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  
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disclose the identities of those witnesses not be  
published in any document or broadcast in any way.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.  
R. v. Malik and Bagri  
Page 2  
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:  
Place of Trial:  
M.R. Shapray  
C.S. Judd  
Vancouver, B.C.  
R. v. Malik and Bagri  
Page 3  
Dates of Trial:  
YEAR/MONTH DAY(S)  
2003  
April  
May  
June  
28, 29 30  
5, 6, 7, 8, 12, 13, 20, 21, 22, 23, 28  
20, 25  
September  
October  
3, 5, 8, 9, 10, 11, 12, 15, 17, 18, 19, 24,  
1, 6, 10, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28,  
29, 31  
November  
December  
3, 4, 5 6, 10, 12, 13, 14, 17, 18, 19, 20, 21, 24,  
25, 27  
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  
March  
4, 9, 12, 13, 16, 17, 18, 27  
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  
3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 31  
2, 3, 4, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22,  
23, 24, 25, 28, 29, 30  
May  
June  
July  
August  
September  
October  
November  
5, 6, 7, 8, 12, 13, 14, 15, 16, 17, 22  
11, 12, 13, 17, 18, 19, 20, 23, 24, 25, 26, 27 30  
7, 8, 20  
1, 19, 20, 21, 22, 25, 26, 27, 28, 29  
1, 2, 3, 4, 5, 8, 9, 10, 12, 15, 16, 22, 23, 24,  
25, 26, 29, 30  
December  
1, 2, 3  
R. v. Malik and Bagri  
Page 4  
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  
R. v. Malik and Bagri  
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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  
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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  
R. v. Malik and Bagri  
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c. Mr. B  
........................................233  
2. Position of the Crown.............................238  
a. Jagdev Singh Dhillon ..............................238  
b. Mr. A  
c. Mr. B  
........................................239  
........................................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  
R. v. Malik and Bagri  
Page 8  
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  
R. v. Malik and Bagri  
Page 9  
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  
R. v. Malik and Bagri  
Page 10  
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  
Relationship with the FBI ........................455  
i.  
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  
Character ....................................476  
Involvement in Criminal Activities...............476  
Immigration History..........................476  
Pursuit of Benefits..........................478  
The New Orleans Incident ......................480  
Becoming an FBI Informant .....................481  
i.  
ii. Bias and Self-interest...........................482  
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Page 11  
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  
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Page 12  
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  
b. Ms. E  
........................................598  
........................................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  
R. v. Malik and Bagri  
I. OVERVIEW  
Page 13  
[1] In the early morning hours of June 23, 1985, Air India  
Flight 182, carrying 329 people1, 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.  
1 List of passengers and crew on Air India Flight 182 attached as Appendix “A”  
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Page 14  
[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  
R. v. Malik and Bagri  
Page 15  
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  
R. v. Malik and Bagri  
Page 16  
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;  
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Page 17  
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.  
R. v. Malik and Bagri  
Page 18  
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  
R. v. Malik and Bagri  
Page 19  
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  
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Page 20  
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  
R. v. Malik and Bagri  
Page 21  
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  
R. v. Malik and Bagri  
Page 22  
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  
R. v. Malik and Bagri  
Page 23  
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  
R. v. Malik and Bagri  
Page 24  
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.  
R. v. Malik and Bagri  
Page 25  
[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  
R. v. Malik and Bagri  
Page 26  
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.  
R. v. Malik and Bagri  
Page 27  
[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.  
R. v. Malik and Bagri  
G. Loading of the Kanishka  
Page 28  
[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  
R. v. Malik and Bagri  
Page 29  
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.  
R. v. Malik and Bagri  
Page 30  
[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  
R. v. Malik and Bagri  
Page 31  
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:  
R. v. Malik and Bagri  
Page 32  
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  
R. v. Malik and Bagri  
Page 33  
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,  
R. v. Malik and Bagri  
Page 34  
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.  
R. v. Malik and Bagri  
IV. THE FORENSIC EVIDENCE CONCERNING AIR INDIA FLIGHT 182  
A. Background  
Page 35  
[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,  
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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,  
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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  
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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  
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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.  
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[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.  
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[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  
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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  
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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  
R. v. Malik and Bagri  
Page 44  
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”.  
R. v. Malik and Bagri  
Page 45  
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.  
R. v. Malik and Bagri  
a. Hole in the Aft Fuselage  
Page 46  
[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  
R. v. Malik and Bagri  
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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  
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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  
R. v. Malik and Bagri  
Page 49  
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  
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Page 50  
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:  
• the initial blast hole defined the forward edge of Target  
656 and the longitudinal crack ran aft along the bottom  
of Targets 307 and 74;  
• as the left side of the fuselage swung up, the bottom  
edge of Target 307 swung up and out with it;  
• a radial crack from BS 2020 forwards likely ran along the  
lower edge of Target 369 above the passenger floor and  
went up through the window belt aft of Target 369. This  
left Target 307 attached to metal missing in the  
reconstruction at its top edge and Target 74 along its  
aft edge;  
• a secondary crack ran forward along the top of Target 356  
to Target 656 under the passenger floor. Targets 307 and  
656 were attached to the fuselage only at the aft end of  
Target 307, much like a hinge; and  
• the final detachment of Target 307 occurred by downward  
tearing along the aft edge, following which Targets 307  
and 656 detached together by rotation in an outwards,  
upwards and aft direction.  
[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  
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portion of the longitudinal crack ran along the junction of  
Targets 307 and 320:  
• the crack running aft from the blast hole is aligned with  
the forward running crack, and both are straight in  
nature;  
• the fracture on the left edge of Target 320 is sinusoidal  
(wave-like), not gently folded downwards as represented  
on the simulated target in the reconstruction. It  
therefore mirrors the sinusoidal nature of the forward  
running longitudinal crack, and also matches the  
sinusoidal fracture edge on Target 307; and  
• the lack of heavy deformation on the left side of Target  
320 indicates that this is the edge to the primary crack.  
[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  
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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  
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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  
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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  
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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.  
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[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  
• Target 307 – Target 656 joins Target 307 at approximately  
BS 2060. The continuity of a crease running between the  
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two targets indicates that they were initially damaged as  
one piece and then separated in a secondary process.  
Both targets also exhibit signs of overpressure damage.  
Taken together, they indicate that there was clearly  
significant overpressure damage and deformation both at  
and aft of BS 2040. Target 656, however, exhibits more  
intense damage than does Target 307, suggesting it was  
closer to the blast.  
[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  
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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.  
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[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:  
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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:  
• the outboard ends of the three remaining beams are  
significantly more deformed than their inboard ends,  
which are close to their original position and remain at  
right angles to the passenger floor. Aligning the  
inboard end of the transverse beams to their original  
upright positions demonstrates that the upper outboard  
portions of the beams have been preserved in near  
vertical position and that it is the lower outboard  
portions at BS 2000 and 1980 that have been deflected  
forward;  
• the top edges of the transverse beams are flanged. The  
flanges at the outboard end of the beams at BS 2000 and  
1980 are bent in a manner consistent with pressure from  
an aft direction;  
• the passenger floor appears to have been pushed upwards  
in the region of BS 2020. There is a crack at BS 1980  
with bending upwards on either side, and the floor panel  
is severed at BS 1960. This pattern of damage is again  
consistent with an explosion at BS 2020;  
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• damage to neighbouring targets is wholly consistent with  
a bomb location of BS 2020:  
o Target 656 – While the beam at BS 2040 has detached  
from Target 1011, a remnant of the fuselage frame  
from BS 2040 remains attached to Target 656, and is  
bent strongly aft. This portion of deformed  
fuselage frame on Target 656 lay precisely below the  
heavily damaged and missing section of beam on  
T1011.  
o Target 26 – Target 1011 adjoins Target 26. The  
damage to Target 1011 mates up with the radial  
cracking and folding on the lower forward portion of  
Target 26.  
[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  
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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.  
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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  
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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.  
R. v. Malik and Bagri  
iii. Target 26 – Radiating Cracks  
Professor Peel described the concept of radiating  
Page 65  
[115]  
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  
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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  
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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  
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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  
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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.  
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[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.  
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[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  
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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  
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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.  
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Page 74  
[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  
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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  
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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  
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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:  
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• 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  
• outward curling of the fuselage skin on Target 40  
approximately between BS 1920 and 1980. He notes that it  
is surprising that there is a lack of similar deformation  
in the skin above the bulk cargo door which is of the  
same thickness.  
[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  
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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  
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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  
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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.  
[148]  
Target 653  
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.  
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[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  
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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  
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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  
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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  
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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.  
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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;  
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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;  
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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  
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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.  
[163]  
Targets 24 and 30  
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:  
• the aft wall was in generally good condition except for  
an area of localized inward deformation with dark  
coloration;  
• the upper length of the vertical post had deflected  
forward, while the vertical member of the base attachment  
bracket had been bent substantially aft; and  
• the outboard surface of Target 24 had sustained extensive  
damage. The horizontal buffer strip had separated  
outwards off its attachment rivets. There were also  
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areas of inward and outward compression, as well as  
vertical tearing and inward curling on the inclined and  
vertical faces.  
[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  
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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  
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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.  
R. v. Malik and Bagri  
2. Target 47  
[170] Target 47 is a section of aft cargo compartment  
Page 94  
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.  
[171]  
Front Fuselage  
While acknowledging that his opinions with regard to  
the keel beam splice joints and to areas of the front fuselage  
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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,  
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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.  
[175]  
Keel Beam Splice Joints  
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;  
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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.  
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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.  
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F.  
The Reconstruction  
At the direction of Professor Peel, the targets in  
[178]  
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,  
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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  
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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  
R. v. Malik and Bagri  
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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  
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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,  
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however, to Dr. Trimble’s opinion on this matter given his  
more detailed study of targets in this area.  
H.  
Conclusion  
Given that only 5% of the Kanishka was ultimately  
[188]  
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  
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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  
R. v. Malik and Bagri  
Page 106  
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.  
3.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.  
4.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.  
5.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  
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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  
R. v. Malik and Bagri  
Page 108  
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  
R. v. Malik and Bagri  
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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  
Evidence of the political and religious issues  
[198]  
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.  
R. v. Malik and Bagri  
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[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.  
R. v. Malik and Bagri  
Page 111  
[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.  
R. v. Malik and Bagri  
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C.  
Talwinder Singh Parmar  
Mr. Parmar, an un-indicted co-conspirator in this  
[204]  
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  
R. v. Malik and Bagri  
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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  
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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  
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Page 115  
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.,  
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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.  
R. v. Malik and Bagri  
Page 117  
[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.  
[217]  
Mr. Reyat’s Procurement of Bomb Components  
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:  
• Sanyo FMT 611K Tuner –- Mr. Reyat acknowledged that on  
June 5, 1985 he attended at the Woolworth Department  
Store in Duncan (the “Duncan Woolworth”) with Mr. X and  
was present when a Sanyo FMT 611K tuner was purchased.  
During a November 6, 1985 search of Mr. Reyat’s  
residence, the RCMP seized an invoice from the Duncan  
Woolworth for the purchase of a Sanyo FMT 611K tuner on  
June 5, 1985. The invoice was in the name “I. Reyat” and  
included Mr. Reyat’s home telephone number. The  
investigators searched for but did not find a  
corresponding tuner in the residence.  
• Micronta Clock and Relays -– In addition to the one  
purchased on May 8, 1985 as earlier noted, Mr. Reyat  
purchased a second Micronta clock from the Duncan Radio  
Shack on June 4, 1985. The RCMP did not locate a  
Micronta clock during the November 6 search of his  
residence and workplace, nor did they observe one in Mr.  
Reyat’s vehicle on November 14, 1985.  
R. v. Malik and Bagri  
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• Relays –- Mr. Reyat purchased two 12 volt relays from the  
Duncan Radio Shack on June 4, 1985. He exchanged one of  
the 12 volt relays for a 6 volt relay the following day,  
June 5. He purchased another 6 volt relay from the Radio  
Shack on June 19, 1985. The RCMP found no relays during  
their November 6 search. The relay fragments from Narita  
are forensically consistent with the 6 volt relays  
carried by Radio Shack.  
• Gunpowder -– On June 5, 1985, Mr. Reyat, in the company  
of another East Indian male, purchased a one pound (454  
gram) tin of Dupont IMR 3031 smokeless gunpowder from  
Bucky’s Sports Shop in Duncan. Mr. Reyat acknowledged  
that it was “possible” that this individual was Mr. X.  
The RCMP found a one pound tin of Dupont IMR 3031  
smokeless gunpowder in Mr. Reyat’s residence. Only 37  
grams of powder remained in the tin. Residue on some  
fragments in the Narita explosion is consistent with this  
gunpowder, though it would also have been consistent with  
other sources of indistinguishable single base smokeless  
powder.  
• 12 Volt Battery -– On June 22, 1985, the day of the two  
ill-fated flights, Mr. Reyat, in the company of an East  
Indian male (whom he testified was not Mr. X) attended at  
the AME store in Burnaby, British Columbia between 10:00  
a.m. and 11:30 a.m. He requested a 12 volt battery with  
terminals which would fit into the holes of a metal  
bracket he had brought with him. Mr. Reyat purchased two  
Eveready 12 volt lantern batteries that fit that  
requirement, an unusual model of battery.  
[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:  
• A Sanyo VCR carton -- There was an unusual green tape on  
this carton that was forensically consistent with the  
green tape found on the Narita blast debris.  
• Liquid Fire – The RCMP found a can of Liquid Fire brand  
starting fluid on a workbench at AME forensically  
consistent with fragments found at the Narita explosion.  
AME also sold this product commercially.  
R. v. Malik and Bagri  
Page 119  
• Blasting caps and dynamite – Mr. Ken Slade testified that  
he had provided Mr. Reyat with a number of electric  
blasting caps and a quantity of dynamite sometime in  
1985. The RCMP found approximately 530 grams of dynamite  
removed from its tube casing in a plastic bag in the  
Reyat residence. This dynamite, however, was not of the  
same formulation as that seized from Mr. Slade the same  
day. Neither type of dynamite is chemically consistent  
with the residue on the Narita debris fragments.  
[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.  
R. v. Malik and Bagri  
Page 120  
[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.  
[222]  
Mr. Reyat’s Actions on June 21 and June 22, 1985  
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.  
[224]  
Conclusions Regarding Mr. Reyat  
Mr. Reyat’s involvement with the procurement of  
parts and the development of bombs used in the conspiracy to  
R. v. Malik and Bagri  
Page 121  
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  
R. v. Malik and Bagri  
Page 122  
slightest degree of genuine remorse, he would have been more  
forthcoming.  
VI. THE EVIDENCE AGAINST MR. MALIK  
A.  
Overview  
It is the theory of the Crown that Mr. Malik’s role  
[228]  
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  
R. v. Malik and Bagri  
Page 123  
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”).  
