her;

(iii)                                  Mrs. Sekhon, to whom she spoke about the article immediately prior to her confronting Mr. Malik; and

(iv)                                  Narinder Gill, who was called as a witness by the Crown, but was not questioned regarding the discussion about the article he had had with Ms. D following her meeting with Mr. Malik.

[537]        Mr. Malik submits that Ms. D’s evidence regarding her interactions with Mrs. Reyat leading to her confrontation with Mr. Malik were overly dramatic and theatrical.  Her alleged discussion with Mr. Malik also does not ring true as a conversation between a mass murderer and his trusted confidante.  While claiming difficulty recalling any of the details of her dealings with CSIS or the RCMP, Ms. D was able to describe in minute detail her attendance at the school that day when testifying.  In addition, Mr. Malik submits that her testimony was melodramatic and cites as examples her description of him as being “like my hero” and her claim that “he could make me do anything”.    

[538]        Mr. Malik submits that Ms. D’s reaction to the confession and the manner in which she said it evolved are illogical.  One would have expected her to be shocked and horrified.  Instead, she claims to have conducted an inquiry into the respective roles of various individuals, including a detailed discussion regarding Daljit Sandhu picking up the tickets.  Mr. Malik submits that Ms. D’s attempt to incorporate details obtained from publications in the public domain in an effort to add plausibility to her account has now had the opposite effect. 

[539]        In addition, her evidence regarding how the conversation ended is also illogical.  Ms. D testified that Mr. Malik had ended the conversation by telling her that he had spent enough time with her and that there might be times when he would have to deny telling her the details he had just related.  She then stated that he sent her out for some hot water for his tea.

[540]        In light of the foregoing, Mr. Malik submits that Ms. D’s description of the Newspaper Confession is simply not in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (See: Faryna v. Chorney, [1952] 2 D.L.R. 354 at 356 (B.C.C.A.))

i.          Information in the Public Domain

[541]        Mr. Malik submits that one of the unique factors in the present case is that the statements of key witnesses to the police in 1985 were repeated almost verbatim in the book The Death of Air India Flight 182.  In addition, Soft Target was the subject of considerable public discussion and commentary in the media.  Both were published long before Ms. D’s statements to the police disclosing the Newspaper Confession. 

[542]        Mr. Malik submits that Ms. D obtained the details she attributed to him in the Newspaper Confession from these and other sources.  That she did so is evident from the fact that she testified to having been told what are now known to have been erroneous details of the ticket booking and purchase, details that can be traced to Soft Target, The Death of Air India Flight 182 or other publications.  These erroneous details are as follows:

(i)                              The airline tickets were booked through Canadian Airlines;

(ii)                            Both tickets were for travel to India and, in particular, the first booking (L. Singh) was booked all the way through to India;

(iii)                           The reason the tickets were changed to one-way was because the purchaser did not have enough cash; and

(iv)                          The contact number was changed at the time of the ticket pick-up to that of the Ross Street Temple.

[543]        Mr. Malik submits the following with respect to each of the above pieces of information:

(i)                              The evidence indicates that the tickets were booked through CP Air prior to its amalgamation with Canadian Airlines.  The 1995 RCMP News Release concerning the one million dollar reward incorrectly referenced the ticket booking as having been done by a Canadian Airlines agent in Vancouver;

(ii)                            The evidence indicates that only the M. Singh ticket was booked through to India.  The L. Singh ticket was booked only to Bangkok.  The Awaaz article had erroneously reported that Air India Flight 301 (the L. Singh ticket) was scheduled to go from Tokyo to Bombay, India via Bangkok;

(iii)                           The evidence indicates that the L. Singh ticket was changed to a one-way ticket at the time of pick-up, not because the purchaser did not have enough cash, but because the ticket was supposed to initially have been booked as a one-way ticket.  The shortage of cash explanation, however, is referenced in both Soft Target and The Death of Air India Flight 182; and

(iv)                          The evidence indicates that none of the contact numbers associated with either ticket, regardless of when given, was the number of the Ross Street Temple.  However, Soft Target erroneously states that the ticket purchaser changed the telephone number where the ticket holders could be reached to the number for the Ross Street Temple.  In addition, a passage contained in The Death of Air India Flight 182 states that, “when the reservations were made, telephone numbers of Sikhs and the main Sikh temple on Ross Street in Vancouver had been given as a supposed means of contacting the customers.”  This information was also erroneously reported in a number of other publications.

[544]        Mr. Malik points out that, also contained in those publications, were many details which proved to be accurate:

(i)                              two tickets had been booked;

(ii)                            the tickets had been booked through the airline’s downtown Vancouver office;

(iii)                           both tickets were for flights connecting with Air India;

(iv)                          the first booking (L. Singh) was for travel from Vancouver to Japan and then from Japan to Bangkok on Air India;

(v)                            the second booking (M. Singh) was initially for travel from Vancouver to Montreal and then from Montreal to India on Air India;

(vi)                          the second booking (M. Singh) was changed;

(vii)                         a second call had been made to change the second booking (M. Singh);

(viii)                       the second booking (M. Singh) was changed to Vancouver to Toronto and Toronto to England to India on Air India;

(ix)                          the second leg of the second booking (M. Singh), namely the Air India flight from Toronto, was wait-listed;

(x)                            during the conversation with the ticket agent, the caller was asked whether he needed the tickets delivered and he said no, he would send someone to pick them up;

(xi)                          the individual who picked up the tickets changed the names of the passengers on the tickets;

(xii)                         the individual who picked up the tickets paid for them in cash;

(xiii)                       a return ticket was changed to one-way at the time of pick-up;

(xiv)                       the contact phone number for the tickets was changed at the time of pick up; and

(xv)                        the individual who picked up the tickets had his beard in a net and wore a fancy ring.

