Ref:
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/03/2005BCSC0350.htm
IN THE SUPREME COURT OF BRITISH COLUMBIA
HER MAJESTY THE QUEEN AGAINST RIPUDAMAN SINGH MALIK and AJAIB SINGH BAGRI
Before: The Honourable Mr. Justice Josephson
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XIII. SUMMARY
A. Introduction
[1251] In the early morning hours of June 23, 1985, two bomb-laden suitcases detonated half a world apart. The first exploded at the airport in Narita, Japan while in the process of being transferred to an Air India aircraft. Fifty-four minutes later, a second bomb exploded aboard Air India Flight 182 travelling en route to London and then India. The Kanishka crashed into the Atlantic Ocean almost 200 miles off the coast of Ireland from an altitude of 31,000 feet. All 329 persons aboard Air India Flight 182 perished, as did two baggage handlers in Narita.
[1252] The waters off the coast of Ireland revealed a surrealistic scene of devastation, with floating bodies being retrieved by heroic individuals in dangerous circumstances. The long-lasting and significant emotional impact of those rescue efforts was reflected in the faces of those who gave evidence in this trial, almost twenty years later. The emotional impact on family members and friends of the victims remains, no doubt, beyond measure.
[1253] The Crown theory is that both suitcases began their journey on the same day from the same location, being checked in at Vancouver International Airport. While the two flights containing the suitcases departed in opposite directions, both were destined for Air India flights.
[1254] Words are incapable of adequately conveying the senseless horror of these crimes. These hundreds of men, women and children were entirely innocent victims of a diabolical act of terrorism unparalleled until recently in aviation history and finding its roots in fanaticism at its basest and most inhumane level.
[1255] None of the remnants of the explosive device which brought down the Kanishka was recovered. Such remnants, however, were recovered from the blast scene in Narita. Thorough and exacting forensic evidence was a significant factor leading to the manslaughter conviction of Inderjit Singh Reyat for his part in the construction of that explosive device. During the course of this trial, he pled guilty to the same offence for playing a similar role in relation to the Air India Flight 182 explosion.
[1256] Now deceased, Talwinder Singh Parmar is generally acknowledged by both Crown and defence to have been the leader in the conspiracy to commit these crimes.
[1257] This trial focused primarily on whether it has been proven beyond a reasonable doubt that Ripudaman Singh Malik and Ajaib Singh Bagri were members of that conspiracy. Despite the horrific nature of the alleged crimes, there can be no lowering of the standard of proof from that required in any criminal trial.
B. Tickets and Check-in of Baggage
[1258] On June 19, 1985, a male Sikh contacted Canadian Pacific Airlines seeking reservations for two passengers on separate flights. The first reservation was for CP Air Flight 003 departing Vancouver for Narita on June 22, 1985, with a connecting flight from Narita to Bangkok on Air India Flight 301. The second reservation was for a flight from Vancouver to Delhi. Taking into account modifications made to the flight schedule later that day, the final itinerary 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, England. The passenger was wait-listed for this second portion of the trip.
[1259] Both tickets were picked up and purchased with cash by the same individual on June 20, 1985. The purchaser requested various modifications to the tickets, including that the name on the west-bound ticket be changed to L. Singh and that on the east-bound ticket to M. Singh.
[1260] On the morning of June 22, 1985, the holder of the M. Singh ticket presented himself at the CP Air check-in counter at the Vancouver Airport and sought to have his suitcase interlined through to Delhi, notwithstanding that he was not confirmed on the Air India 181/182 leg of his trip. Following an argument regarding the status of the M. Singh flights and with a line-up of customers awaiting service, the CP Air agent relented and tagged the M. Singh suitcase to interline through to Delhi. The M. Singh ticket was not collected prior to boarding and the assigned seat remained empty until occupied by another passenger.
[1261] Later that same day, the L. Singh bag was checked onto CP Air Flight 003 and was interlined through to Bangkok on Air India Flight 301. The L. Singh ticket was also not collected prior to boarding and the assigned seat remained unoccupied throughout the duration of the flight.