R. v. Malik and Bagri  
Page 124  
[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  
R. v. Malik and Bagri  
Page 125  
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.  
R. v. Malik and Bagri  
Page 126  
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  
R. v. Malik and Bagri  
Page 127  
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.  
R. v. Malik and Bagri  
Page 128  
E.  
Defence Evidence Regarding Mr. A’s Allegations  
1. Renovations to the Ross Street Temple  
David Jackson (“Mr. Jackson”), the Co-Director of  
[244]  
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  
R. v. Malik and Bagri  
Page 129  
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”);  
Amarjit Johal;  
(ii)  
(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.  
R. v. Malik and Bagri  
Page 130  
[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  
R. v. Malik and Bagri  
Page 131  
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.  
R. v. Malik and Bagri  
Page 132  
[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  
R. v. Malik and Bagri  
Page 133  
• 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  
R. v. Malik and Bagri  
Page 134  
• 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  
R. v. Malik and Bagri  
Page 135  
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  
R. v. Malik and Bagri  
Page 136  
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  
R. v. Malik and Bagri  
Page 137  
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.  
R. v. Malik and Bagri  
Page 138  
[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.  
[273]  
Personal Background  
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.  
R. v. Malik and Bagri  
Page 139  
[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  
R. v. Malik and Bagri  
Page 140  
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.  
[277]  
Contact with Others at the Khalsa School  
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.  
R. v. Malik and Bagri  
4. Relationship with Mr. Malik  
[279] Ms. D testified that she had a good relationship  
Page 141  
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
A
Q
A
Q
A
[Ms. D], today do you hate Mr. Malik?  
I could never hate him. Never.  
Do you want to take revenge against Mr. Malik?  
Oh lord, never. Never.  
What are your feelings for him today?  
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
Q
A
Yes, I did.  
What did you promise him?  
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
A
Do you feel that by giving evidence for the Crown  
you are breaking that promise?  
Of course, yes.  
R. v. Malik and Bagri  
Page 142  
Q
A
And how does that make you feel today?  
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  
R. v. Malik and Bagri  
Page 143  
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.  
a.  
Mr. Malik’s Admissions  
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  
R. v. Malik and Bagri  
Page 144  
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  
R. v. Malik and Bagri  
Page 145  
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.  
R. v. Malik and Bagri  
Page 146  
[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”.  
R. v. Malik and Bagri  
Page 147  
[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  
R. v. Malik and Bagri  
Page 148  
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  
R. v. Malik and Bagri  
Page 149  
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.  
R. v. Malik and Bagri  
b. The Cudail Discussion  
[305]  
Page 150  
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  
R. v. Malik and Bagri  
Page 151  
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  
R. v. Malik and Bagri  
Page 152  
the scrap paper, and the two of them ripped up and discarded  
it.  
c.  
[310]  
The Anashka Conversation  
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  
R. v. Malik and Bagri  
Page 153  
were looking at it. Mr. Malik told her that this incident had  
taken place prior to the Air India disaster.  
d.  
[312]  
The Mr. B Discussion  
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.  
[313]  
The Calgary Meeting  
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.  
[314]  
The Seattle Meeting  
Ms. D testified that Mr. Malik had told her that his  
spiritual leader, Bhai Jiwan Singh, had been aware of the Air  
R. v. Malik and Bagri  
Page 154  
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  
R. v. Malik and Bagri  
Page 155  
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  
R. v. Malik and Bagri  
Page 156  
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  
R. v. Malik and Bagri  
Page 157  
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.  
[323]  
Human Rights Complaints  
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.  
R. v. Malik and Bagri  
Page 158  
[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.  
[326]  
Ms. D’s Civil Action  
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.  
[327]  
Contact with CSIS  
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  
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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  
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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.  
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[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  
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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  
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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  
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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  
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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  
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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  
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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  
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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.  
[355]  
Emotional Attachment to the Khalsa Pre-school  
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  
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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.  
[357]  
Relationship with Mr. Malik  
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.  
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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,  
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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.  
[363]  
The Newspaper Confession  
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?  
R. v. Malik and Bagri  
Page 172  
A
Q
A
Yes, sir.  
Is that – is your – is your answer true?  
From what I understood and the way he asked, my  
answer to that was no.  
Q
A
So the answer – your answer is true?  
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
Q
A
Did he make any other reference to Air India?  
Yes.  
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
Q
If you break down it’s – to answer that I would say  
no as if – as I don’t have any proof.  
Well, he – you say he told you things in the office  
–
A
Q
A
Q
A
Q
Yes, sir.  
-- concerning the newspaper?  
Yes, sir.  
That’s something – a reference to Air India, surely?  
Yeah, but I don’t have proof to it, sir.  
But he said those things to you?  
R. v. Malik and Bagri  
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A
But he said lot of things in five years to me, sir,  
but I do not have proof.  
Q
A
Well, I don’t understand that.  
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.  
[367]  
The Cudail Discussion  
The cross-examination of Ms. D regarding the Cudail  
Discussion focused on the following issues:  
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(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.  
[368]  
Reading Books about the Air India Explosion  
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.  
[369]  
The Seattle Trip  
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  
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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.  
[371]  
The Anashka Conversation  
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.  
[372]  
Dealings with CSIS  
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.  
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Page 176  
A
Q
Yes, sir.  
You wanted to find out who was spreading the  
rumours?  
A
Q
A
Q
A
Q
A
Q
A
Yes, sir.  
And that’s all you wanted to find out?  
Yes, sir.  
No interest in all about talking about anything?  
Yes, sir.  
Just getting information?  
Yes, sir.  
Not giving information?  
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
Q
Yes, sir.  
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  
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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.  
[375]  
Dealings with the RCMP  
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  
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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  
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Page 179  
(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  
R. v. Malik and Bagri  
Page 180  
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.  
R. v. Malik and Bagri  
Page 181  
[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  
R. v. Malik and Bagri  
Page 182  
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
Q
No, she did not.  
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
Q
No, she did not.  
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.  
R. v. Malik and Bagri  
Page 183  
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
Q
No, she did not.  
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
Q
Can you repeat the question.  
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.  
[389]  
The First Phone Call and the Meeting at Starbucks  
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  
R. v. Malik and Bagri  
Page 184  
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.  
R. v. Malik and Bagri  
b. The Hotel Meetings  
[392] Mr. Rowe was interviewed by Cpl. Best in October,  
Page 185  
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.  
R. v. Malik and Bagri  
Page 186  
[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;  
R. v. Malik and Bagri  
Page 187  
(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.  
[396]  
Ms. D’s Motivations and Involvement of the RCMP  
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,  
R. v. Malik and Bagri  
Page 188  
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  
R. v. Malik and Bagri  
Page 189  
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.  
R. v. Malik and Bagri  
Page 190  
[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.  
[402]  
Ms. D’s First Contact with the RCMP  
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  
R. v. Malik and Bagri  
Page 191  
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,  
R. v. Malik and Bagri  
Page 192  
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  
R. v. Malik and Bagri  
Page 193  
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  
R. v. Malik and Bagri  
Page 194  
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  
November 5, 1997  
November 6, 1997  
Two tape recorded statements.  
One tape recorded statement.  
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  
November 11, 1997  
A series of pages from her personal  
journal provided to the RCMP.  
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.  
R. v. Malik and Bagri  
Page 195  
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  
November 19, 1997  
Ms. D consented to utilizing a one-  
party  
consent  
to  
obtain  
further  
information from Mr. Malik.  
S/Sgt. Schneider attended Ms. D’s  
house to install video camera  
a
during which time she informed him  
that Kim Bolan had a file on Mr.  
Malik, provided him with Ms. Bolan’s  
phone  
information  
Cheema and Kurdip Cheema.  
number,  
and  
provided  
Sukhminder  
regarding  
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  
R. v. Malik and Bagri  
Page 196  
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  
November 26, 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.  
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.  
also provided information about the  
individual who had provided  
She  
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  
R. v. Malik and Bagri  
Page 197  
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  
December 9, 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.  
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  
December 13, 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.  
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  
R. v. Malik and Bagri  
Page 198  
farm using proceeds from the Satnam  
Education Society.  
January 21, 1998  
January 28, 1998  
Ms. D called Cpl. Best and relayed  
information concerning Air India she  
had  
learned  
from  
Mrs.  
Reyat  
on  
approximately December 5.  
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  
March 7, 1998  
Cpl. Best received a page from Ms. D  
who told him about a meeting Mr.  
Malik had held earlier in the day.  
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  
R. v. Malik and Bagri  
Page 199  
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  
March 23, 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.  
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.  
R. v. Malik and Bagri  
Page 200  
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.  
R. v. Malik and Bagri  
Page 201  
J.  
Telephone Calls Between Mr. Malik and Ms. D  
Mr. Malik’s residential and business telephone lines  
[417]  
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  
R. v. Malik and Bagri  
Page 202  
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;  
R. v. Malik and Bagri  
Page 203  
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  
R. v. Malik and Bagri  
Page 204  
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  
R. v. Malik and Bagri  
Page 205  
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.  
R. v. Malik and Bagri  
Page 206  
[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.  
R. v. Malik and Bagri  
Page 207  
[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”.  
R. v. Malik and Bagri  
Page 208  
L.  
The Evidence of Joginder Singh Gill  
Joginder Singh Gill (“Joginder Gill”) immigrated to  
[436]  
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]  
had with Mr. Parmar in the basement of Mr. Minhas’s home  
sometime after June, 1985. With the radio left on to prevent  
Joginder Gill also testified about a conversation he  
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  
R. v. Malik and Bagri  
Page 209  
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.  
R. v. Malik and Bagri  
Page 210  
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:  
R. v. Malik and Bagri  
Page 211  
(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  
R. v. Malik and Bagri  
Page 212  
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.  
R. v. Malik and Bagri  
Page 213  
[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  
R. v. Malik and Bagri  
Page 214  
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.  
R. v. Malik and Bagri  
Page 215  
[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  
R. v. Malik and Bagri  
Page 216  
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  
R. v. Malik and Bagri  
Page 217  
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  
R. v. Malik and Bagri  
Page 218  
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  
R. v. Malik and Bagri  
Page 219  
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,  
R. v. Malik and Bagri  
Page 220  
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.  
R. v. Malik and Bagri  
Page 221  
[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;  
R. v. Malik and Bagri  
Page 222  
(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  
Offences of the magnitude alleged here can only be  
[476]  
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  
R. v. Malik and Bagri  
Page 223  
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  
R. v. Malik and Bagri  
Page 224  
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  
R. v. Malik and Bagri  
Page 225  
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  
R. v. Malik and Bagri  
Page 226  
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  
R. v. Malik and Bagri  
Page 227  
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.  
R. v. Malik and Bagri  
Page 228  
[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.;  
R. v. Malik and Bagri  
Page 229  
(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  
R. v. Malik and Bagri  
Page 230  
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.  
a.  
Position of Mr. Malik  
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.  
R. v. Malik and Bagri  
b. Mr. A  
[496] Mr. Malik submits that Mr. A’s evidence was both  
impossible and implausible.  
Page 231  
[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  
R. v. Malik and Bagri  
Page 232  
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.  
R. v. Malik and Bagri  
[500] Mr. Malik submits that Mr. A was not able to  
Page 233  
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.  
[501]  
Mr. B  
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.  
R. v. Malik and Bagri  
Page 234  
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.  
R. v. Malik and Bagri  
[504] This motive to fabricate, Mr. Malik submits,  
Page 235  
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.  
R. v. Malik and Bagri  
Page 236  
[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 evidence – There  
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  
R. v. Malik and Bagri  
Page 237  
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 issues – Mr. 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.  
R. v. Malik and Bagri  
Page 238  
• 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.  
a.  
Position of the Crown  
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.  
R. v. Malik and Bagri  
b. Mr. A  
[511] The Crown submits that Mr. A’s evidence about his  
Page 239  
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.  
[514]  
Mr. B  
The Crown urges the Court to accept Mr. B’s evidence  
regarding his conversation with Mr. Malik, the timing of which  
R. v. Malik and Bagri  
Page 240  
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.  
R. v. Malik and Bagri  
Page 241  
[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.  
a.  
The Position of Mr. Malik  
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  
R. v. Malik and Bagri  
Page 242  
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.  
[519]  
Relationship with Mr. Malik  
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  
R. v. Malik and Bagri  
Page 243  
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.  
[524]  
Ms. D’s State of Mind in 1996  
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  
R. v. Malik and Bagri  
Page 244  
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.  
R. v. Malik and Bagri  
d. Ms. D’s State of Mind in 1997  
[527] Ms. D’s belief about illegal activities at the  
Page 245  
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.  
R. v. Malik and Bagri  
e. Ms. D’s Actions Belie Her Words  
[529]  
Page 246  
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  
R. v. Malik and Bagri  
Page 247  
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.  
[533]  
Destruction of Journal and File Materials  
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  
R. v. Malik and Bagri  
Page 248  
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.  
[534]  
The Newspaper Confession  
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  
R. v. Malik and Bagri  
Page 249  
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  
R. v. Malik and Bagri  
Page 250  
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  
R. v. Malik and Bagri  
Page 251  
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;  
R. v. Malik and Bagri  
Page 252  
(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  
R. v. Malik and Bagri  
Page 253  
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;  
R. v. Malik and Bagri  
Page 254  
(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;  
R. v. Malik and Bagri  
Page 255  
(ix)  
(x)  
information concerning the involvement of Balwant  
Bhandher;  
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.  
R. v. Malik and Bagri  
ii. Mr. Bhandher’s Speeding Ticket  
Mr. Malik submits that the evidence that Balwant  
Page 256  
[548]  
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.  
R. v. Malik and Bagri  
Page 257  
[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  
R. v. Malik and Bagri  
Page 258  
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  
R. v. Malik and Bagri  
Page 259  
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.  
[557]  
The Cudail Discussion  
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  
R. v. Malik and Bagri  
Page 260  
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  
R. v. Malik and Bagri  
Page 261  
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)  
(v)  
The evidence of Mr. Cudail is inconsistent with  
Ms. D’s evidence, not consistent as suggested by  
the Crown;  
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  
R. v. Malik and Bagri  
Page 262  
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.  
[564]  
The Anashka Conversation  
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  
R. v. Malik and Bagri  
Page 263  
revised theory has foreclosed Mr. Malik’s ability to respond  
to it.  
j.  
[566]  
The Mr. B Discussion  
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.  
R. v. Malik and Bagri  
Page 264  
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.  
[568]  
The Calgary Meeting  
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.  
[569]  
The Seattle Meeting  
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.  
R. v. Malik and Bagri  
Page 265  
[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  
R. v. Malik and Bagri  
Page 266  
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.  
[573]  
General Issues Regarding Credibility  
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.  
[574]  
The Evidence of Mr. Arora  
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  
R. v. Malik and Bagri  
Page 267  
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.  