[545]        Mr. Malik also made submissions regarding the following matters concerning the Newspaper Confession:

(i)                              Ms. D’s identification of Daljit Sandhu as the ticket purchaser and the fact that there was no evidence implicating him, as well as positive non-identification by Mr. Duncan;

(ii)                            details attributed to Mr. Malik that have not been proven to be accurate but were also contained in the public domain such as the reason for the change in the M. Singh booking;

(iii)                           non-ticket booking admissions that were in the public domain or the subject of public discussion, including the information about the woman Ms. D claimed had purchased a kara from Mr. Malik;

(iv)                          the political motive Ms. D attributed to Mr. Malik that was in the public domain;

(v)                            information concerning Mr. Johal being at the airport on June 22, 1985;

(vi)                          information concerning the involvement of Surjan Gill;

(vii)                         information concerning the involvement of Mr. Parmar and Mr. Reyat;

(viii)                       information concerning the involvement of Satwant Sandhu;

(ix)                          information concerning the involvement of Balwant Bhandher;

(x)                            the “down in the ocean” comment and Ms. D’s acknowledgement that Satwant Sandhu had used the phrase on one occasion; and

(xi)                          Ms. D’s evidence that there had been a meeting at Mr. Parmar’s residence on the day of the Air India explosion, and where she may have learned this information.

[546]        In conclusion on this issue, Mr. Malik submits that the fact that some of the details Ms. D alleges she was told by Mr. Malik were proven to be true does not assist the Crown.  Rather, that such information was in the public domain and the subject of gossip, speculation and rumour in the community generally, as well as specifically contained in various books and articles, undermines the trustworthiness of Ms. D’s evidence. 

[547]        Further, her inclusion of details proven to be false but also in the public domain leads to no other conclusion than that she is lying about the confession.  With respect to the Crown’s suggestion that Mr. Malik may have “gotten it wrong” when he confessed or that Ms. D may have simply been inaccurate in recounting the incident, Mr. Malik replies that it defies common sense that either of them would have coincidentally made the same mistakes as contained in the publications. 

ii.         Mr. Bhandher’s Speeding Ticket

[548]        Mr. Malik submits that the evidence that Balwant Bhandher was ticketed for speeding in 1991 is of little assistance to the Crown as it does not confirm the inculpatory aspect of Ms. D’s evidence (Balwant Bhandher’s fear of arrest when stopped) linking that ticket to the Air India incident.  All it confirms is that he received a ticket in the 1990s, a fact Ms. D could have learned directly from Balwant Bhandher, with whom she worked, or from Narinder Gill, who also worked with Balwant Bhandher.  The fact that Ms. D knew that Mr. Bhandher received a speeding ticket in the 1990s does not make it any more likely that she was telling the truth when she said that Mr. Malik told her that Mr. Bhandher drove the bombs to the airport in 1985.

iii.        Response to Crown’s Submission on Delay in Reporting Newspaper Confession

[549]        Mr. Malik submits that the Crown mischaracterized his position in suggesting that the defence theory was that Ms. D had set out from the early fall of 1997 to implicate him in the Air India conspiracy.  On the basis of that mischaracterization, the Crown submitted that it would have made no sense for her to have waited so many months before revealing the Newspaper Confession had she been improperly motivated.

[550]        In his reply, Mr. Malik clarified his position that the reason Ms. D had not disclosed the Newspaper Confession until April, 1998 was because she had not formulated her allegations until then. 

iv.        Ms. D’s Journal

[551]        Mr. Malik submits that the body of evidence surrounding the following entry at page 135 of Ms. D’s journal undermines her evidence regarding the Newspaper Confession and further demonstrates her untruthfulness:

[Mrs. Reyat] told me some stuffs that came in the paper and it shocked me I confronted Malik and he confirmed but told me not to worry but I am worried.  I care about him and Mrs. Reyat...

[552]        A review of Ms. D’s various statements to the police and the Crown regarding this entry reveal that her position regarding its meaning has been inconsistent and that she has followed her usual pattern of deflecting the reason for her inconsistency from herself to others. 

[553]        Ms. D’s evidence that the entry had nothing to do with the Newspaper Confession contradicted both her prior statements and Crown’s submissions at Mr. Malik’s bail hearing in December, 2000.  Mr. Malik submits that this inconsistency is a significant factor in assessing Ms. D’s credibility.  Ms. D changed her statement regarding this apparent reference to the Newspaper Confession only after it had been pointed out at the bail hearing that the Awaaz article had not been published within the time period of the journal entry.  She initially maintained her position that the journal entry referred to the Newspaper Confession during her Crown interview in April, 2001, before becoming unsure about the issue and being left to consider her position on her own.

[554]        The Crown relied on this entry at the bail hearing as independent confirmatory evidence of the Newspaper Confession.  Once Ms. D realized that the dates in her journal did not fit with the date of the Awaaz article, she began to resile from her earlier position.  Her subsequent explanation to Cpl. Best that there was another occasion within two months involving a similar confrontation with Mr. Malik after reviewing an article with Mrs. Reyat is implausible.  It would be remarkable for her to have forgotten about making a reference in her journal to her confrontation with Mr. Malik which she described as a shocking revelation. 