C. Forensics
[1262] Following the in-flight disintegration of Air India Flight 182, most of the aircraft came to rest on the ocean floor almost 7,000 feet below the surface. Despite a number of recovery and salvage operations, only 5% of the aircraft was ever recovered. Underwater images of the unrecovered wreckage were used to create simulated pieces of the aft fuselage which, together with the recovered wreckage, were mounted in a partial reconstruction of the aircraft at a warehouse in the Lower Mainland. That reconstruction was relied upon as an aid to understanding the challenging technical expert evidence regarding the precise location of the explosive device that precipitated the destruction of Air India Flight 182.
[1263] It is incumbent upon the Crown to establish that that device had been located within the baggage area containing the M. Singh bag originating in Vancouver. Crown witness, Professor Christopher Peel, offered expert opinion evidence that it had been. Defence expert, Dr. Edward Trimble, supported in part by Mr. Frank Taylor, testified to the contrary, placing the device in an area of the aircraft containing luggage loaded in Toronto.
[1264] The difference between the two bomb locations identified by these experts amounts to a distance of only some five feet, remarkably small considering the size of the aircraft and the small percentage of it recovered. However, it is a crucial difference as the Crown’s theory is lost if a reasonable doubt arises in that regard.
[1265] The experts testified in detail with respect to the damage sustained by various areas of the aircraft and the implications of that damage for their respective bomb locations. For reasons fully set out in the Reasons for Judgment, I find as a fact that the explosive device was located in the baggage area containing the M. Singh bag.
[1266] Dr. Trimble has impressive expertise in aircraft accident investigation. However, the cause of the crash and the general location of the explosive device that precipitated it, matters more typically within his experiential domain, are not disputed here. In pinpointing the precise location of the device within the aircraft, Professor Peel’s specialized expertise in physical metallurgy and the effects of internal detonations on the structure of aircraft is more suited and his opinion, therefore, carries more weight. Professor Peel’s opinion also provides a more consistent and cohesive picture of the effects and location of the explosive device than does that of Dr. Trimble.
[1267] Furthermore, Professor Peel’s evidence is consistent with other evidence at trial, as also set out in the Reasons for Judgment, leading to an overwhelming inference that the explosive device aboard Air India Flight 182 originated in Vancouver as part of one conspiracy which also included the detonation of the explosive device at Narita. That other evidence includes the fact that the M. Singh and L. Singh tickets were booked at the same time by one individual, and were also picked up and paid for together. Those tickets were used to check in unaccompanied suitcases at Vancouver Airport on June 22, 1985. 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 carried the L. Singh bag. Forensic evidence conclusively linked the Narita bomb to Mr. Reyat. That the M. Singh bag, in all these circumstances, could have contained something other than the explosive device which downed Flight 182 defies both logic and common sense.
[1268] Consequently, when the evidence is considered as a whole, I am satisfied beyond a reasonable doubt that the explosive device was located aboard Air India Flight 182 in the baggage area containing the M. Singh bag.
D. Historical Context
[1269] Evidence of the political and religious issues facing Sikhs in India and abroad in the early to mid-1980s was led by the Crown through Dr. Paul Wallace.
[1270] The Golden Temple complex in Amritsar is the single most important representation of the Sikh faith in the world. Under heightened tension between Hindus and Sikhs in India, the Indian army launched an attack on the Golden Temple complex in June, 1984 in a military operation known as Operation Bluestar. The Indian army entered the Golden Temple complex and, upon 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.
[1271] 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.
[1272] 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.
[1273] 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.
[1274] Flowing from this backdrop, it is the theory of the Crown that the resulting outrage experienced by Sikh militants provided the motive for the alleged offences.
E. Talwinder Singh Parmar
[1275] Talwinder Singh Parmar, an un-indicted co-conspirator in this case, immigrated to Canada in May, 1970. He was considered a priest in the practice of the Sikh religion and was Chairman of the Babbar Khalsa, a society incorporated in British Columbia in 1984 by Mr. Parmar, Mr. Bagri and others. Among the stated purposes of the society were the promotion of the character of Sikhism and the struggle for a Sikh homeland.
[1276] Mr. Parmar was killed in India on October 14, 1992.
F. Inderjit Singh Reyat
[1277] Inderjit Singh Reyat was convicted after trial in the British Columbia Supreme Court in 1991 of two counts of manslaughter with respect to the deaths of the two Japanese baggage handlers 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.