[575]  
The Evidence of Nick Rowe  
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  
R. v. Malik and Bagri  
Page 268  
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  
R. v. Malik and Bagri  
Page 269  
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  
R. v. Malik and Bagri  
Page 270  
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.  
[582]  
Daljit Sandhu  
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.  
R. v. Malik and Bagri  
Page 271  
[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.  
R. v. Malik and Bagri  
Page 272  
[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.  
[588]  
Satwant Sandhu  
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.  
R. v. Malik and Bagri  
Page 273  
[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  
R. v. Malik and Bagri  
Page 274  
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.  
a.  
Position of the Crown  
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  
R. v. Malik and Bagri  
Page 275  
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.  
[594]  
Demeanour on the Witness Stand  
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.  
R. v. Malik and Bagri  
Page 276  
[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.  
[597]  
The Nature of the Relationship  
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.  
R. v. Malik and Bagri  
Page 277  
[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)  
(v)  
information about Kewal Singh Nagra; and  
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  
R. v. Malik and Bagri  
Page 278  
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.  
[602]  
The Newspaper Confession  
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  
R. v. Malik and Bagri  
Page 279  
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.  
R. v. Malik and Bagri  
Page 280  
[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  
R. v. Malik and Bagri  
Page 281  
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  
R. v. Malik and Bagri  
Page 282  
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;  
R. v. Malik and Bagri  
Page 283  
(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  
R. v. Malik and Bagri  
Page 284  
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.  
[616]  
The Cudail Discussion  
The Crown submits that the admission by Mr. Malik  
during the Cudail Discussion affords direct proof of his  
R. v. Malik and Bagri  
Page 285  
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  
R. v. Malik and Bagri  
Page 286  
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.  
[620]  
The Anashka Conversation  
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.  
R. v. Malik and Bagri  
Page 287  
[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.  
[622]  
The Mr. B Discussion  
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.  
[624]  
The inconsistency between Ms. D’s statement to the  
police and her evidence regarding whether Mr. Malik used the  
word “sample” or “device” is not significant. She explained  
this inconsistency as simply being a situation where she had  
R. v. Malik and Bagri  
Page 288  
not provided a full and complete response to the police during  
her interview. She testified that that interview had been  
late in the evening, she had been tired and the conversation  
had moved onto the next topic. In addition, Ms. D testified  
that she had not felt alert and had been suffering from a  
medical problem that required medication. The Crown submits  
that this inconsistency was one of omission as opposed to  
contradiction, and that it is understandable in light of the  
circumstances surrounding the taking of the statement.  
i.  
[625]  
The Calgary Meeting  
The Crown submits that Calgary was mentioned by a  
number of witnesses at trial and that it is likely that the  
perpetrators met there from time to time to discuss the  
progress of their plan. For example, Narinder Gill testified  
about a meeting at which he had been present with Mr. Parmar  
and Balwant Bhandher in 1985 during which there had been a  
discussion about destroying planes with an air launcher, to  
which Mr. Parmar had responded “leave it to us, we have a  
plan”.  
j.  
[626]  
The Seattle Meeting  
The Crown submits that Balwant Bhandher’s travel to  
Vancouver to deliver the bombs to the Vancouver Airport and  
R. v. Malik and Bagri  
Page 289  
his trip to Seattle with Narinder Gill were not one trip, but  
rather, two separate and distinct journeys.  
[627]  
With respect to the former, the Crown submits that  
the fact that Balwant Bhandher was in Calgary for a medical  
appointment on June 21, 1985, is not inconsistent with his  
having delivered the bombs to the airport the following day.  
It is possible that he attended an early morning appointment,  
which would have left him sufficient time to drive to  
Vancouver and participate in the delivery of the suitcases to  
the airport.  
[628]  
With respect to the Seattle meeting, the Crown  
submits that the school records tendered by Mr. Malik cannot  
be relied upon and do not, in any event, support a finding  
that the Bhandhers and Narinder Gill did not leave Calgary  
until at least June 28. The Crown submits that it is possible  
that Balwant Bhandher’s children were taken out of school  
before the end of the school year. School reports containing  
information about the children’s attendance record are also  
not reliable and similarly do not preclude this possibility.  
In addition, the Crown submits that Narinder Gill’s  
physiotherapy records do not satisfy the test of ultimate  
reliability and cannot be used to challenge the Crown’s theory  
about the timing of this Seattle trip.  
R. v. Malik and Bagri  
k. The Evidence of Nick Rowe  
[629] The Crown submits that the evidence of Mr. Rowe  
Page 290  
substantially corroborates that of Ms. D. It submits that his  
direct examination is to be preferred over the portions of his  
police interview and reports that he adopted during cross-  
examination; the police interview had been conducted five  
years ago and the reports prepared seven years ago.  
[630]  
The Crown submits that Mr. Rowe’s evidence that Ms.  
D told him during their first meeting that she had been  
accused by Mr. Malik of informing on him to the B.C.  
Government and that Balwant Bhandher had accused her of being  
a CSIS spy corroborate Ms. D in relation to her evidence as to  
why she contacted CSIS.  
[631]  
The Crown further submits that Mr. Rowe’s evidence  
suggests that he had been actively eliciting information from  
Ms. D during their meetings, as opposed to her taking the  
initiative to provide him with information that would be  
harmful to Mr. Malik. Mr. Rowe prepared for the meetings and  
attended with lists of questions and topic headings. Rather  
than a situation of Ms. D trying to feed him information, Mr.  
Rowe had attempted to extract as much information from her as  
he possibly could, consistent with his mandate at CSIS.  
R. v. Malik and Bagri  
Page 291  
[632] Finally, the Crown submits that Mr. Rowe’s evidence  
is consistent with that of Ms. D in relation to her not  
wishing to initiate contact with the RCMP. The Crown submits  
that Mr. Rowe’s evidence describing Ms. D as not being  
“ecstatic” and being “sort of resigned to being there” in  
relation to the RCMP was supportive of her evidence in that  
regard.  
l.  
[633]  
Ms. D’s Dealings with the RCMP  
The Crown submits that Ms. D’s introduction to the  
RCMP was involuntary and that her subsequent dealings with  
them were out of necessity. Had she been driven to bring  
Mr. Malik down, she would have approached the RCMP directly  
and not bothered going to CSIS. The Crown submits that the  
decision to hand Ms. D over to the RCMP had been made  
unilaterally by Mr. Rowe, who had been concerned about her  
safety and took the appropriate step of contacting them.  
[634]  
The Crown submits that, after learning about the Air  
India reference in the context of the Cudail Discussion, the  
RCMP became interested in any information that Ms. D might  
provide. Accordingly, they built and maintained a  
relationship of trust with Ms. D in the hopes of gathering  
further information from her.  
R. v. Malik and Bagri  
Page 292  
[635] In addition, the Crown submits that it is important  
to consider Ms. D’s personal situation in October, 1997.  
Before she had been forced from her job, she had endured  
months of abuse from Mr. Malik, Balwant Bhandher and  
Mr. Uppal. She had been subjected to threats and harassment,  
and it is therefore understandable that she would come to rely  
on the RCMP. Considering her personal circumstances at the  
time, the Court should not draw an adverse inference against  
Ms. D arising out of the evidence surrounding her dealings  
with the RCMP.  
m.  
[636]  
Daljit Sandhu  
The Crown submits that Daljit Sandhu should be  
afforded no credibility because he has a powerful motive to  
lie to protect himself and Mr. Malik.  
[637]  
The Crown submits that Daljit Sandhu was involved in  
attempts to intimidate Joginder Gill and another witness, and  
that he lied during his testimony about the following issues:  
(i) whether it was possible for Mr. Malik to have set up  
a stall in front of the Ross Street Temple in 1984;  
(ii) the extent of his relationship with Mr. Reyat in the  
1980s and 1990s; and  
(iii) whether he advocated or approved of violence to  
further Sikh causes.  
R. v. Malik and Bagri  
[638] Accordingly, the Crown submits that the Court should  
conclude that Daljit Sandhu is not a trustworthy witness.  
Page 293  
n.  
[639]  
Satwant Sandhu  
The Crown acknowledges that there was no evidence to  
corroborate Ms. D’s testimony about Satwant Sandhu’s  
involvement in the conspiracy, but submits that he was not a  
credible witness as demonstrated by his answers under cross-  
examination.  
[640]  
The Crown submits that Satwant Sandhu was not  
truthful when he denied having the technical capacity to put  
together a bomb with a timing device and that he was not  
responsive when questioned about his earlier statement to the  
police on this issue. The Narita bomb was a crude and  
elementary device easily within his capabilities.  
[641]  
The Crown further submits that Satwant Sandhu lied  
to the police about the extent of his relationship with  
Mr. Parmar and in his repeated assertions about having a lack  
of recall.  
Finally, the Crown submits that he was  
purposefully evasive in his responses and cannot be considered  
to be a witness without interest and bias in the outcome of  
the trial.  
R. v. Malik and Bagri  
Page 294  
E.  
Post Offence Conduct  
1.  
a.  
Position of Mr. Malik  
Financial Support of the Reyat Family  
[642]  
Mr. Malik submits that his financial contributions  
to Mr. Reyat’s appeal and his payments to Mrs. Reyat cannot  
reasonably be relied upon as evidence of his guilt in relation  
to the Air India bombing as submitted by the Crown.  
[643]  
While Mrs. Reyat may have been paid “under the  
table”, she had been working at the pre-school at the time of  
those payments. During the first few years, the only  
compensation she received was the rent-free apartment and  
waiver of tuition fees. The monetary payments did not  
commence until after she had moved out of the pre-school, and  
there is nothing to suggest that the payments were sinister or  
related to anything other than her work at the pre-school.  
[644]  
Mr. Malik also submits that the Crown’s submissions  
concerning the inferences to be drawn from the evidence of  
financial support of the Reyat family often overstated the  
evidence or were without evidentiary foundation. In  
particular, he submits that the Crown’s submissions regarding  
the Panesar account and the inferences sought regarding  
irregular banking procedures are not supported by the  
R. v. Malik and Bagri  
Page 295  
evidence. There is no evidence that the Panesar account was a  
“sham account”, no evidence that Mrs. Reyat benefited from the  
funds and no evidence as to the source of such funds. Also,  
as a matter of common sense, Mr. Malik was in the banking  
business and would have been aware of the ease with which  
cheques could be traced to accounts under his control.  
[645]  
Finally, Mr. Malik submits that supporting people in  
need, as was Mrs. Reyat, a single mother with four children,  
is common in the Sikh community. He notes, too, that Ms. D  
also was friendly and supportive of Mr. and Mrs. Reyat.  
[646]  
With respect to Ms. D’s evidence of Mr. Malik  
stating that the support was to recognize the “sewa” or  
service Mr. Reyat had done, Mr. Malik submits that the  
evidence does not support the finding sought by the Crown and  
that many of its submissions in that regard were not supported  
by the evidence. Ms. D never asked Mr. Malik what he meant by  
“sewa” and there is no evidence that he ever expressed pro-  
Khalistan or anti-Indian Government sentiments. Neither Ms. D  
nor Narinder Gill reacted to Mr. Malik’s comment in a manner  
that suggested they understood him to be referring to the  
Narita bombing. Further, neither of them objected to the  
Satnam Trust or Satnam Education Society paying Mrs. Reyat.  
R. v. Malik and Bagri  
Page 296  
[647] Finally, the defence submits that the Crown’s  
submission that Mr. Malik was paying Mrs. Reyat “hush money”  
is not consistent with the evidence of Mr. Malik’s conduct  
towards her, which suggests that the payments were not  
gratuitous or generous and that Mr. Malik and Mrs. Reyat  
clashed about her commitment to work and the amount of  
compensation she received.  
b.  
[648]  
The Evidence of Joginder Gill  
Mr. Malik submits that Joginder Gill’s evidence is  
striking in its lack of detail, including what he understood  
to be the purpose of the meeting at Mr. Manhas’ home.  
[649]  
Contrary to the submission of the Crown, Joginder  
Gill never testified that Mr. Malik (or any of the others) had  
tried to intimidate him or was even persistent in requesting  
that Joginder Gill change his evidence, as would have been  
expected had the men traveled to Nanaimo for that purpose.  
[650]  
Mr. Malik also made submissions that the  
identification of Mr. Malik by Mr. Gill should be treated with  
some caution. He further submits that the Crown has  
mischaracterized the evidence regarding the kanda symbol on  
Mr. Malik’s turban, pointing out that there is simply no  
evidence that it shows support for either Khalistan or the  
R. v. Malik and Bagri  
Page 297  
Babbar Khalsa. Moreover, the evidence suggests that Mr. Malik  
did not start wearing a kanda until the 1990s, in any event.  
[651]  
In response to the Crown submission that Daljit  
Sandhu may have been describing a different meeting when  
testifying about its purpose, Mr. Malik submits that this  
theory makes no sense, noting that both men described the same  
people being present and that Joginder Gill had testified that  
this was the one and only time that he had met Mr. Malik at a  
meeting in Nanaimo.  
[652]  
Finally, Mr. Malik submits that this incident could  
only be relied on as “consciousness of guilt” and that the  
requisite inferences necessary to come to that conclusion are  
not available. It would also not be reasonable to conclude  
that Mr. Malik had asked Joginder Gill to change his evidence  
out of a consciousness of guilt about his own role in the  
conspiracy as nothing that arose out of that conversation  
implicates Mr. Malik in any way. At its highest, this alleged  
conversation suggests a consciousness of Mr. Parmar’s possible  
involvement.  
2.  
a.  
Position of the Crown  
Financial Support of the Reyat Family  
The Crown submits that the evidence of Mr. Malik’s  
[653]  
financial support of Mrs. Reyat and her children in the 1990s  
R. v. Malik and Bagri  
Page 298  
should be regarded as post-offence conduct providing  
circumstantial evidence of his guilt in the conspiracy.  
[654]  
The evidence of approximately $51,000 in payments  
deposited into Mrs. Reyat’s account from Mr. Malik’s own bank  
account, the Satnam Education Society, Papillon Eastern  
Imports Ltd., and the Satnam Trust between 1991 and 1996 went  
unchallenged by Mr. Malik. The Crown submits that Mr. Malik  
transferred these funds in a manner that made it difficult to  
identify him or his organizations as the source, including the  
manipulation of normal banking practices and policy. The  
Crown also submits that a further $65,000 was likely funnelled  
into a “sham account” set up in the name of Piara Singh  
Panesar for the benefit of Mrs. Reyat.  
[655]  
The Crown submits that financial payments and the  
free accommodation provided to Mrs. Reyat and her children  
demonstrate that Mr. Malik was committed to the financial  
security of Mr. Reyat’s family while he served his sentence.  
The purpose was to compensate him for fulfilling his role in  
the alleged offences, thus advancing the Sikh cause. Ms. D  
testified that Mr. Malik told her that he was assisting Mrs.  