[555]        Mr. Malik further submits that it is not proper for the Crown to invite the Court to make a finding that Ms. D may never have said that the journal entry was a reference to the Newspaper Confession in light of the submissions made at the bail hearing and admissions that have been made concerning Crown notes of Ms. D’s interviews.  It is also improper for the Crown to attempt to assist Ms. D by taking the position during submissions that he must have been at fault for the misunderstanding.  The Crown’s submission that he did not accurately convey what he had been told at the bail hearing is also inconsistent with the admission in which he effectively swears that his bail submissions accurately conveyed what Ms. D had told him. 

[556]        Finally, Mr. Malik submits that Ms. D’s and the Crown’s attempt to explain this inconsistency as being a product of Ms. D’s confusion should not provide the Court with any comfort.  This explanation suggests that the Crown put words into her mouth and that she adopted them, raising serious questions about a volume of material that Ms. D disclosed for the first time during Crown interviews.

h.         The Cudail Discussion

[557]        While accepting that there was a discussion between himself and Ms. D concerning Ms. Cudail, Mr. Malik focused his submissions on whether her evidence that he made any statement suggesting responsibility for the Air India crash is credible. 

[558]        Mr. Malik submits that this discussion was much different than the alleged Newspaper Confession in that it involved his apparently making an analogy between the Cudail suicide attempt and the Air India crash.  The difference between an innocent and an incriminating analogy, however, may be as little as the two letter difference between “when” Air India crashed and “we’d” Air India crashed.  Of relevance in this regard is the fact that the evidence clearly reveals that Ms. D does not have an independent memory of the precise words used by Mr. Malik during that discussion on May 8, 1996.  When not assisted by her journal entry, she has used phrases such as “we lost...people” or “we finished ... people”, not “we’d crashed Air India”. 

[559]        As with regard to the Newspaper Confession, Mr. Malik again submits that it would not have been logical for him, even were he responsible for the Air India crash, to have admitted such to Ms. D.  That she did not react in some fashion to the fact that, in her mind, the man she loved had just confessed to the murder of over 300 people is similarly illogical.  Her evidence that she said nothing and carried on with the loving relationship is not believable.

[560]        Ms. D had been engaged in an emotionally upsetting discussion with Mr. Malik.  She testified that she was not interested in the Air India incident and that the other matters discussed during that conversation had a dramatic impact on her.  She had no reaction to the words spoken about Air India and, in the time period that followed, there is nothing in her conduct to suggest that Mr. Malik had confessed to being involved in such a horrible crime.  Mr. Malik submits that, at most, Ms. D may have looked back on this conversation and surmised that he had been referring to the Air India crash. 

[561]        Mr. Malik also submits the following:

(i)                              Ms. D has Mr. Malik referring to 1982 as being the year of the crash;

(ii)                            Her evidence regarding the pieces of paper she wrote on and the events the following morning with Mrs. Reyat was confusing and convoluted;

(iii)                           Her explanation regarding the inconsistencies as to whether or not she went out with Mr. Malik for a milkshake after the discussion is highly significant as it suggests that she has difficulty remembering the events of May 8, 1996;

(iv)                          The evidence of Mr. Cudail is inconsistent with Ms. D’s evidence, not consistent as suggested by the Crown;

(v)                            Mr. Malik saying something like “when Air India crashed” is more consistent with her reaction and her statement to S/Sgt. Schneider that he said “we lost 329 people in the name of Sikhism”, as well as with S/Sgt. Schneider’s observation that “she thought he was speaking about Air India”; and

(vi)                          There is ambiguity in the expression “we’d” and whether it referred to Mr. Malik specifically or Sikhs generally.

[562]        Mr. Malik submits that the Crown’s submission that Ms. D’s testimony regarding “we had Air India crashed” is bolstered by what she recorded in her journal presupposes that what was written in her journal was accurate.  He further notes that the journal was not seized pursuant to a search warrant, but rather brought to the RCMP four days after she first referred to it during a police interview.

[563]        In conclusion, Mr. Malik submits that Ms. D is not an honest witness generally and has taken an ambiguous or innocent discussion and attempted to make it incriminating.  Alternatively, even if she is taken to be an honest witness attempting to do her best in describing this conversation, her evidence regarding the reference to Air India is too uncertain to be relied upon. 

i.          The Anashka Conversation

[564]        Mr. Malik submits that Ms. D’s evidence that the Anashka conversation occurred in April, 1997 or the spring of 1997, and specifically after the Newspaper Confession, has been refuted beyond any doubt by documentary evidence establishing that Mindy Bhandher was out of the country at this time. 

[565]        The Crown’s new theory that the conversation must have taken place either before or after he left the country is not supported by the evidence and is not in accordance with Ms. D’s testimony.  Further, the untimely disclosure of this revised theory has foreclosed Mr. Malik’s ability to respond to it. 

j.          The Mr. B Discussion

[566]        Mr. Malik submits that chronological context is critical in considering Ms. D’s evidence regarding her discussion with Mr. Malik about Mr. B.  She only disclosed this conversation to the police on June 24, 1998, two months after she met with Mr. B at her lawyer’s office in April, 1998.  She had never mentioned it to the police prior to that time despite many meetings and the taking of a number of formal statements. 