[1278] In this trial, the bulk of the evidence comprising 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, thus obviating the necessity of hearing many months of complex and technical forensic evidence.
[1279] Mr. Reyat was added to the indictment in the present proceedings in June, 2001. On February 10, 2003, he pleaded guilty to a new indictment charging him with manslaughter in aiding and abetting in the construction of the explosive device which detonated and brought down Air India Flight 182.
[1280] 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 testified, did not elaborate as to who would be using the device or how it would be used. Upset with the Indian Government for its mistreatment of Sikhs, Mr. Reyat agreed to assist.
[1281] 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. Mr. Reyat was questioned extensively about the identity of Mr. X but professed to know little about him despite Mr. X having resided in his home for nearly a week. Mr. X has never been identified.
[1282] Mr. Reyat’s involvement in the procurement of components and the development of the bombs used in the conspiracy to blow up the Air India aircraft is not at issue in these proceedings. His 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.
[1283] 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.
[1284] Even the most sympathetic of listeners could only conclude, as do I, that his evidence was patently and pathetically fabricated in an attempt to minimize his involvement in his crime to an extreme degree, while refusing to reveal relevant information he clearly possesses. His hollow expression of remorse for his crime must have been a bitter pill for the families of the victims. If he harbours even the slightest degree of genuine remorse, he would have been more forthcoming.
G. The Case Against Mr. Malik
[1285] It is the theory of the Crown that Mr. Malik’s involvement 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 airport and his post-offence conduct.
[1286] The Crown called three primary witnesses against Mr. Malik who testified with respect to apparently inculpatory statements made by him. Those witnesses were:
(1) Mr. B;
(2) Mr. A; and
(3) Ms. D.
1. The Evidence of Mr. B
[1287] Mr. B’s evidence centred around a conversation he had with Mr. Malik in 1985 in which he asked Mr. Malik for financial assistance. He testified that Mr. Malik replied that he would assist him if he did a job for him, which he described as taking a suitcase to India to teach the Government of India a lesson. Mr. Malik told him that he would make the travel arrangements and have someone pick up the suitcase. Mr. B testified that he later found financial assistance elsewhere and informed Mr. Malik that he no longer needed his help. Mr. Malik then warned him on a number of occasions not to tell anyone about their conversation.
[1288] 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 had told him “The mishappening with Air India had taken place. If anyone asks you about it or questions you, let him [Malik] know”.
[1289] The cross-examination of Mr. B focused on his deteriorating relationship with Mr. Malik in the twelve years between the alleged conversations and the time he made his first report to the police on April 7, 1997.
[1290] Mr. B acknowledged that he and Mr. Malik first became financially intertwined in 1988 when Mr. B purchased a farm that he previously had 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 is reviewed in detail in the Reasons for Judgment, the dispute between the two culminated on April 7, 1997, a day when Mr. B threatened to assault and publicly embarrass Mr. Malik, after which he proceeded to contact the police and first report his 1985 conversations with Mr. Malik.
[1291] Despite these events, Mr. B claimed it was his conscience that 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. Surjit Singh Gill advised him “that one must disclose it”.
[1292] Mr. B also acknowledged that he had not mentioned having received threatening telephone calls the evening of the Air India explosion during a number of statements and interviews to the police and the Crown in 1997 and 1999. Mr. B was somewhat unclear when questioned about this further delay in reporting this information, stating that he was “a bit scared” and also that his memory may have been a problem.
2. The Evidence of Mr. A
[1293] Mr. A first spoke to the RCMP about this case in December, 2003 after Mr. B had completed his testimony. His evidence described a meeting he had with Mr. Malik outside the Ross Street Temple in 1984. This was the first occasion in which Mr. A had ever spoken with Mr. Malik, aside from simple greetings when purchasing religious items from Mr. Malik’s stall.
[1294] Mr. A drove to the Ross Street Temple that Sunday morning. He testified that hundreds of people were coming and going from the front of the Temple when he arrived and that he was immediately called over by Mr. Malik who was standing at his stall outside the main entrance of the Temple. Mr. Malik took him over to a fence by the side of the Temple and, becoming serious, stated that;
…the Government of India attacked Harimander Sahib [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.