Reyat because her husband had done a “great sewa” or service  
for the Sikh community. Narinder Gill testified that Mr.  
R. v. Malik and Bagri  
Page 299  
Malik explained his support of Mrs. Reyat by reference to the  
fact that Mr. Reyat had worked for the “panth”.  
[656]  
The Crown also submits that Mr. Malik was aware that  
he himself was “perilously close” to being arrested for these  
crimes and feared that Mr. Reyat’s cooperation with police  
could result in that occurring.  
b.  
[657]  
The Evidence of Joginder Gill  
The Crown submits that Joginder Gill’s evidence  
demonstrates that Mr. Malik attempted to obstruct and  
interfere with the investigation of the Narita bombing and  
Mr. Reyat’s trial.  
[658]  
The Crown submits that Daljit Sandhu’s evidence in  
relation to this incident is inconsequential as there is no  
way to determine whether he was describing the same meeting.  
[659]  
With respect to Mr. Malik’s submissions about the  
lack of detail in Joginder Gill’s story, the Crown submits  
that it was obvious that he did not know the purpose of the  
meeting at the Manhas residence or why he had been asked to  
attend. Further, it is clear that Mr. Malik’s confrontation  
with him happened immediately after he entered the house.  
[660]  
The Crown submits that Joginder Gill is a credible  
witness with no animus towards Mr. Malik.  
R. v. Malik and Bagri  
Page 300  
[661] The Crown submits that Mr. Malik was attempting to  
interfere with the Crown’s case against Mr. Reyat. He took a  
number of men with him to Nanaimo in an attempt to bolster the  
level of intimidation. He had a strong motivation to see that  
Mr. Reyat was acquitted and was also concerned that the naming  
of Mr. Parmar might cause the police to focus on himself.  
Accordingly, the Crown submits that this post-offence conduct  
provides further circumstantial evidence of Mr. Malik’s  
culpability in the conspiracy.  
VIII.  
APPLICABLE LEGAL PRINCIPLES  
Standard of Proof  
There is no issue that the standard of proof to be  
A.  
[662]  
applied to these proceedings is that of proof beyond a  
reasonable doubt. This is the essence of the Rule of Law and  
cannot be applied any less vigorously in cases of horrific  
crimes than it is with respect to any other offence under the  
Criminal Code. The Supreme Court of Canada has repeatedly  
affirmed that the specific nature of a crime or facts of a  
particular case have no bearing on the requirement that an  
accused be entitled to the full protection of the law and the  
prosecution be held to the same standard of proof in all  
proceedings: R. v. Burlingham (1995), 97 C.C.C. (3d) 385 at  
408 (S.C.C.); R. v. Kirkness (1991), 60 C.C.C. (3d) 97 at 123  
R. v. Malik and Bagri  
Page 301  
(S.C.C.); R. v. Evans (1991), 63 C.C.C. (3d) 289 at 311  
(S.C.C.).  
[663]  
In R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.),  
the Supreme Court of Canada set out a sample jury charge  
defining the meaning of reasonable doubt at p. 14:  
The accused enters these proceedings presumed to be  
innocent. That presumption of innocence remains  
throughout the case until such time as the Crown has  
on the evidence put before you satisfied you beyond  
a reasonable doubt that the accused is guilty.  
What does the expression "beyond a reasonable doubt"  
mean?  
The term "beyond a reasonable doubt" has been used  
for a very long time and is a part of our history  
and traditions of justice. It is so engrained in  
our criminal law that some think it needs no  
explanation, yet something must be said regarding  
its meaning.  
A reasonable doubt is not an imaginary or frivolous  
doubt. It must not be based upon sympathy or  
prejudice. Rather, it is based on reason and common  
sense. It is logically derived from the evidence or  
absence of evidence.  
Even if you believe the accused is probably guilty  
or likely guilty, that is not sufficient. In those  
circumstances you must give the benefit of the doubt  
to the accused and acquit because the Crown has  
failed to satisfy you of the guilt of the accused  
beyond a reasonable doubt.  
On the other hand you must remember that it is  
virtually impossible to prove anything to an  
absolute certainty and the Crown is not required to  
R. v. Malik and Bagri  
Page 302  
do so. Such a standard of proof is impossibly high.  
In short if, based upon the evidence or lack of  
evidence before the court, you are sure that the  
accused committed the offence you should convict  
since this demonstrates that you are satisfied of  
his guilt beyond a reasonable doubt.  
[664]  
The Court refined this definition in R. v. Starr  
(2000), 147 C.C.C. (3d) 449 at 545 (S.C.C.), where Iacobucci  
J., writing for the majority, held that the standard of proof  
“falls much closer to absolute certainty than a balance of  
probabilities”. Where the evidence only establishes that an  
accused was likely a perpetrator of an offence, leads to a  
“high degree of suspicion” or indicates that an accused is  
“probably guilty”, the standard of proof beyond a reasonable  
doubt will not have been met: R. v. Lifchus, supra, at pp. 13  
– 14; R. v. McDonald (1951), 101 C.C.C. 78 at 82 (B.C.C.A.);  
R. v. Davis, [1998] B.C.J. No. 1569 at para. 36 (S.C.); R. v.  
Reynolds, [2000] O.J. No. 5836 at paras. 75-76 (S.C.J.).  
[665]  
The standard of proof beyond a reasonable doubt is  
not generally applicable to individual areas of evidence in a  
criminal trial. As such, a piecemeal examination of each  
piece of evidence proffered by the Crown is not appropriate.  
The test is whether the whole of the evidence against an  
R. v. Malik and Bagri  
Page 303  
accused establishes guilt beyond a reasonable doubt: R. v.  
Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.).  
[666]  
One exception to this general principle is the  
treatment of out-of-court statements of an accused which form  
the basis of the Crown’s case against the accused or when an  
accused testifies to a contradictory version of the statement  
at trial. In such cases, the court must be satisfied beyond a  
reasonable doubt that the statements were made by the accused  
and that the statements were true. In making this  
determination, the court must consider all of the evidence: R.  
v. Kyllo (2001), 158 C.C.C. (3d) 560 (B.C.C.A.); R. v.  
McKenzie (1993), 78 C.C.C. (3d) 193 (S.C.C.); R. v. Flynn  
(1996), 111 C.C.C. (3d) 521 (B.C.C.A.); R. v. Timm (1998), 131  
C.C.C. (3d) 306 (Que. C.A.); aff’d (1999), 140 C.C.C. (3d) 225  
(S.C.C.); R. v. Mulligan (1955), 111 C.C.C. 173 (Ont. C.A.);  
R. v. Harvey (1996), 109 C.C.C. (3d) 108 (B.C.C.A.).  
B.  
Motive  
Evidence of motive constitutes one form of  
[667]  
circumstantial evidence which can be considered on the issue  
of identity. As held by the Supreme Court of Canada in R. v.  
Lewis (1979), 47 C.C.C. (2d) 24 at 36:  
Evidence of motive is merely circumstantial evidence  
like any other circumstantial evidence, which may or  
may not be of importance depending upon the facts of  
R. v. Malik and Bagri  
Page 304  
each case. But motive as a legal concept is not a  
necessary element of the case to be proved by the  
prosecution and the prosecution is free to adduce  
such evidence or not. Paradoxically then, although  
motive is described as “ulterior intention” in the  
sense of the end of a series of actions, it is only  
useful in an evidentiary sense as a means of proving  
the anterior intention or the identity of the person  
who committed the actus reus.  
[668]  
Evidence of motive standing alone is not a  
sufficient basis upon which to found a conviction, and must be  
supported by other probative and significant evidence: R. v.  
Yebes (1987), 36 C.C.C. (3d) 417 at 431 (S.C.C.). Where  
evidence of motive is derived from an accused’s statements,  
the weight to be accorded such evidence will depend on the  
strength of the nexus between those statements and the  
offences alleged: R. v. Robertson (1975), 21 C.C.C. (2d) 285  
(Ont. C.A.).  
C.  
Vetrovec Cautions  
Where the evidence of a Crown witness gives rise to  
[669]  
serious credibility or reliability concerns, it may be  
necessary to subject that evidence to a Vetrovec caution and  
require confirmatory evidence before relying upon it: R. v.  
Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.). Even in judge  
alone proceedings, the court must self-caution where  
necessary: R. v. Kyllo, [2003] B.C.J. No. 3003 (S.C.).  
R. v. Malik and Bagri  
[670] The issue of when a Vetrovec caution will be  
Page 305  
required was considered by the Supreme Court of Canada in R.  
v. Brooks (2000), 141 C.C.C. (3d) 321. The reasons of  
Major J. formed the majority on the applicable law. While  
there are a variety of circumstances that may be relevant to  
assessing whether a Vetrovec caution is required, the Court  
held that there are two central criteria to be considered: the  
degree to which the credibility of the witness is suspect and  
the importance of that witness’s evidence to the Crown’s case.  
This two part test was set out as follows at pp. 347-348:  
I agree with the view expressed in “Developments in  
the Law of Evidence: The 1992-93 Term” (1994), 5  
S.C.L. Rev. (2d) 421. The author, Marc Rosenberg  
(now Rosenberg J.A.), concluded that Vetrovec and  
Bevan require the trial judge to focus on two  
different elements of the case in determining whether  
or not a warning is necessary. At p. 463 he stated:  
The judge should first in an objective way  
determine whether there is a reason to suspect the  
credibility of the witness according to the  
traditional means by which such determinations are  
made. This would include a review of the evidence  
to determine whether there are factors which have  
properly led the courts to be wary of accepting a  
witness’s evidence. Factors might include  
involvement of [sic] criminal activities, a motive  
to lie by reason of connection to the crime or to  
the authorities, unexplained delay in coming  
forward with the story, providing different  
accounts on other occasions, lies told under oath,  
and similar considerations. It is not then  
whether the trial judge personally finds the  
witness trustworthy but whether there are factors  
which experience teaches that the witness’s story  
be approached with caution. Second, the trial  
R. v. Malik and Bagri  
Page 306  
judge must assess the importance of the witness to  
the Crown’s case. If the witness plays a  
relatively minor role in the proof of guilt it is  
probably unnecessary to burden the jury with a  
special caution and then review the confirmatory  
evidence. However, the more important the witness  
the greater the duty on the judge to give the  
caution. At some point, as where the witness  
plays a central role in the proof of guilt, the  
warning is mandatory. This, in my view, flows  
from the duty imposed on the trial judge in  
criminal cases to review the evidence and relate  
the evidence to the issues.  
In summary, two main factors are relevant when  
deciding whether a Vetrovec warning is necessary: the  
witness’s credibility, and the importance of the  
witness’s testimony to the Crown’s case. No specific  
threshold need be met on either factor before a  
warning becomes necessary. Instead, where the  
witness is absolutely essential to the Crown’s case,  
more moderate credibility problems will warrant a  
warning. Where the witness has overwhelming  
credibility problems, a warning may be necessary even  
if the Crown’s case is a strong one without the  
witness’s evidence. In short, the factors should not  
be looked to independently of one another but in  
combination.  
[671]  
In addition to the factors tending to impair a  
witness’s worth referred to in the passage above, the fact  
that a witness seeks benefits to testify is also one that  
attracts Vetrovec concerns because of the motive to lie that  
it creates: R. v. Brooks, supra; R. v. Bevan (1993), 82 C.C.C.  
(3d) 310 (S.C.C.). So, too, is the fact that a witness has  
been received payment for his evidence beyond that reasonable  
and necessary for the protection and safety of the witness: R.  
v. Dikah (1994), 89 C.C.C. (3d) 321 (Ont. C.A.); Palmer and  
R. v. Malik and Bagri  
Page 307  
Palmer v. The Queen (1980), 50 C.C.C. (3d) 193 (S.C.C.). The  
degree of benefits obtained and the conduct of the witness  
with respect to those benefits are relevant considerations in  
assessing the extent to which, if at all, the witness’s  
evidence is suspect: R. v. Dikah, supra.  
[672]  
The essence of a Vetrovec caution is the recognition  
of the suspect nature of the witness and the resulting search  
for independent confirmation or support for that witness’s  
evidence. There is a proportional relationship between the  
degree of trustworthiness concerns regarding the witness and  
the nature of the confirmatory evidence required to make his  
or her evidence safe to rely upon. The proposed confirmatory  
evidence need not directly implicate the accused or confirm  
the Crown witness’s evidence in every respect. It should,  
however, “be capable of restoring the trier’s faith in the  
relevant aspects of the witness’s account”: R. v. Kehler  
(2004), 181 C.C.C. (3d) 1 (S.C.C.).  
IX. CONCLUSIONS REGARDING THE CASE AGAINST MR. MALIK  
A.  
Cross-Examination of Crown Witnesses  
[673]  
As reviewed above, the Crown made a number of  
submissions to the effect that Mr. Malik’s submissions should  
be afforded less weight because certain witnesses were not  
sufficiently challenged or confronted during cross-  
R. v. Malik and Bagri  
Page 308  
examination. This raises the issue commonly referred to as  
the rule in Browne v. Dunn. In its simplest form, the “rule”  
requires counsel to expressly confront a witness on any point  
that is to be challenged. A review of the Canadian  
jurisprudence in this area reveals that a flexible approach to  
this issue is to be applied by the trial judge when weighing  
the effect to be given to the absence or brevity of cross-  
examination on a particular issue. There is no general or  
absolute rule and the circumstances and particular facts of  
each case are to be considered in resolving the issue. In  
effect, a witness must be treated fairly through being  
confronted with the fact that their evidence is not being  
accepted. It is not necessary, however, for counsel to review  
every single point of disagreement with the witness, so long  
as the witness has adequately been made aware of the  
disagreement generally and been provided with an opportunity  
to reply. [See: Browne v. Dunn, supra; Palmer and Palmer v.  
The Queen, supra, 209-210; R. v. Lyttle, 2004 S.C.C. 5 at  
para. 65; R. v. Verney (1993), 87 C.C.C. (3d) 363 at 376 (Ont.  
C.A.)].  
[674]  
Applying that rule, I find that, in the  
circumstances of this case, Mr. Malik adequately confronted  
the key Crown witnesses during cross-examination.  
R. v. Malik and Bagri  
Page 309  
Accordingly, no adverse inferences can be drawn in relation to  
Mr. Malik’s submissions regarding the credibility of those  
witnesses, as urged by the Crown. In particular, as is  
reviewed below, it was clear from the cross-examination of  
Mr. A that the entirety of his account was being challenged,  
not simply the location of the alleged conversation.  
Similarly, it was not necessary for Ms. D to be confronted  
with every detail of the Newspaper Confession that had been  
contained in the public domain. It was patently clear that  
her credibility regarding that conversation was being  
challenged and that one of the key issues in that regard was  
whether she had gathered the details she attributed to  
Mr. Malik from information in the public domain.  
B.  
