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Where's the justice? There is justice

A two-decades-old case with the best evidence long destroyed by agents and bureaucrats of the victims' own government; a passel of disreputable witnesses motivated by naked self-interest, few of whom could be relied upon to accurately report even the time of day; an alert group of surveillance-aware, careful suspects from an immigrant community that once was largely impenetrable: That's what made up the Air-India prosecutorial case.

No wonder it collapsed in ruins yesterday, a few months shy of 20 years after Air-India Flight 182 blew up over the Atlantic Ocean off the coast of Ireland, killing all 329, most of them Canadians, who were aboard.

It might seem, at first blush, to be a monumental failure of this country's criminal justice system.

And there was failure, but it came in the months immediately before and after the bombing and chiefly at the hands of the then-rookie Canadian Security Intelligence Service, which had been conducting electronic surveillance of the late Talwinder Singh Parmar, the man acknowledged as the mastermind of the bombing plot, and then systematically destroyed the evidence almost as fast as it came in.

All but 54 of the 289 tapes made of calls to and from Mr. Parmar's home were being routinely erased, even after the bombing, while CSIS brass continued to stall requests from the Royal Canadian Mounted Police for help. Most of those tapes were never transcribed properly, let alone verbatim.

CSIS came under scrutiny two years ago, when Michael Code, one of the lawyers for Ajaib Singh Bagri, successfully argued before Mr. Justice Ian Bruce Josephson that the agency's conduct constituted state negligence, and that because Mr. Bagri was only infrequently mentioned on the tapes, and then only peripherally, they would have helped prove his innocence, and that because they had been erased, he was handicapped in offering the robust defence guaranteed by the Canadian Charter of Rights and Freedoms.

It was a telling ruling -- not because it proved pivotal in the result, but because it spoke so directly to the sow's ear that was the Crown's case against Mr. Bagri and his co-accused, Ripudaman Singh Malik, and the long, hard road that would be the prosecutors' path in trying to turn this thing into anything resembling the proverbial silk purse.

The Crown's theory was that Mr. Bagri was involved in the Air-India conspiracy by taking the two bomb-laden suitcases -- one downed Flight 182, the other exploded 54 minutes earlier in the baggage handling area of Tokyo's Narita airport and killed two Japanese baggage handlers -- to the Vancouver airport. The evidence against him consisted of motive, testimony of two key witnesses (Mr. C and Ms. E) about allegedly incriminating statements, and evidence of his association with Mr. Parmar.

With Mr. Malik, the Crown's theory was that he organized and financed the entire operation, with the core of the case against him depending on an alleged confession he made to a former employee and friend, one Ms. D.

To say that Judge Josephson found these three critical witnesses -- Mr. C and Ms. E and D -- not credible is to monumentally understate his findings.

Mr. C received $300,000 (U.S.) from the RCMP, ostensibly to provide him with the funds for security, but practically speaking, for his testimony at trial -- and, on the very eve of his testimony, he tried to bargain himself another $200,000.

He was an acknowledged member of the extremist Deshmesh Regiment who had assisted two fugitives to escape from New Orleans after they attempted to assassinate a visiting Indian dignitary; he became an FBI informant largely to secure his immigration status in the United States; in addition, the judge found, his evidence was evasive and internally inconsistent. He is "an individual driven by self-interest."

Ms. E fared little better. Originally, she told a CSIS agent that the night before the bombings, Mr. Bagri appeared at her home unannounced, seeking to borrow her car and saying that although he was going to the airport, only the bags would be making the trip.

But at trial, she "feigned" memory loss, Judge Josephson found.

Ms. D, despite cloaking herself as someone who looked up to Mr. Malik and dearly loved him still, was motivated by animus and a desire for revenge. The judge found that in one instance, she "created a false confession" from Mr. Malik, that in another, she drew freely from a book about the crash and other information widely in the public domain, and that in a third, her evidence was utterly "unsafe" to rely upon.

And those are just the most important witnesses. Others, who might have offered corroboration, were also found lacking, including one man who claimed to have come forward to the police because of his "conscience," but who took 19 years to do so -- and did so immediately after threatening to physically harm Mr. Malik for allegedly leading him to financial ruin.

They were, in short, a witch's brew of nightmarish witnesses, a group prone to glib, florid and sometimes bald-faced lies when caught in inconsistencies.

As Judge Josephson wrote in the final conclusion of his 218-page reasons yesterday, "I began by describing the horrific nature of these cruel acts of terrorism, acts which cry out for justice. Justice is not achieved, however, if persons are convicted on anything less than the requisite standard of proof beyond a reasonable doubt.

"Despite what appears to have been the best and most earnest of efforts by the police and the Crown, the evidence has fallen markedly short of that standard."

Given the anguish his decision is bound to inflict upon the families of those who died, given the outrage that swirling around the sight of Mr. Bagri and Mr. Malik walking free after all this time and all this money, this was a decision, as someone smarter and better-positioned than me remarked yesterday, that was born in enormous judicial courage.

Anyone reading the judge's reasons would have to agree, however sadly: You wouldn't want to convict the guy next door of breaking a window in your house on the testimony of this shabby bunch.

Where's the justice, was the cry yesterday. The answer is, this is justice -- accused persons being acquitted because the case wasn't made out against them by the Crown. A lawyer I know remembers a bar admissions course taught by the legendary Eddie Greenspan, who spoke of his first murder trial, and walking into the courtroom to see his client in the prisoner's box. "You don't think, 'Gee there's an innocent man' " -- not even a defence lawyer.

But that's who sits in the prisoner's boxes of the nation, and thank God for it.

cblatchford@globeandmail.ca

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