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'These are agonizing decisions'

Deliberating cases such as Air-India a lonely process, judge's friend says

The Globe and Mail, March 19, 2005

Vancouver — The British Columbia Supreme Court judge who presided over Canada's longest and most complex criminal trial has made tough decisions before, but none more controversial than his verdict in the Air-India case.

For more than half his 60 years, Mr. Justice Ian Bruce Josephson has been presiding over lengthy and closely watched cases.

He was the judge in the case of the 1995 standoff at Gustafsen Lake in the B.C. Interior, when a group of natives held police at bay for several weeks over land issues, and his sentencing of the 13 men involved was roundly criticized by some native leaders who wanted a public inquiry.

But that 10-month trial was nothing compared with the two years Judge Josephson spent listening to witnesses and experts in the terrorism trial arising from the Air-India bombings in June of 1985. The trial, which was held before judge alone, ended Wednesday with not-guilty verdicts for the two men accused of murdering 331 people, including 329 on Air-India Flight 182.

Judge Josephson began deliberating the charges against Ripudaman Singh Malik and Ajaib Singh Bagri in December, spending long hours in his office going over the stacks of notes he took during the trial.

Mr. Justice Wally Oppal of the B.C. Court of Appeal said he had a beer with his colleague five days before the verdict was issued.

"We didn't talk about the case, but the public should know these are agonizing decisions," Judge Oppal said in an interview. "Many times, judges come to court at 3 in the morning because they can't sleep.

"The most telling aspect of the job is the loneliness of it. You can't share the pressure with anyone and you just have to do it on your own.

"Whether you agree with the decision or disagree, the people who make them go through a lot of anxious reflection before they decided these cases. We know our decisions affect people forever."

Former B.C. Supreme Court judge Thomas Berger said that writing the judgment after a long trial helps the opinion form. He recalled that when he was on the bench, he once walked into the office of a senior colleague who was writing a judgment. "I asked him how he was going to decide and he kept on writing and said, 'I can't wait to see how this turns out.' "

Douglas Schmeiser, a former law professor who taught Judge Josephson at the University of Saskatchewan, said the Air-India verdict was undoubtedly a difficult one at which to arrive. "He would obviously be aware of the fact that some people would not like his decision," Mr. Schmeiser said.

During the trial, Judge Josephson, who has been on the bench since he was 30, kept tight control over his courtroom, which had been specially built for the trial. He rarely bantered with lawyers and once ordered a recess when a prosecutor made what the judge considered a "gratuitous" remark in calling a witness an "idiot."

Despite his curt demeanour, Judge Josephson, who was the chief judge of B.C. Provincial Court before his 1990 appointment to the Supreme Court, has also shown a compassionate side and demonstrated his ability to balance justice with forgiveness.

Four years ago, he gave a teenaged killer the mandatory life sentence for her role in the murder of an elderly woman. But he lowered the parole eligibility for the killer after learning about her childhood poverty, neglect and abuse.

Stewart Enderton, a retired judge and friend of more than three decades, said his colleague grasps complex legal issues quickly. He remembers how Judge Josephson was a fresh law-school graduate in 1968 when he asked for an articling position at Mr. Enderton's firm in Nelson, 650 kilometres east of Vancouver.

"One aspect that has served him well in the past, and helped him now, is he is very well organized. You have to be for a case like that," Mr. Enderton said of the Air-India trial.

"He was there to do the legal thinking and not get bogged down in the tragedy aspect of it. He didn't lose his usefulness and he made the tough calls."

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