Motive  
The Crown’s theory concerning motive as it relates  
[675]  
to Mr. Malik is based on statements that he is alleged to have  
made to Ms. D, Mr. B and Mr. A, all of whose credibility has  
been the subject of much attack. The credibility of each of  
those witnesses will be discussed below.  
C.  
Evidence of Association  
[676]  
Evidence of association against Mr. Malik is neutral  
as it renders it neither more nor less likely that he  
committed the alleged offences.  
R. v. Malik and Bagri  
Page 310  
[677] There was a long pattern of association between  
Mr. Malik and other baptized Sikhs in that relatively small  
community, including Mr. Parmar and Mr. Reyat, which revealed  
no significant increase or alteration as the time of the  
alleged offences approached. There is little evidence of  
contact between them in the relevant time period. In coming  
to this conclusion, I have placed very little weight on the  
entry contained in Hardial Johal’s Pocket Pal. There is other  
more reliable evidence of litigation involving those present  
at the meeting. I accept the Crown’s submissions that any  
dialogue about a court case would not have precluded a  
separate discussion about other more sinister matters. While  
the timing of the June 18, 1985 meeting may raise general  
suspicions, for the reasons outlined in the defence  
submissions, that meeting is as consistent with an innocent  
purpose as with a sinister one.  
D.  
The Attempts to Recruit Individuals to Deliver Bombs  
1.  
Jagdev Singh Dhillon  
[678]  
The credibility of Mr. Dhillon was not challenged by  
the defence, and I find him to be a credible witness.  
However, the inferences that can reasonably be drawn from his  
evidence are in issue.  
R. v. Malik and Bagri  
Page 311  
[679] Mr. Dhillon testified that after leaving a meeting  
in another room of his home, Mr. Malik entered the room in  
which he and a group of others had been present, stating words  
to the effect, “They say to crash the planes”.  
[680]  
The Crown theory that Mr. Malik was “testing the  
waters” to gauge Mr. Dhillon’s response and then possibly  
recruit him, while possible, is highly unlikely and  
speculative in the extreme. Making that remark to the group  
as a whole in those circumstances is entirely inconsistent  
with that theory.  
2.  
[681]  
Mr. A  
I accept the defence submissions to the effect that  
the evidence of this witness is not only implausible, but  
impossible. As earlier noted, I find that he was sufficiently  
challenged during his cross-examination.  
[682]  
The circumstances in which Mr. A 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.  
R. v. Malik and Bagri  
Page 312  
[683] That Mr. Malik would have approached 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.  
[684]  
Mr. A’s evidence is also impossible. The balance of  
the evidence at trial 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 had ever set up his stall outdoors prior to the  
renovations.  
[685]  
In closing submissions, the Crown offered a new  
theory as to where the stall might have been erected. That  
theory is not only inconsistent with the evidence of Mr. A,  
but was completely untested in the balance of the evidence.  
[686]  
Finally, Mr. A was dishonest in his evidence  
describing his financial affairs. In light of his recent  
R. v. Malik and Bagri  
Page 313  
bankruptcy, I am also mindful of the fact that it was still  
public knowledge that there existed a one million dollar  
reward in this case when he first came forward with this  
story.  
[687]  
Mr. A, I conclude, has no credibility.  
3.  
Mr. B  
[688]  
Mr. B’s evidence has been described in some detail  
elsewhere in these reasons. He approached Mr. Malik in early  
1985 for a $40,000 loan to avoid foreclosure of his home. Mr.  
Malik responded by asking if he would do a job for him by  
taking a suitcase to India because he wanted to teach the  
Government of India a lesson. Mr. B replied that he feared he  
would be jailed in India since he was a baptized Sikh. Mr.  
Malik then said he could take the suitcase to England where it  
would be picked up by his men, with Mr. Malik paying the  
expenses. Mr. Malik added that if anything happened to him,  
he would be considered a martyr and the panth would look after  
his children. Towards the end of March, Mr. B found financial  
assistance elsewhere and told Mr. Malik he no longer required  
the loan. Mr. Malik told him that he should not talk to  
anyone about their conversation, a statement he repeated two  
weeks later.  
R. v. Malik and Bagri  
Page 314  
[689] Mr. B testified that shortly after the Air India  
disaster, he received a threatening phone call saying, “The  
work was done. Don’t open your mouth”. That same day, Mr.  
Malik phoned him, stating words to the effect, “The  
mishappening with Air India had taken place. If anyone asks  
you about it or questions you, let me know”.  
[690]  
Mr. Malik reminded him two or three weeks later not  
to say anything of their conversation. Two or three weeks  
thereafter, Mr. Malik came to his farm with his children.  
When Mr. B indicated that the police wished to speak with him,  
Mr. Malik replied, “It’s God willing. Whatever God does is  
right and you stay in touch with me”.  
[691]  
Mr. B first disclosed these conversations on April  
7, 1997, some 12 years after they had taken place. Prior to  
that, he had revealed them to no one, not even close family  
members, nor had he ever committed them to writing. A further  
four years passed before he disclosed the two telephone  
conversations he had received on the day of the Air India  
explosions.  
[692]  
Mr. B’s evidence is that he came forward as a matter  
of conscience after receiving an affirmative answer upon  
asking a friend, “If somebody has a secret - has his secret  
with them, should they disclose it or not?”  
R. v. Malik and Bagri  
Page 315  
[693]  
The evidence, however, reveals the existence of  
quite another more plausible motive. According to his  
testimony, Mr. B believed that he had been cheated and  
thwarted at every turn on many occasions over many years by  
Mr. Malik, leaving him in a state of financial ruin. In  
addition to his lawsuit against Mr. Malik, his outrage at this  
treatment culminated one day when he informed Mr. Malik that  
he would “beat him up” and ruin his reputation. It was later  
that same day that he made his first disclosure to police.  
This occurred one week after a Punjabi newspaper published  
notice of a one million dollar reward related to the Air India  
investigation. It must also be borne in mind that the means  
by which the explosive device had been transported onto the  
Air India plane was well known and in the public domain.  
[694]  
Mr. B’s explanation of fear and lack of memory for  
the further four year delay in disclosing the less  
incriminating two conversations occurring at the time of the  
Air India explosions lacks credulity.  
[695]  
I conclude not only that Mr. B held strong motives  
to seek vengeance against Mr. Malik, but also that he was not  
truthful in his evidence when describing his motives in first  
going to police.  
R. v. Malik and Bagri  
Page 316  
[696] While Mr. B may be hardly alone in this regard, the  
evidence establishes that he swore a false affidavit in his  
bankruptcy proceedings when he claimed he had no equity in the  
farm property he had transferred to his son. He acknowledged  
doing so to protect his interest in that property from  
creditors. That acknowledgement is contrary to his earlier  
evidence in this trial that his purpose in transferring that  
property to his son had been to assist his son in bringing his  
wife from India. There were other examples of his misleading  
the Trustee in Bankruptcy, including a false sworn statement  
that he was separated from his wife.  
[697]  
A more significant internal inconsistency in his  
evidence relates to whether he had asked Mr. Malik what the  
suitcase would contain. In his direct examination, he  
testified that he had not. In cross-examination, however, he  
testified that he had. In a prior statement, he also  
indicated that he had. Somewhat puzzlingly, when confronted  
with this contradiction, his explanation was that both  
versions were correct.  
[698]  
There were numerous and often minor discrepancies  
between the evidence of Mr. B and that of Ms. D describing the  
nature and extent of their contact. More notably, Mr. B  
testified that he had not related the suitcase conversation to  
R. v. Malik and Bagri  
Page 317  
her; she testified he had. That was the case as well with  
Narinder Gill.  
[699]  
In summary, I conclude that Mr. B is not a credible  
witness for these reasons:  
1.  
his evidence regarding his suitcase conversation  
with Mr. Malik contains information easily gleaned  
from the public domain;  
2.  
3.  
he did not reveal this conversation for some 12  
years after the event;  
he harboured a powerful motive for revenge after  
experiencing years of what he perceived to be on-  
going and significant deception by Mr. Malik,  
leading to his financial ruin;  
4.  
5.  
he disclosed the conversation to the police for the  
first time almost immediately after threatening harm  
to the person and reputation of Mr. Malik;  
he was not being 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.  
8.  
his evidence suffered internal inconsistencies; and  
his evidence conflicted to some degree with that of  
Mr. Narinder Gill and Ms. D.  
[700]  
Accordingly, I do not accept his evidence describing  
his conversations with Mr. Malik.  
R. v. Malik and Bagri  
Page 318  
E.  
Ms. D  
When the evidence is considered as a whole, the  
[701]  
credibility of Ms. D is the critical issue in the case against  
Mr. Malik.  
1.  
[702]  
Manner and Demeanour  
While assessing the manner and demeanour of a  
witness as a test of credibility is fraught with risks, it  
rightfully remains one the factors to be considered.  
[703]  
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.  
2.  
The Relationship Between Ms. D and Mr. Malik  
[704]  
Surprising were Ms. D’s adamant protestations of on-  
going love, respect and longing for Mr. Malik, a man whom she  
claims admitted his complicity in the senseless mass murder of  
R. v. Malik and Bagri  
Page 319  
hundreds of complete innocents. Of her being a witness, she  
testified:  
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….  
[705]  
When one adds to that her evidence of his treatment  
of the student Cudail, his illegal activities 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.  
[706]  
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 her animus towards Mr. Malik. This latter possibility  
would also better provide some explanation for the apparent  
unlikelihood of Mr. Malik having chosen to provide her with  
such a detailed confession.  
[707]  
There is no suggestion that, apart from occasional  
arguments, her feelings towards him ever diminished over time.  
Thus, a closer examination of the evidence of her conduct, her  
state of mind at the time and her statements to CSIS and the  
police is warranted.  
R. v. Malik and Bagri  
Page 320  
[708] It appears that Ms. D’s planning, dedication and  
hard work is largely responsible for the success of the Khalsa  
pre-school. Of that work, she testified, “I just loved it. It  
was like a heaven, yes.”  
[709]  
It is against this backdrop of her passion for her  
work that the circumstances leading to Ms. D’s dismissal by  
Mr. Malik must be considered.  
[710]  
In the summer of 1996, as she became progressively  
frustrated with what she perceived to be an increasing number  
of illegalities perpetrated by Mr. Malik, Ms. D wrote in her  
journal:  
He is, in fact, a thief hiding behind religion. He  
misuses the trust account.  
[711]  
In December 1996, she wrote that she told her then  
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.  
[712]  
In February, 1997, Balwant Bhandher, a trustee at  
the school, accused her of being a CSIS spy, an accusation  
that troubled her greatly.  
[713]  
Friction increased between Ms. D and Mr. Malik over  
her perception of illegalities and her refusal to be a party  
R. v. Malik and Bagri  
Page 321  
to them. By the summer of 1997, efforts to have her resign  
intensified. In September of that year, Mr. Malik told Ms. D  
that he wanted her resignation. She was treated in a  
humiliating fashion by her superiors. On October 17, 1997,  
Mr. Malik told her she could quit, be laid off or sign a Sikh  
contract, contrary to what he had initially promised her.  
That same day, she testified, Mr. Malik demanded a sexual  
relationship.  
[714]  
In late October, Ms. D received harassing and  
threatening phone calls. On October 24, Mr. Malik again asked  
for her resignation. Then, on November 1, he fired her. The  
threats and harassments continued. She was refused a  
reference, rendering it almost impossible for her to obtain  
employment elsewhere in her field.  
[715]  
For these and other reasons advance by the defence,  
two matters become apparent:  
1.  
2.  
Ms. D’s protestations of love and respect for Mr.  
Malik throughout the 1996 and 1997 period lack  
credulity.  
Because of the effects of Mr. Malik’s actions  
towards her and her position with the school, she  
had significant grounds to harbour animus towards  
him.  
[716]  
Ms. D first contacted CSIS in October, 1997. Her  
evidence is that her sole purpose in doing so was to obtain  
R. v. Malik and Bagri  
Page 322  
information as to who was spreading the rumour that she was a  
CSIS spy. The reports prepared by Mr. Rowe of his meetings  
with Ms. D and his police interview with Cpl. Best appear to  
belie his brief responses to the propositions put to him by  
the Crown at the end of his direct evidence. Those reports  
were detailed, prepared when the conversations to which they  
referred were fresh in his mind, and repeatedly accepted by  
him in evidence as accurate, though not exhaustive. The same  
is true, to a lesser extent, of his police interview. I  
accept the defence submission that therein lies the best  
evidence of his involvement with Ms. D.  
[717]  
In his report of that first contact, Mr. Rowe noted  
that Ms. D came to him “as someone who could accept and deal  
with the type of information the source wished to pass…”. In  
his 1999 police interview, Rowe said of that first contact:  
She indicated that she had some information that she  
wished to pass and that, there was in same vein as  
stuff that I had discussed earlier with some friends  
of her.  
[718]  
At their first meeting, Ms. D named Mr. Malik and  
Balwant Bhandher as being principally involved in the Babbar  
Khalsa. After a number of meetings, Rowe reported that Ms. D:  
• …indicated that she is victim of anonymous threats,  
which she believes to be at the behest of Malik and  
is concerned for her safety;  
R. v. Malik and Bagri  
Page 323  
• …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;  
• …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…;  
• …lacks respect for Malik and resents his treatment  
of her fellow staff who lack her resourcefulness and  
independence…;  
• has volunteered to provide information to the  
Service on an ongoing basis.  
[719]  
His responses in his 1999 police interview were  
consistent with that view, adding that:  
She felt that his activities were, were nefarious if  
not criminal, if not a danger to Canada and so on  
and then, in every way eager to impart the  
information to me and the Service.  
[720]  
Mr. Rowe did testify that Ms. D had mentioned an  
allegation that she was a CSIS spy at their first meeting,  
contrary to his 1999 statement that she had said nothing of  
such an allegation. Nothing turns on this discrepancy.  
[721]  
In meetings that followed shortly thereafter, Ms. D  
provided lengthy and detailed allegations against Mr. Malik  
and others of various kinds of fraud, misuse of government  
R. v. Malik and Bagri  
Page 324  
funding, the funding of military or terrorist activities and  
even contraventions of the Health Act.  
[722]  
Ms. D testified that she did not trust the RCMP, did  
not want to meet with them and departed a few minutes into  
their first meeting. Mr. Rowe, in his report of October 29,  
1997, however, states that he had “already secured consent” to  
liaise with the RCMP. Similarly, in his 1999 interview with  
Cpl. Best, Mr. Rowe stated that:  
… 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.  
[723]  
Of that first meeting with Cpl. Best, Mr. Rowe, in  
his report of September 9, 1999, described having discussed  
her handover to the RCMP with Ms. D on many occasions and that  
it had occurred with “her full, informed consent”. Cpl. Best  
explained to her during that meeting that her evidence was  
required for court and she consented. Mr. Rowe noted that she  
appeared “to be totally at ease with Best and her  
circumstances”.  
