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Marathon Air-India trial in hands of judge Highly regarded for his integrity, B.C. Supreme Court justice gave few clues how he will rule in the case of two men accused of killing 331 people, ROBERT MATAS writes

Highly regarded for his integrity, B.C. Supreme Court justice gave few clues how he will rule in the case of two men accused of killing 331 people, ROBERT MATAS writes

VANCOUVER

r 217 days of listening to evidence and legal arguments, Mr. Justice Ian Bruce Josephson withdrew yesterday to consider his verdict in the Air-India trial.

The British Columbia Supreme Court judge said he would return with his decision on March 16. He walked out without leaving any clues about which direction he may take.

The trial, by judge alone, heard chilling testimony alleging a conspiracy among a group of Canadians inspired by politics and religion to kill hundreds of people with homemade bombs. At times during the trial, the courtroom could barely contain the raw emotions of those who were touched by the deaths of 331 people.

Throughout it all, Judge Josephson remained inscrutable.

"It's absolutely astonishing how few clues he provided," said one of the Air-India lawyers, who wished to remain anonymous. "The best indication of what a judge is thinking is what he says spontaneously. But we didn't get any of that during the trial."

Vancouver businessman Ripudaman Singh Malik, 57, and Kamloops mill worker Ajaib Singh Bagri, 55, are charged with murdering the 329 people who died in a mid-air explosion aboard an Air-India flight on June 23, 1985, and the two baggage handlers killed in a bomb explosion 54 minutes earlier at Tokyo's Narita airport.

The twin bombings, unparalleled in aviation history, brought the most extensive and most expensive international investigation Canadian authorities have ever undertaken, involving more than 450 RCMP officers and staff. The disaster defined the identity of Canada's Sikh community for a generation.

The prosecution says Mr. Malik made arrangements for the bombs to be put on the planes, reserved airline tickets, and paid for them. Mr. Bagri is accused of helping to take suitcases with bombs to the Vancouver airport.

The prosecution was based entirely on circumstantial evidence. The court did not hear any insider testimony. The prosecution had no physical evidence linking the defendants to the crime. The two men did not testify.

Key witnesses for the prosecution said the men admitted their involvement in private conversations. Defence witnesses raised doubts about the credibility of those people, suggesting that the conversations at the centre of the prosecution case never took place.

After the trial adjourned, defence lawyer David Crossin said the case against Mr. Malik collapsed in court. He confidently predicted Mr. Malik would be found not guilty.

The prosecution was also confident. "We presented a strong case of substance before the court," said Geoff Gaul, spokesman for the prosecution. "We feel satisfied with the work we have done."

Despite the volatile atmosphere surrounding the case, civility remained paramount in Judge Josephson's courtroom. Those who know him say his approach reflects his personality. He sees things intellectually. He does not like flamboyance.

"He is the ideal person to have a trial like [the Air-India trial]," Mr. Justice Wally Oppal of the B.C. Court of Appeal, said in an interview. "He knows the law well; he's a person who deals with matters calmly and dispassionately. Fairness and patience are the two qualities required in that case, and he clearly has that."

His style reflects his experience of 29 years on the bench after a relatively short time as a lawyer advocating on behalf of clients.

Judge Josephson practised law for six years in southeast B.C. before his appointment in 1975 as a judge in Provincial Court. The announcement of his appointment startled his colleagues. He was only 30, with limited experience as a lawyer and years younger than most others on the bench.

He moved up to associate chief judge of the Provincial Court in 1985 and became chief judge in 1988. But his tenure at the top was short, causing speculation about rivalries in the backrooms of the judiciary. He was transferred to County Court in the Vancouver suburb of New Westminster in 1989, and then to the Supreme Court of British Columbia in 1990.

Lawyers who have appeared before him in the Air-India case and other cases say he is a perceptive, well-organized judge who understands legal arguments quickly. He has an analytical mind and is knowledgeable about the law.

"A nice judge to work with: always with you and often half a step ahead. He may not agree with you, but he gets where you are going," said one lawyer who spoke on the condition of anonymity.

Some judges test their views against the evidence and legal arguments with probing questions during the trial. Judge Josephson's preference is to hear all available evidence from both prosecution and defence lawyers, and then sift through the material at the end of the proceedings. He lets counsel run their case as they see fit.