[567]        Mr. Malik further submits that Ms. D’s evidence with respect to this conversation differs dramatically from her statements to the RCMP, and is also inconsistent with that of Mr. B.  Her evidence, for example, that Mr. Malik said that he wanted Mr. B to take a “device” with him onto the plane is in stark contrast to a statement under oath to the RCMP wherein she stated that she had assumed Mr. Malik was talking about “samples”.  Her explanation at trial that she had given an incomplete answer to the police and that they “were kind of talking fast and going over things fast” is also refuted by the videotape of that portion of the interview.  Mr. Malik submits that Ms. D has embellished her conversation with Mr. Malik subsequent to 1998 and has attempted to graft an incriminating conversation onto an innocent one based on what she was told by Mr. B. 

k.         The Calgary Meeting

[568]        To the Crown submission that there is other evidence confirming that of Ms. D, Mr. Malik replies that the only other evidence of any meeting in Calgary comes from Narinder Gill, who does not place Mr. Malik at any such meeting.

l.          The Seattle Meeting

[569]        Mr. Malik submits that Ms. D’s evidence in this regard is inconsistent, and notes that she reported this conversation for the first time in a pre-trial interview the day before she began testifying.  While Mr. Malik may have attended a religious ceremony at the Seattle Sikh temple at some time, the evidence demonstrates that such attendance did not occur prior to the Air India explosion and was unrelated to it.

[570]        Mr. Malik submits that the Crown submission that Narinder Gill’s evidence about the Seattle trip confirms that of Ms. D ignores the actual evidence regarding that trip.  His evidence contradicts the most critical aspects of Ms. D’s evidence.  In particular, he never mentioned anything about Bhai Jiwan Singh blessing anyone. 

[571]        Moreover, the evidence does not support that of Ms. D regarding the timing of the trip.  All of the evidence in that regard leads to the conclusion that the Seattle trip took place after the Air India explosion.  The Crown submission that the Seattle trip may have taken place prior to June 21, 1985, the date Balwant Bhandher saw his doctor in Calgary, overlooks Narinder Gill’s evidence that the trip had taken 10 to 15 days and had occurred after the birth of a child on June 14, 1985.  Further, while the Crown submits that the Alberta school records cannot be relied upon and that the representative of the Calgary School Board was not qualified to interpret the records, it called no contradictory evidence.  The Crown also ignored Narinder Gill’s evidence that he had been in Calgary on June 24, 1985.  The only reasonable conclusion is that the trip occurred after June 24, 1985. 

[572]        The Crown submits that it is unlikely that Ms. D would have picked up a “throw-away remark” from Narinder Gill and then fabricated a story around it.  Mr. Malik replies that the evidence was not that there had been a “throw-away remark” by Narinder Gill, but rather, that Ms. D had discussed the Seattle trip with him on three separate occasions prior to disclosing her conversation with Mr. Malik on that subject.  That disclosure came for the first time on the eve of her testimony, thus rendering untenable the Crown’s submission that Ms. D would not have risked lying about this conversation because she could have been contradicted by Narinder Gill.

m.        General Issues Regarding Credibility

[573]        Mr. Malik makes a number of submissions regarding general issues affecting Ms. D’s credibility, including:

(i)                              Her attitude and demeanour;

(ii)                            The extraordinary number of days she spent in pre-trial interviews with the Crown;

(iii)                           Leading questions and the tight control placed on Ms. D by the Crown during her direct examination;

(iv)                          The rehearsed and theatrical nature of Ms. D’s evidence;

(v)                            Ms. D’s less than forthright testimony regarding the state of her marriage;

(vi)                          Deliberate changes made to pages 171 to 174 of her journal which she described as “doodlings”;

(vii)                         Internal and external inconsistencies in her evidence; and

(viii)                       The inherent improbability of much of Ms. D’s testimony.

n.         The Evidence of Mr. Arora

[574]        The Crown did not challenge Mr. Arora’s evidence describing Ms. D’s having looked at Soft Target and his having delivered it to her a few days later.  Further, consistent with Mr. Arora’s evidence that Ms. D had commented about a mis-spelling of Mr. Malik’s name while looking at Soft Target, the book did include an unusual spelling of his name.  While acknowledging that Ms. D had not been cross-examined about this evidence since counsel had not been aware of it at the time she testified, Mr. Malik submits that it provides further grounds for scepticism regarding Ms. D’s evidence and another basis for reasonable doubt.  That she would have been interested in the book is not surprising as it referred to Mr. Malik.  What is surprising, however, is her denial of having ever seen it.  The Crown advanced no application to re-call Ms. D to provide an explanation about this incident. 

o.         The Evidence of Nick Rowe

[575]        Mr. Malik submits that Mr. Rowe’s reports and his police interview with Cpl. Best constitute the most reliable evidence of his interactions with Ms. D.  The reports are contemporaneous and were prepared from careful notes made at the time of the meetings.  His police interview, while two years after his contact with Ms. D, is much closer in time and therefore more reliable that his testimony in these proceedings.  

[576]        Mr. Malik submits that the evidence of Mr. Rowe paints a very different picture from that which was provided by Ms. D in her testimony.  While Ms. D consistently claimed to have approached CSIS for the sole purpose of finding out why she was being accused of being a CSIS spy, Mr. Rowe’s evidence and reports completely undermine that evidence and suggest other motivations. 