[724]  
Ms. D went to an RCMP office on November 2, 1997 to  
be outfitted with a transmitter for her purse prior to  
returning to the Khalsa School the following day. She  
R. v. Malik and Bagri  
Page 325  
repeated many of the fraud allegations and offered further  
information on Mr. Malik. In that and the many meetings that  
followed in the ensuing months, there was no appearance of the  
fear and mistrust she claimed. Rather, she appeared eager to  
impart as much information as she could. Ms. D revealed  
considerable detailed, on-going and wide-ranging information,  
usually without prompting from the RCMP. She also reaffirmed  
her belief that Mr. Malik and “his people” were spreading  
rumours that she was a CSIS spy.  
[725]  
When cross-examined about her dealings with the RCMP  
during that period, Ms. D professed a loss of memory about  
much of them. This memory loss, I find, was feigned so as to  
avoid having to explain the obvious contradictions between her  
evidence describing her relationship with the authorities and  
that of her actual conduct in that regard.  
[726]  
Then, on March 23, 1998, Ms. D first disclosed the  
Newspaper Confession, which was followed by a meeting with  
Cpl. Best and S/Sgt. Schneider on April 2, 1998. About that  
meeting, Ms. D testified that she remained distrustful of the  
RCMP and did not wish to be part of the Air India  
investigation. Although Cpl. Best could not recall many of  
the details of this meeting, S/Sgt. Schneider took notes and  
agreed that Ms. D had indicated her willingness to testify in  
R. v. Malik and Bagri  
Page 326  
court and to act as an agent for the RCMP in obtaining further  
admissions from Mr. Malik and Hardial Johal. This further  
undermines Ms. D’s evidence of her relationship with the  
police.  
[727]  
While it is unlikely that there would have been any  
demonstrative evidence of their relationship of love as  
described by Ms. D, she testified that she and Mr. Malik spoke  
daily by telephone. Due to a wiretap on Mr. Malik’s  
telephones between September, 1996 and January, 1997, the  
Crown could have examined the preserved tapes from that time  
period in an attempt to corroborate Ms. D’s evidence of such a  
relationship. This did not occur. As a result, the Court is  
left with evidence of a single telephone call between Mr.  
Malik and Ms. D during this time period. While not  
determinative of any issue in relation to Ms. D’s credibility,  
it does not tend to corroborate her evidence describing their  
relationship.  
[728]  
In summary, I do not accept Ms. D’s evidence  
describing her motives in approaching the authorities, nor her  
evidence of strong ongoing emotional ties with Mr. Malik.  
3.  
[729]  
The Newspaper Confession  
Ms. D first disclosed the Newspaper Confession to  
authorities on March 23, 1998, some five months after she  
R. v. Malik and Bagri  
Page 327  
first offered them information about Mr. Malik and following  
many interviews and statements. She explained this delay by  
saying that:  
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. …  
When asked if there was any other reason, she replied:  
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.  
[730]  
What is puzzling is that she had demonstrated no  
such restraint or hesitation in the previous months when  
relaying a wide range of similarly unproven information in  
other areas. Also inconsistent with that explanation is her  
police interview of November 7, 1997 when, in relating the  
Cudail Discussion with Mr. Malik, she revealed what she  
regarded as his confession to the Air India explosion. When  
asked at that time whether Mr. Malik had made any other  
references to Air India, she replied, “no”. Finally, there is  
no evidence that she ever told Mr. Rowe or Cpl. Best of her  
professed reluctance to become involved in the Air India  
investigation.  
R. v. Malik and Bagri  
Page 328  
[731] While Ms. D endeavoured to leave the impression that  
the Newspaper Confession had come about almost inadvertently  
in her interview with Cpl. Best without her being aware of its  
significance, it is clear from the evidence of Cpl. Best that  
this was not the case. The subject had been initiated by her  
informing him that she had something to say concerning Mr.  
Malik which she had not previously mentioned.  
[732]  
In explaining why she had chosen to confront  
Mr. Malik with the newspaper article, and had persisted after  
he had told her not to worry, she explained that she had hoped  
he would explain it away for her. She added:  
But I needed Mr. Malik. I needed – I’ve been with  
him five years. I have talked to him on many  
topics. I have learned so many things from him. He  
was like my hero. You know, Mr. Bellows, I never  
said this, but it was – if Mr. Malik would tell me  
to go do something, even though I knew it was wrong  
I could do it. And it was like I can’t explain. It  
was as if he – he could make me do anything. I  
don’t know how to explain that.  
[733]  
Yet, it was also her evidence that she repeatedly  
refused to do what he asked of her when she believed it to be  
wrong, even though it brought conflict to their relationship.  
[734]  
Despite hearing what she believed to his admission  
to involvement in the mass murder of hundreds of innocents,  
Ms. D remained in the office and asked Mr. Malik for details  
of his involvement and that of others. Her explanation for  
R. v. Malik and Bagri  
Page 329  
remaining was that she had not known the victims of the Air  
India disaster, and also that:  
… at that point my only concern was Mr. Malik and  
protecting him was my main thing. It wasn’t as if  
that I’m listening to something that others will  
find it like it’s a mass murder and it is – mine was  
just him and how I could protect.  
[735]  
Despite these protestations, when Mr. Malik later  
accused her of taping phone conversations, she filed a human  
rights complaint, sought out CSIS and commenced legal action  
against him.  
a.  
Details of the Newspaper Confession in the Public  
Domain  
[736]  
For a witness such as Ms. D relating a detailed  
confession, credibility can be enhanced by demonstrating that  
some of the details could have come from no other source than  
that confession. That is not the case here.  
[737]  
A great deal has been reported and written about the  
Air India/Narita explosions. Two books and many articles were  
made exhibits in the trial. A number of witnesses expressed  
surprise on learning that one of these books contained  
verbatim accounts of police statements they had given near the  
time of the events. In particular, these books contained a  
great deal of information concerning the booking and ticket  
purchase aspect of the conspiracy.  
R. v. Malik and Bagri  
Page 330  
[738] However, while the Crown is thus deprived of what  
can be a powerful submission supportive of credibility, a  
unique feature of the Newspaper Confession has provided the  
defence with a powerful submission to the contrary.  
[739]  
The Newspaper Confession described by Ms. D contains  
some details which have been proven to be false. By itself,  
that might be inconsequential. However, Mr. Malik has  
successfully demonstrated that four of those errors were also  
contained in the Air India publications. While individual  
pieces of erroneous information may not, standing alone, raise  
a significant concern regarding Ms. D’s credibility, viewed  
collectively, they raise serious and significant questions  
with respect to the veracity of her testimony concerning the  
Newspaper Confession.  
[740]  
In summary, the four erroneous pieces of information  
are as follows:  
(i) the reference to “Canadian Airlines” instead of CP  
Air;  
(ii) the booking route of the L. Singh ticket to India;  
(iii) the shortage of cash explanation for the change of  
the L. Singh ticket to a one-way ticket; and  
(iv) the changing of the contact number for the tickets  
to that of the Ross Street Temple.  
R. v. Malik and Bagri  
Page 331  
[741] These errors appear to have migrated, along with the  
other more factual details, from the publications to Ms. D’s  
account of the Newspaper Confession. The only reasonable  
inference is that Ms. D crafted a false confession from those  
publications. This finding alone, apart from the delayed  
disclosure, unbelievable explanation for that delay, denial in  
her police statement of any further mention of the subject by  
Mr. Malik beyond the Cudail Discussion and her false portrayal  
of herself as powerless to refuse Mr. Malik’s requests, leads  
to the conclusion that the Newspaper Confession as Ms. D  
described it did not take place.  
b.  
[742]  
The Evidence of Mr. Arora  
This witness was a religious teacher and librarian  
at the Khalsa School. His description of how Ms. D came to  
take possession of the book Soft Target was credible and not  
seriously challenged by the Crown in cross-examination.  
[743]  
Regrettably, this evidence was not put to Ms. D in  
cross-examination as it was not known to exist by counsel at  
the time. However, one could reasonably expect a denial to  
any such suggestion as she had earlier denied having read this  
or any other book on the subject of the Air India explosion.  
[744]  
Mr. Arora’s evidence, accepting it as I do,  
demonstrates that Ms. D was not truthful in her evidence about  
R. v. Malik and Bagri  
Page 332  
having not read Soft Target and only adds weight to the  
conclusion that her evidence regarding the Newspaper  
Confession was fabricated.  
c.  
[745]  
The Bhandher Speeding Ticket  
As mentioned, this evidence is the one area of the  
Newspaper Confession identified by the Crown that could not  
have come from the public domain. Ms. D described being told  
by Mr. Malik that Balwant Bhandher had become frightened that  
he might be arrested for his involvement in the Air India  
explosion when receiving a speeding ticket from the police in  
the 1990s.  
[746]  
The evidence establishes that he received a speeding  
ticket in 1991, nothing more. Considering that Ms. D, Balwant  
Bhandher and Narinder Gill worked with each other, it cannot  
be concluded that she could only have learned this rather  
innocuous piece of information from her conversation with Mr.  
Malik.  
d.  
[747]  
The Journal  
Under the dates February 28 to March 16, 1997, at  
page 135 of her journal, Ms. D, in speaking of her  
conversation with Mrs. Reyat, wrote as follows:  
She told me some stuffs that came in paper it  
shocked me I confronted Malik and he confirmed but  
R. v. Malik and Bagri  
Page 333  
told me not to worry but I am worried I care about  
him and Mrs. Reyat.  
[748]  
What appears to be a clear reference to the  
Newspaper Confession has gone through an interesting  
evolution. As earlier stated, on November 7, 1997, Ms. D  
denied to the police that Mr. Malik had made any references to  
Air India other than in the Cudail Discussion. On April 27,  
1998, she told the police that she had not made any notes in  
her journal of the Newspaper Confession. On June 11, 1999,  
during a Crown interview, she handed over her journal to the  
police.  
[749]  
After offering varying recollections as to when the  
Newspaper Confession had taken place, Ms. D was shown the  
Awaaz newspaper article for the first time on June 13, 1999.  
That article is dated March 28, 1997, a date after that noted  
in her journal for the above quoted entry.  
[750]  
On October 3, 1999 in a Crown interview, Ms. D said  
words to the effect that this journal reference was a  
purposely oblique reference (not her words) to the Newspaper  
Confession. At Mr. Malik’s bail hearing on December 21, 2000,  
that was conveyed to the Court by the Crown and held up as  
independent confirmatory evidence. The defence responded by  
pointing out that this could not be the case because the  
journal entry was dated before the newspaper was published.  
R. v. Malik and Bagri  
Page 334  
[751] In a Crown interview on April 28, 2001, Ms. D again  
confirmed that the journal reference at page 135 was a  
reference to the Newspaper Confession. She said that she had  
earlier forgotten about having written that reference. In  
another Crown interview the following day, she wavered on that  
issue, was told to reflect on it and that Cpl. Best would  
follow up. In a statement taken by Cpl. Best on June 16,  
2001, when asked whether page 135 of the journal referred to  
the Newspaper Confession, she replied, “No, I don’t think so”.  
[752]  
Ms. D was unable to recall in evidence what the  
entry on page 135 of her journal in fact referred to. That  
there would have been another unusual incident so similar in  
so many respects within such a short time period and not  
recalled by her stretches credulity. There is no evidence of  
any other newspaper article which could fit this scenario.  
Her effort to explain this change in evidence by suggesting  
that Crown counsel and Cpl. Best may have confused her was  
most unconvincing. The more likely and reasonable inference  
is that her story changed when it became apparent to her that  
the Newspaper Confession could not have occurred within the  
time period recorded in her journal.  
R. v. Malik and Bagri  
e. The Involvement of Daljit Sandhu  
[753]  
Page 335  
There is no evidence tending to confirm that Daljit  
Sandhu was involved in the alleged offences, other than  
Ms. D’s evidence relating what she had been told by Mr. Malik  
in the Newspaper Confession. However, he was clearly a  
sympathizer of those seeking revenge in a violent manner for  
the attack on the Golden Temple, despite his initial evidence  
to the contrary. In analyzing the issues in this trial,  
however, it is not necessary to resolve the issue of this  
witness’s credibility. That said, I find it most unlikely  
that Daljit Sandhu, with his then very high profile in the  
community, would have been chosen by Mr. Malik for, or that he  
would have consented to, carrying out the very public act of  
picking up and paying for the airline tickets.  
f.  
[754]  
The Involvement of Satwant Sandhu  
Ms. D did not disclose the portion of the Newspaper  
Confession describing the involvement of Satwant Sandhu in the  
alleged offences until August, 1998, some five months after  
her first disclosure to the police of that conversation with  
Mr. Malik. She offered no adequate explanation for this  
delay. Further, a number of inconsistencies in Ms. D’s prior  
statements regarding the timing of her conversation with Mr.  
Malik about Satwant Sandhu’s involvement cannot be reconciled  
R. v. Malik and Bagri  
Page 336  
with her evidence. Once again, it is not necessary for me to  
resolve the issue of Satwant Sandhu’s credibility at this  
trial. However, I find that the delay in reporting and the  
unexplained inconsistencies in Ms. D’s prior statements tend  
to undermine her evidence in this regard.  
[755]  
g.  
Summary of Conclusions Regarding the Newspaper  
Confession  
1.  
2.  
Ms. D’s explanation for the delay in reporting the  
Newspaper Confession lacks credulity.  
Ms. D’s evidence that she felt powerless to refuse  
direction from Mr. Malik, even when knowing it to be  
wrong, is repeatedly contradicted by her own  
evidence.  
3.  
Ms. D’s evidence that her concern for Mr. Malik and  
her desire to protect him led her to persist until  
he provided her all the details of the Newspaper  
Confession lacks credulity.  
4.  
5.  
6.  
The core information in the Newspaper Confession,  
except for Balwant Bhandher’s innocuous speeding  
ticket, was readily available in the public domain.  
Four identifiable factual errors in the public  
domain migrated into Ms. D’s account of the  
Newspaper Confession.  
Contrary to her evidence that she had not read Soft  
Target, a book containing much of the information  
she related in the Newspaper Confession, I accept  
the evidence of Mr. Arora that she had.  
7.  
Ms. D’s evidence that her apparent journal reference  
to the Newspaper Confession was in fact a reference  
to another remarkably similar confrontation with Mr.  
Malik was fabricated, as she believed she could not  
otherwise explain that reference having been dated  
prior to the publication of the newspaper article  
which she claims triggered that confrontation.  
R. v. Malik and Bagri  
4. The Cudail Discussion  
[756] Ms. D described a conversation she had with Mr.  
Page 337  
Malik during which he stated, “We had Air India crashed”. A  
young female student, apparently humiliated by a Khalsa School  
religious teacher, was hospitalized after an attempted  
suicide. After she visited the family in hospital several  
times with the support of Mr. Malik, he told her that he  
wanted her to end the visits, explaining that he had been  
embarrassed by that family on his own visit to the hospital.  