His reputation is as a "convicting judge," several lawyers said. "If he can follow a thread that comes to a conviction, and be assured it will withstand the scrutiny of the appeal court, he will convict," said a lawyer who, like others interviewed for this article, did not want his name published.

But he is also highly regarded for his integrity. "If there is a reasonable doubt, no matter how difficult it may be, he has the intellectual fibre to bring in a not-guilty verdict," lawyer Leigh Harrison said.

Judge Josephson has issued rulings during the pretrial and trial proceedings in the Air-India case that provide a glimpse into his thinking. They are far from offering a solid basis for placing bets on the outcome of the trial.

Some rulings kept out evidence that prosecutors felt would have helped their case. Others opened the way for evidence the defence believed was inadmissible.

On three occasions, he ruled that actions by the Canadian Security Intelligence Service and Crown prosecutors had violated Mr. Bagri's right to a fair trial under the Charter of Rights and Freedoms.

He has also issued rulings that could give comfort to the prosecution. He accepted as evidence an unedited version of a hate-filled speech by Mr. Bagri. The speech supports the inference that Mr. Bagri had a strongly held motive "to take part in a conspiracy to place bombs on the national airline of India," Judge Josephson said in June, 2002.

Earlier this year, in what has been described as a turning point in the trial, Judge Josephson decided a witness was feigning memory loss about statements she had made to authorities that incriminated Mr. Bagri. He accepted an account of her statements from CSIS, although the witness said she did not remember making them.

The judge did not reveal whether he believed the witness's incriminating statements were true. "Their ultimate reliability will be determined at the end of the trial," he said.

How will he finally decide on guilt or innocence? The law does not set out rules on how a judge is ultimately to decide a case. Among the factors he may consider are the demeanour of a witness, prior statements inconsistent with testimony, whether a witness appears to have an axe to grind and whether reliable corroborating evidence is available.

Inevitably, it may also depend on the judge's gut feelings. "Above all, it comes down to a judge with common sense, who is not swayed by any extraneous matters," Judge Oppal said.

Chronology of case

June 23, 1985 -- A bomb explosion in Tokyo's Narita airport kills two people; 54 minutes later, a mid-air bomb explosion aboard Air-India Flight 182 kills 329 people.

Nov. 6, 1985 -- The RCMP raid homes of seven suspects; police are ready to lay charges, but Crown prosecutors decide the likelihood of conviction is slim.

Feb. 8, 1988 -- British Columbia auto mechanic Inderjit Singh Reyat is arrested in England and charged with helping to make the bomb that exploded in Japan.

May 10, 1991 -- Mr. Reyat, convicted of manslaughter, is sentenced to 10 years; RCMP wind down the Air-India investigation.

Oct. 15, 1992 -- Alleged Air-India mastermind Talwinder Singh Parmar is killed by police in India. He was not charged in the case.

June 1, 1995 -- The RCMP restart the investigation.

Oct. 15, 1997 -- A woman who will become a key witness in the case against Ripudaman Singh Malik begins talks with authorities about allegations that Mr. Malik was involved in immigration fraud, mismanagement of a Sikh parochial school and misuse of government grants. Six months later, the witness tells authorities Mr. Malik admitted to her that he was involved in the Air-India disaster.

October, 2000 -- A man living in the United States who will become a key witness against Ajaib Singh Bagri agrees to appear at trial in Canada after he is offered $300,000 (U.S.) to testify about five conversations in which he says Mr. Bagri incriminated himself.

Oct. 28, 2000 -- Mr. Malik and Mr. Bagri are arrested for murder in the deaths of 331 people killed by bomb explosions in Japan and aboard the Air-India flight.

June 5, 2001 -- Mr. Reyat is charged in bomb the explosion on the Air-India flight.

Nov. 15, 2002 -- Air-India suspect Hardial Singh Johal, 55, dies of natural causes. He allegedly stored the suitcases with bombs in the basement of a Vancouver school. He was not charged in the case.

Feb. 10, 2003 -- Mr. Reyat pleads guilty to manslaughter for the deaths aboard the Air-India flight and is sentenced to five years in prison.

April 28, 2003 -- The trial begins.

Dec. 3, 2004 -- The judge withdraws to consider the verdict.

March 16, 2005 -- Judge to deliver verdict.

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