[577]        In her initial call to Mr. Rowe, Ms. D indicated that she wished to meet with him as she had information that she wished to pass on similar to that which had been provided to him by the Sahotas.  Her subsequent meetings with Mr. Rowe reveal that she followed through on that expressed motivation.  She proceeded to report a plethora of fraudulent and immoral allegations involving the conduct of Mr. Malik and his associates.  Mr. Rowe noted that she appeared eager to impart information, appeared “very definitely motivated” by a desire to “get back” at her antagonists at the Khalsa School and that she “lacks respect for Malik”. 

[578]        While Ms. D testified that she was scared and confused about the hotel meetings with Mr. Rowe, his evidence again paints a very different picture.  Ms. D initially claimed not to recall much about those meetings and then recalled that she had provided some information, though she was not certain whether it had been to Mr. Rowe or the RCMP Commercial Crime Office.  Mr. Rowe testified that, to the contrary, Ms. D had provided a large amount of detailed information and had been “in every way eager to impart the information to me and the Service”.

[579]        While Mr. Rowe attempted to support Ms. D’s testimony by suggesting that she had indeed raised the issue of her being a CSIS spy at the Starbucks meeting, Mr. Malik submits that his evidence on this point was inconsistent with his statements in both his police interview in 1999 and his interview with Crown counsel in 2001.  In the latter interview, he stated that she had said nothing about being accused of being a CSIS spy at that time.  Mr. Rowe has no notes of the Starbucks meeting and also agreed that he had been trying to be accurate during his interview with the Crown.  Mr. Malik further submits that whether or not she mentioned the CSIS spy issue, it is illogical that she would have then agreed, in effect, to become a spy for CSIS. 

[580]        Mr. Malik also submits that Mr. Rowe’s evidence directly contradicts Ms. D’s denials of having made certain allegations to him, including whether Mr. Arora was in Canada under false pretences and that Mr. Malik supported terrorist activities.

[581]        With respect to Ms. D’s transfer from CSIS to the RCMP, Mr. Malik submits that her evidence is also directly contradicted by that of Mr. Rowe.  Her evidence was that she did not trust the RCMP, did not want to meet with them and that when she did meet with them, she was reluctant to provide information.  Mr. Rowe, however, agreed that his records were accurate when they described her as understanding that the RCMP might become involved in her situation and that she had consented to his contacting them.  On the day before she first met with the RCMP, Ms. D indicted that “she wanted to proceed as far as she could in, in having the information involving Mr. Malik put to the maximum use in terms of, of its potential for exploitation by the police or, or you know in our case of Security Service, Intelligence Service”.  Further, Mr. Rowe described Ms. D being told by Cpl. Best at the initial meeting with the RCMP “that her information was needed for court, which she consented to” and that she “appeared to be totally at ease with Best and her circumstances”. 

p.         Daljit Sandhu

[582]        Mr. Malik submits that there is no evidence of Daljit Sandhu associating with any of the alleged co-conspirators in the time period leading up to the Air India/Narita explosions.  He was a credible witness and the only reasonable conclusion, on all of the evidence, is that he was not involved in the conspiracy as Ms. D claims she was told in the Newspaper Confession. 

[583]        Mr. Malik submits that there is no logical reason why he would have chosen Daljit Sandhu, already a public figure at the time, to pick up the tickets as he would have been readily identified.  Further, Gerald Duncan was shown a number of photo line-ups and photographs and has never selected Daljit Sandhu as the purchaser of the tickets.

[584]        Mr. Malik submits that there was no evidence Daljit Sandhu ever wore a ring, noting that the Crown and the police did not accept his offer to review the over 1,500 photographs he produced.  Further, a number of Crown witnesses who knew Daljit Sandhu were not questioned about this issue. 

[585]        Mr. Malik also submits that a close review of Daljit Sandhu’s evidence reveals that his statements in the video excerpt about Mr. Reyat were not inconsistent with his evidence, noting that he had explained that he finally came to his belief that Mr. Reyat was a criminal after his guilty plea in relation to the Air India bombing and not as a result of his conviction in 1991.  Mr. Malik also submits that his attitude towards Mr. Reyat was understandable as he had maintained his innocence until 2003, had been active in the Sikh community and was seemingly a religious man.  Further, his public comments were not surprising in light of his role as a community leader. 

[586]        With respect to the 1989 video excerpt regarding the assassination of Indira Gandhi, Mr. Malik submits that while the comments therein amount to a “surface inconsistency” in relation to his testimony, he was not intentionally misleading the Court.  Daljit Sandhu did much public speaking and had simply forgotten about these comments made 15 years earlier.  Further, this was an emotional, not rational, response, and he testified that it was still in the “heat of the moment” even though a number of years had passed since the Golden Temple attack. 

[587]        Finally, Mr. Malik submits that the Crown simply adopted Ms. D’s evidence and tried to implicate Daljit Sandhu by attacking his character and showing that he was sympathetic to Mr. Reyat.  There is no independent evidence of his involvement and it is simply not logical to conclude that this leader of the Sikh community and long term executive member of the Ross Street Temple participated in the conspiracy. 

q.         Satwant Sandhu

[588]        Mr. Malik submits that there is no independent evidence to support Ms. D’s evidence regarding Mr. Malik’s statement that Satwant Sandhu had been involved in the conspiracy. 