Ms. D, characteristically, responded that he could not tell  
her who to visit. Her evidence is that, in the context of the  
sacrifice of this one child in the name of Sikhism, Mr. Malik  
by way of analogy stated:  
1982, 328 people died; what did anyone do? … People  
still remember Khalistan. … We had Air India  
crashed. … Nobody, I mean nobody can do anything.  
It’s all for Sikhism. Cudail won’t get anywhere.  
Ministry won’t listen; no one will.  
[757]  
Ms. D described Mr. Malik as being very calm but  
very serious at the time. She recorded that statement in her  
journal as “We’d Air India crashed”, explaining that she had  
merely abbreviated “We had…”. She remained adamant that Mr.  
Malik had not stated “When Air India crashed”.  
[758]  
At the outset, I note that the evidence of  
Mr. Cudail did not tend to confirm Ms. D’s evidence regarding  
R. v. Malik and Bagri  
Page 338  
the context of her interaction with Mr. Malik surrounding this  
discussion.  
[759]  
Ms. D described becoming very emotionally upset  
during and after that conversation, not because of the Air  
India reference, but because of Mr. Malik’s treatment of her  
in that conversation, his stance on Ms. Cudail, and her belief  
that he did not care whether Ms. Cudail lived or died.  
Regarding the Air India comment she testified:  
To me, I’m concerned about Preethi Cudail. I do not  
want to sound selfish, sir. I don’t know about Air  
India. I don’t know the families. And I know  
people have – are kind – are upset about that  
incident. To me that didn’t matter. I’m not there  
for listening to that. I was listening to what Mr.  
Malik had to say about Preethi Cudail. I never  
cared about that incident.  
[760]  
Ms. D was interviewed by S/Sgt. Schneider on  
November 3, 1997. He adopted as accurate his note of that  
interview as follows:  
After [Ms. D’s] tape-recorded statement, she did  
mention that around Mother’s day a year ago, Malik  
stated that “don’t be concerned about losing 1  
student, we lost 329 people in the name of Sikhism.”  
She thought he was speaking about Air India.  
Written in journal.  
[761]  
This entry was starred by S/Sgt. Schneider because  
of its significance, and he used quotations as his best effort  
to repeat her precise language.  
R. v. Malik and Bagri  
Page 339  
[762]  
In an April 27, 1998 interview, Ms. D described  
Mr. Malik’s statement as:  
…you’re crying for one child, one person. And do  
you remember in 1980, he said, we finished 324  
people, and I didn’t say anything. And he said, you  
know Air India. He said, you may not remember it  
because you were not here. And he said, it was for  
Sikhism, we finished 320, whatever the number of  
people, and it was all for Sikhism, and you were  
crying for one person. And to me when he said we  
finished, I never cared what he was talking about.  
He was very rude and very nasty.  
In her sworn statement of June 24, 1998, she again described  
his words as “we finished”.  
[763]  
In cross-examination, Ms. D affirmed that, even the  
following day when she wrote in her journal, she had no  
reaction to what she believed had been Mr. Malik’s confession  
to involvement in the Air India explosion. Instead, she was  
upset about how he could treat her in that fashion after she  
had done so much.  
[764]  
Ms. D was in a high emotional state at the time of  
the conversation over matters other than the Air India remark  
by Mr. Malik. At the time, the remark itself meant nothing  
and had no impact on her. Her credibility concerns aside,  
there can be no safe conclusion as to whether he said “We  
had…” or “We finished…” or “We lost…”. In addition, the use  
of the word “We” renders the meaning of the sentence  
R. v. Malik and Bagri  
Page 340  
ambiguous, as it may refer to Mr. Malik or to Sikhs more  
generally.  
5.  
[765]  
The Anasksha Conversation  
Regarding the conversation Ms. D testified to  
overhearing (in the spring of 1997, she testified, sometime  
after the Newspaper Confession) between Mr. Malik and Mindy  
Bhandher concerning the diagram of an aircraft, cross-  
examination revealed a surprising evolution of her story. At  
times, it became entirely inconsistent with the version she  
had given in her direct examination. In particular, the  
following matters became apparent:  
(i)  
Ms. D first revealed that she had any information  
about the Anashka conversation in a telephone call  
with Cpl. Best in October, 2000;  
(ii)  
Ms. D’s first report of this incident made no  
reference to her having had a conversation with  
Mr. Malik in the Trustee’s office after Mindy  
Bhandher left;  
(iii) when questioned about her initial discussion with  
Cpl. Best, Ms. D testified that she had little  
recall of what she had told him regarding whether  
she had engaged Mr. Malik in a conversation at the  
time;  
(iv)  
notes of a Crown interview from April, 2001 reveal  
that Ms. D’s version of this incident then was  
that she had been told about the Anashka incident  
by Mr. Malik while taking a walk with him.  
She  
made no mention of having overheard an actual  
conversation between Mr. Malik and Mindy Bhandher  
during this interview; and  
R. v. Malik and Bagri  
(v)  
Page 341  
notes of a Crown interview from August, 2003  
reveal that Ms. D first provided an account of  
this incident that contained both the fact that  
she had overheard a conversation between Mr. Malik  
and Mindy Bhandher and that she had subsequently  
had a discussion with Mr. Malik about this  
incident while walking with him.  
During this  
interview, Ms. D claimed not to remember whether  
she had entered the Trustee’s office after Mindy  
Bhandher had left or whether she had subsequently  
discussed the incident with Mr. Malik.  
[766]  
When cross-examined on inconsistencies in her  
August, 2003 Crown interview, Ms. D was again uncertain as to  
whether she and Mr. Malik had ever discussed this incident  
while on a walk. With respect to her lack of recollection  
about whether she had, in fact, entered the office and  
discussed the matter with Mr. Malik, Ms. D proffered the  
explanation that she had not been asked to think clearly  
before giving her answer and that she just “didn’t think or  
reflect back on that occasion”.  
[767]  
In addition, there is now no doubt that Mindy  
Bhandher was out of the country from the last week of February  
until the first week of July, 1997.  
[768]  
This 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 the incident did not occur as Ms. D described.  
R. v. Malik and Bagri  
6. The Mr. B Discussion  
[769] Ms. D described a conversation with Mr. Malik  
Page 342  
concerning Mr. B while attending a religious program. Mr.  
Malik had told her that Mr. B was angry with him over money  
matters, which he described. He also described having asked  
Mr. B to carry a suitcase for him in the 1980s. Mr. B, he  
said, became angry and stormed out. In her direct  
examination, Ms. D testified that when she asked Mr. Malik why  
he had wanted Mr. B to take fabrics and clothes, he replied  
that it was a device that he wanted taken on an Air India  
plane.  
[770]  
This evidence also went through an evolution. In  
her statement to police on June 24, 1998, Ms. D had him  
stating:  
… I wanted him to take some stuff to India, which he  
refused me, and he doesn’t talk to me. He’s mad at  
me. And I assumed it was samples because he has  
clothes, so we just kind of left it as the samples  
and things.  
She explained the inconsistency by testifying:  
…I see it as it’s mixed – all mixed up. And I never  
completed the whole statement. It was late at night  
and we were kind of talking fast and going over  
things fast.  
[771]  
A video of that statement played in court, however,  
revealed that there had been no such rapid talking and that  
she had had every opportunity to complete her answer. She  
R. v. Malik and Bagri  
Page 343  
then attributed the inconsistency to her making a mistake and  
being tired.  
[772]  
It is significant that Ms. D never revealed this  
conversation to the police in her many interviews until after  
she had met and spoken with Mr. B. This provided an  
opportunity to fine-tune her story with information from that  
source.  
7.  
[773]  
The Calgary Meeting  
Ms. D’s evidence of Mr. Malik telling her about a  
meeting in Calgary lacked context and detail. Despite the  
Crown’s submissions to the contrary, there was no evidence  
that corroborated her testimony that such a meeting had taken  
place. Narinder Gill, the only other witness to testify about  
any meetings in Calgary, did not place Mr. Malik at any of  
them.  
8.  
[774]  
The Seattle Trip  
Ms. D testified that, at a time and place she could  
not recall, Mr. Malik told her that their spiritual leader had  
been aware of their plot to place a bomb on an Air India  
flight and had offered his blessings at a religious gathering  
in Seattle. He named others who were present. There was no  
evidence led tending to confirm the occurrence of such a  
meeting. Further, the defence led evidence of business  
R. v. Malik and Bagri  
Page 344  
records tending to demonstrate that no such meeting occurred  
prior to the date of the alleged offences. The evidence of  
Narinder Gill also tends to demonstrate the same.  
[775]  
Ms. D first disclosed having had this conversation  
with Mr. Malik in a Crown interview on the eve of her  
testimony. In that interview, she acknowledged having spoken  
to Narinder Gill about this trip on three prior occasions, who  
by this time had completed his testimony. When cross-examined  
about this Crown interview, she claimed a surprising lack of  
recall about what had been discussed.  
[776]  
The Crown attack on the reliability of the records  
produced by the defence was far from persuasive. For the  
reasons advanced by the defence, I am satisfied that no such  
Seattle meeting took place prior to the time of the alleged  
offences.  
9.  
[777]  
Final Conclusion Regarding Ms. D’s Credibility  
For all the reasons set out above, I find that Ms. D  
was not a credible witness. The concerns regarding the  
Newspaper Confession alone 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 Mr. Malik.  
R. v. Malik and Bagri  
Page 345  
F.  
1.  
Post-Offence Conduct  
Financial Support of the Reyat Family  
Mr. Malik, through organizations over which he had  
[778]  
some control, provided financial assistance to Mrs. Reyat and  
her children. This was hardly accomplished in a transparent  
fashion. All but those with audit powers would have  
encountered significant difficulty in tracing that support  
from its source to Mrs. Reyat. Though Mrs. Reyat did provide  
some value through her work at the school, deceptive tactics  
were employed to enable some of that support to flow  
improperly from the public purse.  
[779]  
The circumstances and timing of that support lead to  
the reasonable inference that his motivation was to support  
the Reyat family when Mr. Reyat was convicted for his role in  
the Narita bombing. However, can it be properly inferred that  
this act of financial support is:  
…consistent with the conduct of a guilty person and  
inconsistent with the conduct of an innocent person: R.  
v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.)  
[780]  
Put another way, the evidence must not only be  
consistent with guilt, but inconsistent with any other  
rational conclusion: R. v. White (1998), 125 C.C.C. (3d) 385  
(S.C.C.).  
R. v. Malik and Bagri  
Page 346  
[781] While it is possible that Mr. Malik provided this  
support because he was a party to the alleged offences along  
with Mr. Reyat, that is far from being the only reasonable  
inference to draw. Aid to the family of a fellow baptized  
Sikh incarcerated in those circumstances may be a reasonable  
inference. Sympathy for Mr. Reyat’s perceived cause may also  
have led to support for his family. Even such sympathy with  
the belief that Mr. Reyat had committed the alleged offence  
would not eliminate this inference.  
[782]  
This exercise requires a degree of reasonable  
speculation based on common sense and human experience. It  
must be borne in mind that there is no positive evidence to  
support the inference sought by the Crown, other than the very  
act of support itself. It is not, I conclude, the only or  
even most reasonable inference to be drawn. Thus it carries  
no weight as post-offence conduct.  
2.  
[783]  
The Evidence of Joginder Gill  
I find that Joginder Gill was a credible witness.  
He responded to the questions asked of him and did not waver  
under cross-examination. I need not deal with whether he may  
have been honestly mistaken in his identification of Mr. Malik  
because of my conclusion below.  
R. v. Malik and Bagri  
Page 347  
[784] Joginder Gill’s evidence about his conversation with  
Mr. Malik was simple and straightforward. Unlike the incident  
with Mr. Parmar a year earlier, he did not suggest that there  
had been any overt or implicit attempt to intimidate him. He  
made no mention of the location or conduct of others during  
the conversation with Mr. Malik, and the Crown’s submissions  
in that regard are entirely speculative.  
[785]  
At its highest, this incident suggests that  
Mr. Malik may have been attempting to obstruct justice in  
relation to potential charges against Mr. Parmar or Mr. Reyat.  
There is nothing in the exchange with Mr. Malik that could  
support a finding that his conduct supports an inference of  
consciousness of guilt in relation a role he may have played  
in the Air India conspiracy. Once again, the Crown’s  
submissions in this regard are speculative and unsupported by  
the evidence.  
G.  
[786]  
Final Conclusions  
At the end of this long and, at times, convoluted  
road in the case against Mr. Malik, the Court finds itself  
determining whether guilt has been proved beyond a reasonable  
doubt by assessing the credibility of several witnesses,  
particularly that of Ms. D.  
R. v. Malik and Bagri  
Page 348  
[787] The legal principles with respect to the burden of  
proof on the Crown and the requirement that guilt be proved  
beyond a reasonable doubt are set out above very briefly. I  
am mindful that this standard of proof applies to each  
essential ingredient of the offence, not to individual pieces  
of evidence. That evidence has been considered as a whole.  
[788]  
The credibility of each witness claiming to have  
heard statements by Mr. Malik of an incriminatory nature are  
examined above. In each case, for the reasons expressed,  
credibility is found to be significantly wanting. 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 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.  
X.  
THE EVIDENCE AGAINST MR. BAGRI  
[789]  
Mr. Bagri was a founding member of the Babbar Khalsa  
organization in Canada and an associate of Mr. Parmar.  
R. v. Malik and Bagri  
Page 349  
[790] It is the theory of the Crown that Mr. Bagri’s  
involvement in the Air India/Narita explosions lay in securing  
transport of the bomb-laden suitcases to the Vancouver  
Airport. Its case against him rests on three primary bodies  
of evidence: evidence of motive, evidence from two key  
witnesses, Mr. C and Ms. E, regarding incriminatory statements  
allegedly made by Mr. Bagri, and evidence of association.  
A.  
Motive  
The Crown presented what it describes as strong  
[791]  
evidence of motive on the part of Mr. Bagri, namely, religious  
and political zealotry, revealed in speeches and statements  
made by him in 1984. One speech was delivered at Madison  
Square Gardens in New York in July, 1984 (the “MSG Speech”),  
and the other to the Panthak Conference in September, 1984  
(the “Panthak Conference Speech”). It also led evidence of  
statements by Mr. Bagri to the police during the same time  
frame that it submits provide context to his speeches so as to  
firmly belie any suggestion that they were merely overblown  
rhetoric and hyperbole as submitted by the defence.  
1.  
a.  
Mr. Bagri’s Speeches  
Madison Square Gardens Speech  
[792]  
On July 28, 1984, Mr. Bagri gave a speech at the  
founding convention of the World Sikh Organization (“WSO”) at  
R. v. Malik and Bagri  
Page 350  
Madison Square Gardens in New York. The purpose of the  
convention was to unite various international Sikh  
organizations under one banner to more effectively respond to  
Operation Bluestar. Approximately 4,000 Sikh leaders from  
throughout the world were in attendance.  