[1295] Mr. A testified that he 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 Mr. 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.
[1296] The cross-examination of Mr. A focussed on the almost 20-year delay in reporting this incident to the police and the suggestion that Mr. Malik’s stall was never located outside the Ross Street Temple in 1984. Further cross-examination focussed on his knowledge of the evidence of other witnesses who had already testified at the trial, particularly that of Mr. B, his financial circumstances and his declaration of bankruptcy in July, 2003.
[1297] Mr. Malik called evidence from the City of Vancouver regarding 1986 renovations to the Ross Street Temple. This evidence established that the Ross Street Temple had been surrounded by a ravine in 1984 and that the incident alleged by Mr. A could not possibly have happened as he described it. A number of witnesses also testified that Mr. Malik’s stall was located in the basement of the Ross Street Temple prior to the completion of the renovations in 1986.
3. The Evidence of Ms. D
[1298] The evidence of Ms. D is at the heart of the Crown’s case against Mr. Malik. It is the Crown’s theory that she and Mr. Malik were involved in an intense emotional relationship and engaged in a series of conversations 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. This incident has been referred to as the “Newspaper Confession”.
[1299] Ms. D was hired by Mr. Malik to supervise the Khalsa Pre-school in September, 1992 and worked there until she was ultimately fired by Mr. Malik on November 1, 1997. She was clearly dedicated to her job at the pre-school, devoting long hours and many weekends for which she was not compensated.
[1300] Ms. D described a deep relationship of love and respect that developed between her and Mr. Malik over the years. She, in essence, described a love affair that was never physically consummated. On the witness stand, she claimed to still love Mr. Malik and stated that her evidence at trial was a betrayal of that love and her promises to him.
[1301] The core of Ms. D’s evidence against Mr. Malik revolved around a confrontation she claimed to have had with him in late March or early April, 1997 during which, according to the Crown’s theory, he confessed his role in the alleged conspiracy. After learning from Mrs. Reyat about the contents of an article in the Indo-Canadian Awaaz newspaper that suggested that Mr. Malik and others might be arrested for their role in the Air India bombing, Ms. D, emotionally devastated, confronted Mr. Malik about the contents of the article. She claimed that her thoughts turned to Mr. Malik and how she could possibly help him, asking him “Are we in trouble?”
[1302] Ms. D testified that Mr. Malik subsequently revealed the intimate details of the roles that he and others had played in the conspiracy. He explained that each person had been assigned a task and he had been generally responsible for overseeing them. Mr. Malik told her that he had booked two airline tickets at the downtown office of Canadian Airlines. He explained the minute details of the bookings and his conversation with the ticket agent about arranging to have the tickets picked up. He then described how Daljit Singh Sandhu had picked up the tickets, including details about his interaction with the ticket agent, changes he made to the bookings and his appearance that day.
[1303] Mr. Malik told Ms. D who had been responsible for delivering the bombs to the airport and described the roles that had been played by Mr. Reyat, Balwant Singh Bhandher and others.
[1304] Ms. D described Mr. Malik’s demeanour during the conversation as being soft-spoken, with sadness in his voice. 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 Ms. D 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.
[1305] Ms. D also testified about a conversation she had with Mr. Malik against the backdrop of the attempted suicide of a female student at the Khalsa School. In that conversation, she testified that Mr. Malik, drawing an analogy, said the words, “We had Air India crashed”.
[1306] Other matters regarding which she testified included the following:
(a) overhearing a conversation between Mr. Malik and Mindy Bhandher about an incident during which Mr. Malik had allegedly been looking at a diagram of an airplane with Mr. Parmar and Mr. Bagri;
(b) a discussion she had with Mr. Malik about his once asking Mr. B to take a suitcase onto a plane for him; and
(c) Mr. Malik telling her about meetings in Calgary and Seattle related to the planning of the bombings.
[1307] In addition, Ms. D testified about the apparent breakdown of her relationship with certain executive members of the Khalsa School, allegations that she was a CSIS agent and the series of events that led to her being fired from her position. Ms. D reviewed the threats and harassment that she was subjected to after leaving the school and described how her entry into the witness protection program has had a massive negative impact on her life.