[589]        Ms. D provided no reasonable explanation for her failure to mention Satwant Sandhu’s alleged involvement for a number of months after first disclosing the Newspaper Confession.  Mr. Malik submits that her evidence was also inconsistent regarding when Mr. Malik had first told her about Satwant Sandhu’s involvement, noting that she had provided two versions under oath.  When pressed as to when she was told about his involvement, she claimed not to remember it very well.  Accordingly, Mr. Malik submits that her evidence about Satwant Sandhu is not credible as she has never been consistent in recounting the details. 

[590]        Further, Mr. Malik submits that there is no independent evidence of any contact between Mr. Malik and Satwant Sandhu during the relevant time period before the Air India/Narita explosions and thus, no factual foundation for the Crown’s suggestion that he was Mr. Malik’s “man” at any time.  Similarly, there is no evidence of any contact between Satwant Sandhu and Mr. Reyat in the period leading up to the explosions, and also no evidence that he had any involvement or interaction with Mr. Parmar or Mr. Reyat in the period surrounding the June 4 test blast.  In fact, the Crown never even questioned him in relation to his whereabouts on June 4 or suggested that he was involved in the test blast.  Unable to produce even a single piece of independent evidence suggesting that Satwant Sandhu had been involved in the Air India conspiracy, the Crown simply adopted Ms. D’s evidence recounting Mr. Malik’s statements and then sought to implicate him by attacking his character, suggesting that his dealings with Mr. Parmar were sinister and implying without foundation that he supported violence and terrorism.

2.         Position of the Crown

a.         Overview

[591]        The Crown’s submissions regarding Ms. D generally took the form of a response to those of the defence.

[592]        At the outset, the Crown made general submissions regarding the special circumstances surrounding Ms. D and suggested that, in effect, the Court should exercise some restraint when considering certain issues that might normally impact on the credibility of a witness.  These included, for example, her physical and emotional circumstances at the time she attended for pre-trial interviews.  Ms. D had explained to the Court how onerous the process was and how she had to deal with a number of medical issues during the pre-trial interview process.  She also had to travel alone to interview locations and testified that she was always in fear of her safety.  As a result, submits the Crown, Ms. D might have innocently and inadvertently made errors during those interviews. 

[593]        The Crown also submits that the Court should be wary of proceeding on the basis that notes of Crown interviews accurately reflect what was said by Ms. D at the time. 

b.         Demeanour on the Witness Stand

[594]        The Crown submits that considerable weight should be placed on an assessment of Ms. D’s demeanour on the witness stand.  She was under considerable stress while she testified yet came across as an honest and truthful witness.  She was compelling and remained composed during her cross-examination, never evasive.  Mr. Malik’s suggestion that she was theatrical and play-acting should be rejected. 

[595]        The Crown submits that Mr. Malik’s submissions that Ms. D was motivated by anger and revenge do not have an air of reality.  She denied that her world revolved around the pre-school, and the suggestion that her termination from that school resulted in her perjuring herself and accusing Mr. Malik of this heinous crime should be rejected.  When Ms. D felt that she had been wrongly treated, she took appropriate and lawful steps, whether through her human rights complaints or her civil lawsuit for wrongful dismissal.   

[596]        Finally, the Crown submits that Ms. D is a person of good character with admirable qualities.  Her honesty was demonstrated, for example, by her refusal to take part in schemes to defraud unemployment insurance or misuse government grants.  Considering all of the evidence in relation to Ms. D, including her demeanour, the Court should be satisfied that she is truthful and reliable, and that her evidence can be relied upon to support a conviction against Mr. Malik beyond a reasonable doubt. 

c.         The Nature of the Relationship

[597]        Mr. Malik submits that it is illogical that he would have admitted his involvement in the alleged conspiracy to Ms. D.  The Crown, relying on the testimony of Ms. D, submits that their loving and trusting relationship made such confessions entirely logical.

[598]        By the time of the Cudail Discussion in 1996, Mr. Malik and Ms. D had known each other for over three-and-a-half years and loved each other.  Mr. Malik had expressed his love to her, and they had become attached.  Ms. D is attractive, personable, intelligent, and had worked hard to make the Khalsa pre-school a success.  She also challenged Mr. Malik and was not always deferential, a quality the Crown submits he must have found stimulating and refreshing.

[599]        The Crown submits that in light of the marital status of each of them, as well as Mr. Malik’s position in the Sikh community, it was necessary for them to keep their love a secret.  As such, it is unlikely that there would have been any outward evidence of such a relationship.  The Crown submits, however, that there is evidence of the relationship from Ms. D herself, who testified about certain information that she could only have gained from Mr. Malik, including:

(i)                              personal information about his spiritual advisor, Bhai Jiwan Singh;

(ii)                            personal information about Balwant Bhandher;

(iii)                           information about financial improprieties by Piara Singh Natt;

(iv)                          information about Kewal Singh Nagra; and

(v)                            information about his relationship with Mrs. Malik.

d.         Telephone Contact Between Mr. Malik and Ms. D

[600]        The Crown submits that the evidence of Cpl. Dumont is neutral with respect to the issue of this telephone contact.  The tapes of the calls were not reviewed as they are in Punjabi.  Since Cpl. Dumont only had the monitor logs with which to work, he was only able to do a name search for Ms. D.  In that regard, the Crown submits that Ms. D was not a person of interest at the time of the wiretap and that her name would have meant nothing to the monitors.  In addition, having known each other for a long time, it is unlikely that Mr. Malik or Ms. D would have identified themselves to each other.  Thus, the monitors would simply have recorded her as an “unknown female”. 

[601]        When asked by the Court whether the Crown had made any attempt to quantify the number of intercepted calls involving unknown females or conduct voice identification on any such calls, the Crown responded that Ms. D’s evidence “is as she has stated it” and that there had been no effort to go back and identify such calls after their significance had became evident. 

e.         The Newspaper Confession

[602]        The Crown submits that Ms. D’s evidence about the Newspaper Confession is credible and constitutes direct evidence of Mr. Malik’s guilt. 

[603]        The Crown submits that Ms. D’s evidence describing how she came to speak with Mr. Malik that day is logical and believable.  Pointing out that it is always a matter of Crown discretion as to which witnesses to call at trial, it submits that no negative inference should be drawn from the fact that none of Mr. Malik’s long-term employees who interacted with Ms. D on the day of the Newspaper Confession were called.  Mr. Malik did not call these individuals either.

[604]        The Crown submits that the information Ms. D learned from Mrs. Reyat, with whom she had a close and trusting relationship, had a strong emotional impact on her and led her to confront Mr. Malik in the manner she described.  Had Ms. D been fabricating her evidence, she would not have included her conversation with Mrs. Reyat as the prelude to her confrontation with Mr. Malik since it could have been easily disproved by calling Mrs. Reyat as a witness.  She would have instead fabricated a story involving a person unknown.

[605]        Her evidence that Mrs. Reyat referred to a Globe and Mail article containing the same information as the Awaaz article is corroborated by the existence of a Globe and Mail article published on March 22, 1997.  Again, it makes no sense that Ms. D would have included this information about the Globe and Mail article had she fabricated the story.

[606]        That Mr. Malik would confess his involvement in the Air India explosion to Ms. D when she confronted him is understandable in light of the love they shared and the fact they had already shared many secrets.  In the context of their relationship, submits the Crown, it is unremarkable that he would have spoken with her frankly and directly as he did.

[607]        With respect to Mr. Malik’s submissions about factual errors which Ms. D attributed to Mr. Malik as part of the Newspaper Confession, the Crown submits the following:

(i)                              the reference to Canadian Airlines is not material as there is clearly some variance as to what the airline was called in 1985.  The Crown cites the example of Mr. Malik’s counsel referring to the airline as “CP Airlines” and not “CP Air”.  The Crown also submits that there is no evidence that Ms. D actually read the RCMP news release and that in addition to the reference to “Canadian Airlines”, that same document also refers to “CP Air” and “Canadian Pacific Airlines”;

(ii)                            with respect to the information that the L. Singh ticket had been booked through to India, the Crown submits that Ms. D could not have picked up this information from the Awaaz article because she does not read Punjabi;

(iii)                           with respect to the explanation as to why the L. Singh ticket was changed from return to one-way, the Crown submits that the fact that Mr. Duncan testified about a different explanation having been provided by the ticket purchaser does not necessarily mean that the reason Ms. D attributed to Mr. Malik was not true.  The person who picked up the tickets may not have had enough money with him and may have simply given another reason for wanting to change the ticket from one-way to return;

(iv)                          finally, with respect to the Ross Street Temple phone number issue, the Crown submits that Mr. Malik may have been inaccurate in his recollection or that Ms. D may not have accurately remembered what he told her.  The Crown submits that this error does not prove that Ms. D fabricated the Newspaper Confession.

[608]        The Crown submits that while Ms. D’s version of events may not always match up with the trial evidence, it is possible that she has simply not recalled everything stated by Mr. Malik with precision.  What is more important is that Mr. Malik was clearly speaking to her about the ticket booking and purchase part of the Air India conspiracy and his involvement therein.

i.          Ms. D’s Journal

[609]        The Crown submits that Mr. Malik has overstated the circumstances surrounding the reference contained on page 135 of Ms. D’s journal.  It submits that Mr. Malik has been unfair in his characterization of what happened and that the evidence on this issue leads only to the conclusion that there was a misunderstanding on the part of the Crown as to what Ms. D’s evidence would be on this point.  Ms. D was never given an opportunity to review the record of the Crown interviews to confirm whether what had been recorded was accurate.  She testified that sometimes the Crown did not get it right and stated early in her cross-examination that this was one of those areas. 

[610]        The Crown submits that a review of the Crown interview on April 27, 2001 demonstrates that Ms. D is concerned about this issue and the Crown’s interpretation of what is contained in her journal.  Further, during extensive cross-examination on the issue, she maintained the position that she had not written about the Newspaper Confession in her journal and that, in all the circumstances, no adverse inference should be drawn in relation to this issue.

ii.         Independent Confirmatory Evidence of the Newspaper Confession

[611]        The Crown submits that the following independent evidence confirms the accuracy of what Ms. D alleges Mr. Malik told her:

(i)                              two tickets were booked from CP Air at a downtown office;

(ii)                            one ticket was booked from Vancouver to Japan, connecting to Bangkok;

(iii)                           a second ticket originally booked from Vancouver to Montreal was changed to connect through Toronto with a wait list for the connection to England and then on to India;

(iv)                          the caller was asked if he needed the tickets delivered and he responded that someone would pick them up;

(v)                            Mr. Malik gave Daljit Sandhu money to pick up the tickets.  When he did not have enough money, he changed one of the tickets to one-way;