[1308] Ms. D was cross-examined extensively about her relationship with Mr. Malik and the circumstances surrounding the various conversations she claimed to have had with him. The thrust of the cross-examination was to the effect that her evidence about their relationship was false and that she was a vindictive and vengeful ex-employee who had been out to harm Mr. Malik’s reputation from the time she had first contacted the authorities.
[1309] Former CSIS agent Mr. Nick Rowe testified about his dealings with Ms. D in the fall of 1997, as did Cpl. Best and S/Sgt. Schneider of the RCMP. Ms. D testified that her sole purpose in contacting CSIS was to attempt to determine who was alleging that she was a CSIS spy. The thrust of their evidence, however, was that Ms. D was eager to provide extensive negative information about Mr. Malik in many areas and that she willingly assisted them during this time. Ms. D repeatedly claimed to have little recollection of her dealings with CSIS and the RCMP during this time period.
[1310] As noted above, the Crown also made submissions with respect to Mr. Malik’s motive, association with others alleged to have been involved in the conspiracy and post-offence conduct.
[1311] The association evidence against Mr. Malik was limited. The Crown sought to have a negative inference drawn from a meeting between Mr. Malik, Mr. Parmar and Hardial Singh Johal which took place at Mr. Parmar’s house during the evening of June 18, 1985. The motive evidence against Mr. Malik arose from the statements he was alleged to have made to the three witnesses whose evidence was reviewed above.
[1312] Finally, the evidence of post-offence conduct related to two bodies of evidence:
(1) financial assistance provided to the Reyat family in the 1990s; and
(2) an attempt to influence a witness, Joginder Singh Gill, to change his evidence concerning his unsuspecting role in the June 4, 1985 test blast.
4. Conclusions Regarding Mr. Malik
[1313] While mindful of the requirement to consider the entirety of the evidence against Mr. Malik, the case against him turns on an assessment of the credibility of the three main witnesses called by the Crown. My findings in that regard are as follows.
a. Mr. B and Mr. A
[1314] I conclude that Mr. B is not a credible witness for these reasons:
1. his evidence of the suitcase conversation with Mr. Malik contains information easily gleaned from the public domain;
2. he did not reveal this conversation for some 12 years after the event;
3. he harboured a powerful motive for revenge after experiencing years of what he perceived to be ongoing and significant deception by Mr. Malik leading to his financial ruin;
4. almost immediately after threatening harm to the person and reputation of Mr. Malik, he first disclosed the conversation to police;
5. he was not truthful when he testified that his motive in coming forward then was his conscience. That rather obvious deception was calculated to enhance his credibility;
6. in the past, he has provided false information under oath when it advanced his own interests;
7. his evidence contained internal inconsistencies; and
8. his evidence conflicted to some degree with that of Narinder Singh Gill and Ms. D.
[1315] Accordingly, I do not accept his evidence describing his conversations with Mr. Malik.
[1316] I also find that Mr. A was not a credible witness. The circumstances in which he came forward are highly suspicious. Having informed no one of his encounter with Mr. Malik for some 19 years, he came forward only after the evidence of Mr. B was related to him by his wife from a newspaper account. The incident he described in his evidence is very similar to that described by Mr. B. That Mr. Malik would approach him so directly in a public place to recruit him to carry a bomb laden attaché case to the airport is implausible in the extreme. He was a near stranger to Mr. Malik and Mr. Parmar. There was little reason to believe that he was a supporter of their cause or could be entrusted with information that, if disclosed, could completely frustrate their plans. There was no preliminary discussion to ascertain wherein his sympathies might lie with respect to their cause, nor any preliminary questions before disclosing the plan as to whether he might be willing to assist in some fashion.