(vi)                          Daljit Sandhu changed the names on the tickets and left a new contact number.  He wore his beard in a net and had a fancy ring when he went to pick up the tickets;

(vii)                         Hardial Johal was a part of the group that went to the Vancouver Airport to deliver the suitcases;

(viii)                       One of the planes was late, a fact consistent with Mr. Malik’s comment that there would have been a greater impact and far more death had the plane landed on time;

(ix)                          there was a family matching the one to which Mr. Malik had referred when commenting that the Sikhs on the flight had not been “real Sikhs” and relating the story of the mother buying her daughter a kara at his stall;

[612]        In addition, the Crown relies heavily on evidence called at the trial which, it submits, confirms Ms. D’s evidence concerning the role of Balwant Bhandher and which was not included in any of the publications about Air India.  In this regard, the Crown points to the evidence that Balwant Bhandher owned a brown van in 1985 and received a speeding ticket in 1991.  Those details were never in the public domain but have been proven to be accurate.   

iii.        Information in the Public Domain

[613]        The Crown submits that Ms. D was unequivocal that she obtained all of the information she attributed to Mr. Malik directly from him.  Mr. Malik, it says, failed to properly cross-examine Ms. D about whether she had obtained information from sources such as Soft Target or the Death of Air India Flight 182, and little weight should be placed on his submissions in that regard as a consequence.  A proper cross-examination would have entailed counsel putting each piece of information to Ms. D, then referring her to the book that contained such information so that she could acknowledge or deny that she had obtained the information from that source. 

[614]        The Crown further submits that as Ms. D was not cross-examined on the evidence of Mr. Arora, the Court cannot speculate what her evidence would have been in that regard.  Moreover, it is also open to the Court to disbelieve Mr. Arora’s evidence, considering the unlikelihood of a copy of Soft Target being found in the Khalsa School bookstore.

iv.        Delay in Reporting the Newspaper Confession

[615]        The Crown submits that it does not make sense that Ms. D would have intentionally delayed disclosure of the Newspaper Confession had she wanted to falsely implicate Mr. Malik; such a delay would not have given the confession greater impact.  Her evidence that she did not realize the value of the information she possessed is reasonable considering that she is not legally trained and may have thought it a matter of her word against his.  The fact that the incident arose in the manner that it did, a number of months after her first contact with the police, actually serves to enhance, not detract from, her credibility. 

f.          The Cudail Discussion

[616]        The Crown submits that the admission by Mr. Malik during the Cudail Discussion affords direct proof of his guilt.  The Court should have complete confidence in Ms. D’s recollection of what Mr. Malik told her during this conversation as she remained steadfast in her evidence on the topic. 

[617]        The Crown submits that were Ms. D fabricating this evidence, she could have crafted a much simpler story than the one involving Ms. Cudail.  Importantly, she also made an almost contemporaneous notation in her journal about the conversation.  With respect to Mr. Malik’s submissions regarding her use of differing language such as “we finished 324” and “we finished these number, 322”, the Crown points to Ms. D’s explanation in her police statements that, in the first reference, she had been simply summarizing what had been said and had already told the police about “we had Air India crashed” during her first formal statement.  Ms. D also specifically denied any possibility that she had been mistaken about his saying “we had Air India crashed” and not “when”.  She had simply used a form of shorthand in her journal.

[618]        The Crown submits that Ms. D’s explanation about only being concerned about Ms. Cudail during the conversation with Mr. Malik demonstrates her credibility and truthfulness.  Had Ms. D been lying about this conversation, it is more likely that she would have stated that she was shocked and hurt that Mr. Malik had admitted killing so many people.  Her evidence, therefore, enhances her credibility as she would not otherwise have built in this obvious anomaly.  In addition, the Crown submits that the evidence of Mr. Cudail supports Ms. D, and that her evidence of Mr. Malik’s demeanour during the conversation is another factor to be considered in relation to her credibility concerning this conversation.

[619]        The Crown concedes that there is an inconsistency in Ms. D’s trial evidence regarding whether she left the school with Mr. Malik after the Cudail Discussion.  However, it submits that Ms. D readily admitted that she had made a mistake in her direct examination when she was confronted with this inconsistency.  The Crown also submits that any inconsistency regarding the location of the papers upon which she had written following the conversation is also insignificant.

g.         The Anashka Conversation

[620]        The Crown concedes that the evidence called by Mr. Malik supports a finding that Mindy Bhandher was not in Canada from the last week of February to the first week of July, 1997.  In the face of such evidence, it accepts that Ms. D must have been incorrect with respect to the timing of the conversation. 

[621]        The Crown submits that the issue for the Court, therefore, is not when the conversation took place, but whether Ms. D overheard the conversation as alleged.  In that regard, it submits that Ms. D’s evidence should be preferred over that of Mindy Bhandher, a biased witness with a history of disreputable conduct and lying under oath.  Mindy Bhandher was highly motivated to lie on behalf of Mr. Malik and should not be given credit for being candid about his criminal history on the witness stand. 

h.         The Mr. B Discussion

[622]        The Crown submits that the evidence of Ms. D and Mr. B must be considered together and that the evidence of each corroborates that of the other.  They met only once and there is no evidence that they colluded in anticipation of giving evidence.

[623]        The Crown submits that, when read as a whole, Mr. B’s evidence is that it was “possible” that he had mentioned the incident with Mr. Malik and the suitcases in front of Ms. D.