[1317] Mr. A’s evidence is also impossible. The evidence is overwhelming that the area where he said this 1984 conversation took place simply did not exist until 1986. There was no evidence to corroborate his that Mr. Malik ever set up his stall outside the Ross Street Temple prior to the renovations.
b. Ms. D
[1318] While assessing the manner and demeanour of a witness as a test of credibility is an exercise fraught with risks, it rightfully remains one the factors to be considered. Ms. D had a positive manner and demeanour. She appeared energetic, intelligent, outgoing and had a pleasant manner, while exhibiting a strong will and determination. She revealed an excellent memory, relating vivid details surrounding certain events. However, she often resorted to claimed memory loss when pressed in cross-examination to explain apparent contradictions in earlier statements. Apart from occasional frustration, she appeared largely unfazed by the strong attack mounted in cross-examination.
[1319] Surprising, however, were her adamant protestations of ongoing love, respect and longing for Mr. Malik, a man whom she claims admitted his complicity in the senseless mass murder of hundreds of complete innocents. When one adds to that her evidence of his treatment of the student Cudail, his countless acts of fraud and, ultimately, his cruel treatment and firing of her from a position that was a central part of her life, that surprise edges towards incredulity.
[1320] Either this mature, intelligent and strong willed person has abandoned all she believes in because of overwhelming and unreasoning emotions of the heart, or she is misleading the Court by claiming to be his loving confidante in an attempt to blunt the inevitable credibility attack based on animus towards Mr. Malik. The latter would also better provide some explanation for the apparent unlikelihood of Mr. Malik having chosen to provide her with such a detailed confession.
[1321] Examining Ms. D’s evidence with reference to the other evidence in this case, I find that she has not been truthful with the Court and that I am unable to rely on her evidence. Some of the reasons for this conclusion are as follows:
1. Ms. D’s protestations of love and respect for Mr. Malik throughout 1996 and 1997 lack credulity;
2. Ms. D’s evidence about her motives and purpose in approaching and meeting with CSIS and the RCMP and of her strong ongoing emotional ties to Mr. Malik is undermined to a significant degree by other evidence in the trial;
3. Ms. D was unequivocal during a police interview on November 7, 1997 that Mr. Malik had not made any references to Air India other than his comment during the Cudail Discussion. A number of months later, she first revealed the details of the Newspaper Confession;
4. Ms. D’s explanation for that delay, claiming that the confession was “not evidence”, lacks credulity in light of her having disclosed other similar conversations with Mr. Malik;
5. The core details of the conspiracy that Ms. D testified Mr. Malik revealed to her were in publications in the public domain, with one minor exception;
6. The migration of factual errors from those publications to the information she attributed to Mr. Malik leads to no other reasonable inference than that Ms. D crafted a false confession from those publications;
7. Ms. D’s statements to authorities regarding the apparent reference to the Newspaper Confession in her journal altered when it became apparent to her that the journal reference pre-dated publication of the newspaper article which she claimed led to that confession. Her evidence that her journal entry must relate to another remarkably similar confrontation with Mr. Malik is not believable;
8. The inconsistencies in Ms. D’s accounts of Mr. Malik’s reference to Air India during the Cudail Discussion make it unsafe to rely on this evidence;
9. Regarding the Anashka conversation, the combination of late disclosure, evolving versions of the story, inconsistencies, lack of recall, and clear evidence that the incident could not have happened during the time period she described, leads to the conclusion that it did not occur as she described;
10. Ms. D first revealed her conversation with Mr. Malik about Mr. B after she had met and spoken with the latter, and was inconsistent with respect to what Mr. Malik had told her regarding the contents of the suitcase.
[1322] The concerns regarding the Newspaper Confession alone, which are addressed more fully in the Reasons for Judgment, raise serious issues with respect to her veracity and motivations. Having found that Ms. D was not truthful with respect to the core of her testimony against Mr. Malik, it would be wholly unsafe to rely on her other evidence tending to incriminate him.
[1323] Having made these findings regarding the credibility of the main witnesses against Mr. Malik, there can be no conclusion other than that the Crown has not proved its case against him beyond a reasonable doubt. Even if I were to accept all of the Crown’s submissions regarding the inferences to be drawn from the balance of the evidence in this case, there is simply no evidence tending to point to the role that Mr. Malik may have played in the conspiracy to place bombs on Air India planes. It follows that the Crown has not proved its case against Mr. Malik beyond a reasonable doubt with respect to his being a member of the alleged conspiracy or a party to the alleged offences and, accordingly, I find him not guilty on each count of the Indictment.
contd...