[793]  
One of a number of speakers, Mr. Bagri spoke for  
over an hour to the apparent enthusiastic reception of the  
audience. His emotional speech, frequently tinged with  
violent images, described recent and historical Hindu  
mistreatment of Sikhs and proposed solutions to this problem,  
principally, the creation of an independent Sikh homeland of  
Khalistan. In this regard, Mr. Bagri spoke of the need for  
Sikhs to wage a war of independence under the leadership of  
Mr. Parmar and a General Bhullar. He spoke, too, of exacting  
revenge against the Indian Government and of punishing  
traitors to the cause of an independent Khalistan.  
b.  
[794]  
Panthak Conference Speech  
Mr. Bagri raised similar themes in his speech to the  
Panthak Conference, including Hindu mistreatment of Sikhs and  
the concomitant need for Sikhs to wage a war of independence  
against the Hindus. He advocated deposing the moderate Sikh  
leadership in the Punjab and called for a boycott of Hindu  
businesses.  
R. v. Malik and Bagri  
Page 351  
[795] The Crown and Mr. Bagri each led expert evidence  
regarding the English translations of Mr. Bagri’s Punjabi  
language speeches. Ms. Surjeet Kalsey testified for the Crown  
and Mr. Gian Singh Kotli for Mr. Bagri. Both interpreters  
described the difficulty in accurately translating and  
conveying the meaning of the MSG Speech due to its extensive  
references to Sikh scripture and history, as well as to the  
different grammatical structures between the Punjabi and  
English languages. Both experts were also subjected to  
extensive cross-examinations spanning multiple days regarding  
their respective translations. Ultimately, while Mr. Kotli  
seemed too keen to place a benign interpretation on many  
inflammatory remarks, I find the differences between the two  
translations to lie primarily in their grammatical form and to  
be of little substantive significance. Accordingly, the  
expert evidence regarding the precise English meanings of  
particular Punjabi words and phrases used by Mr. Bagri need  
not be addressed further.  
2.  
a.  
Statements to the Police  
Wilf Bells  
[796]  
Retired RCMP Corporal Wilf Bells had dealings with  
Mr. Bagri with respect to an unrelated matter in March, 1985.  
Mr. Bells testified to a conversation he had with Mr. Bagri  
R. v. Malik and Bagri  
Page 352  
during which Mr. Bagri spoke of Sikhs having a problem with  
the Indian Government. The Government and police in India  
were corrupt, he said, and the police would beat people for no  
reason. Mr. Bagri added that unlike in Canada, in India one  
had to prove innocence. Mr. Bagri also requested that the  
interpreter for his interview with the RCMP be a Sikh since  
“Hindus hate me and I hate Hindus”.  
b.  
[797]  
Detective Sergeant Keith Weston  
Keith Weston was a Detective Sergeant in the  
Metropolitan Police special branch with responsibility for  
investigating threats from Sikh extremists in London, England  
in 1985. He had two interviews with Mr. Bagri at Heathrow  
Airport that year, the first on October 18. Mr. Bagri  
described his travel plans in England, Pakistan and Germany,  
and indicated that he would be briefly coming back to England  
before returning to Canada in early December.  
[798]  
Detective Sergeant Weston also questioned Mr. Bagri  
about the Babbar Khalsa. Mr. Bagri explained that the  
organization had approximately 300 members in Canada, and he  
identified its main leaders as Mr. Parmar, Gurmit Singh Gill,  
Dalbir Singh Gill, Mr. Narwal and himself. He described it as  
a non-violent organization that saw its role as supportive of  
the Babbar Khalsa in India, which he acknowledged used  
R. v. Malik and Bagri  
Page 353  
violence to advance its political objectives and could be  
construed by some as a terrorist organization.  
[799]  
Detective Sergeant Weston had a second interview  
with Mr. Bagri when he returned to Heathrow on December 3,  
1985. Mr. Bagri expressed concern that he was being singled  
out for special attention whenever he came through Heathrow.  
Detective Sergeant Weston testified that he explained that as  
a representative of the Babbar Khalsa, considered to be one of  
the most militant of the Sikh separatist groups, he should  
expect to be spoken to when traveling. Mr. Bagri appeared to  
accept this explanation and replied that if he was in India,  
he would be imprisoned without trial for his activities.  
[800]  
The two then spoke further about the Babbar Khalsa.  
Mr. Bagri agreed with Detective Sergeant Weston that the  
Babbar Khalsa was responsible for what the Indian Government  
would consider terrorist activities but was insistent that  
what he termed the organization’s “executive action” was  
confined to within India’s territorial boundaries. The Babbar  
Khalsa’s operations outside India, he said, were limited to  
providing moral and financial support to their “brothers” in  
India. He also explained that he was endeavouring to unite  
the Babbar Khalsa organizations in England and Canada under  
the leadership of Mr. Parmar.  
R. v. Malik and Bagri  
Page 354  
[801] Mr. Bagri described himself to Detective Sergeant  
Weston as a holy man of peace who did not engage in activities  
that would bring him into conflict with British and Canadian  
authorities. However, he did indicate that he was prepared to  
fight in India for Khalistan.  
3.  
[802]  
Other Evidence of Motive  
Teginder Singh was the head priest at the Sikh  
Temple in Hamilton, Ontario in 1984. He testified that  
Mr. Parmar and Mr. Bagri, whom he described as Mr. Parmar’s  
“right hand”, visited the Hamilton temple together on numerous  
occasions between July and October, 1984. During private  
meetings at the temple, Mr. Bagri advocated revenge against  
Hindus and the Indian Government, and said that the Babbar  
Khalsa was the only organization that could do anything for  
the Sikhs. Mr. Bagri also advocated boycotting Air India as  
it was an instrument of the Indian Government.  
B.  
Evidence of Inculpatory Statements  
1.  
a.  
Mr. C and Related Witnesses  
Overview  
[803]  
Crown witness Mr. C resided in New York during the  
1980s and was a member of a Sikh organization called the  
Deshmesh Regiment. His core evidence relates to a number of  
incriminating conversations he allegedly had with Mr. Bagri:  
R. v. Malik and Bagri  
Page 355  
1.Mr. C invited Mr. Bagri to his home following the WSO  
Convention at Madison Square Gardens in July, 1984. Mr.  
Bagri took him aside for a private conversation during  
which he said “tell to your guys, ‘Don’t go to jail for a  
small thing. We have stuff that can blow like a – like a  
block’”.  
2.Mr. C met Mr. Bagri at a gas station in New Jersey  
sometime after the Air India/Narita explosions. Mr. C  
expressed his concern to Mr. Bagri that the Deshmesh  
Regiment was being blamed for the disasters, to which Mr.  
Bagri replied “Why the fuck they bother you? We did  
this”.  
3.Mr. C spoke with Mr. Bagri at a pro-Khalistan conference  
in California in September, 1987. Mr. Bagri indicated  
that he did not trust certain members of the Babbar  
Khalsa because they might speak to the police about the  
Air India bombing. He also stated that they had expected  
the explosion one hour earlier.  
4.In December, 1987 Mr. C met Mr. Bagri at a Sikh temple in  
New York and asked him about making bombs. Mr. Bagri  
replied that he did not wish to discuss the matter  
because “walls have ears. Only two of us knows; a third  
person will know, for this we can go in jail”.  
5.In April, 1989, Mr. C spoke with Mr. Bagri about Mr.  
Reyat’s arrest and the potential that he might cooperate  
with the police. Mr. Bagri responded, “Don’t worry; he  
fucking don’t know nothing. Only two of us knows; nobody  
else”.  
[804]  
Mr. Bagri submits that these conversations either  
never occurred or, to the extent that they did, Mr. C has  
contorted the words to suit his purpose. He vigorously  
challenges Mr. C’s credibility, characterizing him as an  
individual of base character motivated by extreme self-  
interest.  
R. v. Malik and Bagri  
Page 356  
[805] Mr. C became an informant to the FBI in 1985.  
Former agent Ronald Parrish (“Mr. Parrish”) was a special  
agent with the Sikh desk of the FBI’s international terrorism  
squad at its New York office at that time. He was Mr. C’s FBI  
handler for four years until his transfer out of the New York  
office in 1989. The Crown called Mr. Parrish to refute the  
defence’s allegations of recent fabrication and to clarify the  
narrative regarding the timing of the alleged statements.  
While most of his evidence will be canvassed under a separate  
heading, some of it is included in the review of Mr. C’s  
evidence that follows.  
b.  
Mr. C’s Background  
i. General  
Mr. C is a practicing Sikh from the same village in  
[806]  
the Punjab as Mr. Bagri, where they were friends as children.  
Mr. C left India in 1973 and has resided in the United States  
since 1983. Their first meeting in North America was at the  
WSO convention at Madison Square Gardens in July, 1984.  
ii. Criminal History  
[807]  
Mr. C was charged with two criminal offences in  
India. The first arose from an altercation with a brother in  
August, 1965, resulting in his death. Mr. C was convicted of  
manslaughter and sentenced to seven years imprisonment. He  
R. v. Malik and Bagri  
Page 357  
was acquitted on appeal on a finding of self-defence after  
serving a little over two years of his sentence.  
[808]  
The second incident occurred in 1972, when another  
of Mr. C’s brothers stabbed a member of an opposing political  
party during the course of an argument. Mr. C testified that,  
although he had had no part in the incident, he was falsely  
accused by his political opponents of being involved. Fearing  
arrest, he left his village.  
[809]  
Mr. C left India in 1973 and went to work aboard a  
Greek cargo ship. He returned to India in 1979 to resolve the  
outstanding charge. He was arrested and detained, but was  
acquitted at trial. His brother had been convicted with  
respect to the same incident but had been acquitted on appeal  
in 1979.  
[810]  
Mr. C denied that he left India to avoid being  
charged, claiming that he would not have ultimately turned  
himself in if that had been his motive. He also denied the  
suggestion that he only returned when he knew that his  
brother’s acquittal rendered his own acquittal likely. He  
testified that he had not been aware of that acquittal prior  
to his return.  
R. v. Malik and Bagri  
Page 358  
[811] Mr. C was convicted of assault in February, 1985, by  
which time he was residing in the United States. He testified  
that the incident arose from a struggle to gain control of a  
microphone during a meeting at a Sikh temple in New York. He  
was fined and given a conditional discharge. He was also  
twice fined in 1996 for minor infractions arising from his  
operation of a limousine.  
iii. The Deshmesh Regiment and the New Orleans  
Incident  
[812]  
Following the attack on the Golden Temple, Mr. C,  
like many other Sikhs, felt that an independent Khalistan was  
necessary to eliminate ongoing mistreatment at the hands of  
the Indian Government. He therefore assisted in organizing  
the Deshmesh Regiment, an organization whose activities he  
described as educating Americans about the Sikh cause and  
raising money for the families of the victims of Operation  
Bluestar. The Deshmesh Regiment had approximately 400  
members, with Mr. C as [an executive member].  
[813]  
Mr. C testified that he sought to achieve an  
independent Khalistan through diplomacy and other peaceful  
means. He did not condone violence, though admitted that  
after Operation Bluestar he was initially of the view that  
violence might be necessary to that end. However, he re-  
R. v. Malik and Bagri  
Page 359  
adopted his non-violent stance after the Deshmesh Regiment  
came to be labelled a terrorist organization following certain  
events in New Orleans in May, 1985.  
[814]  
On May 4, 1985, six members of the Deshmesh Regiment  
went to New Orleans to assassinate a former Indian Government  
official, Bhajan Lal, who was in the United States for medical  
treatment. Their plan failed and four of them were arrested,  
including Deshmesh Regiment president, Gurpartap Singh Birk.  
Two others, Lal Singh and Dalbir Singh, escaped. Lal Singh  
spoke to Mr. C on the telephone from New Orleans and asked him  
to send airline tickets so that he and Dalbir Singh could  
return to New York. Mr. C testified that he gave the  
secretary of the Deshmesh Regiment, Joginder Singh, money to  
procure the tickets. He subsequently saw both Lal Singh and  
Dalbir Singh a number of times in New York but following a  
police raid on their residence, never saw Lal Singh again. He  
later attended the funeral of Dalbir Singh, as described in  
evidence led in camera. The four Deshmesh Regiment members  
who had been arrested were convicted and received prison  
sentences.  
[815]  
Mr. C testified that he had been unaware of the  
assassination plot prior to its attempted execution. Other  
members of the Deshmesh Regiment knew of his opposition to the  
R. v. Malik and Bagri  
Page 360  
use of violence to achieve their goals and therefore did not  
inform him in the belief he would be likely to try to stop  
them.  
[816]  
Mr. C’s knowledge of what had transpired in New  
Orleans at the time he provided the money for the tickets was  
the subject of cross-examination. He testified in direct that  
Lal Singh had told him during their telephone conversation  
that they had gone to New Orleans to kill Bhajan Lal but that  
four had been arrested and two of them had managed to escape.  
In cross-examination, however, he denied having been told  
this. When his contrary evidence in direct was put to him, he  
replied that Lal Singh had told him that they had gone to New  
Orleans to do “some work” and that some of them had been  
arrested, only learning the details later. In further cross-  
examination, Mr. C testified that Lal Singh had told him that  
“they were there for Bhajan Lal” and that four of them had  
been picked up and two of them had escaped. He had inferred  
from this that they had gone to New Orleans to kill Bhajan  
Lal. He explained his earlier denial as a mistake. Mr. C  
denied that he had been aware that Lal Singh and Dalbir Singh  
were wanted by the FBI when he provided the financial  
assistance they had requested.  
R. v. Malik and Bagri  
Page 361  
[817] Mr. C was questioned whether he had told the FBI  
after having become an informant that it had been Joginder  
Singh who had provided the funds to procure the airline  
tickets for Lal Singh and Dalbir Singh to flee from New  
Orleans. He did not recall whether he had done so and denied  
having sought to deflect attention away from himself.  
[818]  
Mr. C was further cross-examined about whether he  
had participated in mercenary training, which he denied. He  
could not explain the presence of his name on a list of 20  
individuals the FBI suspected had engaged in mercenary  
training, seized from Mr. Birk after his arrest in New  
Orleans. He was also questioned about information he had  
provided the FBI in the early stages of his becoming an  
informant, some of which pertained to mercenary training. He  
was asked, for example, whether he had provided a different  
list of 20 Sikhs scheduled for such training, this one not  
including his name. While initially claiming lack of recall,  
he later conceded that it was likely he had done so. He also  
agreed that he had informed the FBI that the purpose of the  
training was to send Sikhs in smalls groups into India to aid  
in the struggle for Khalistan, and that he had received this  
information from Lal Singh and others.  
R. v. Malik and Bagri  
[819] Mr. C agreed that he had been aware of the  
Page 362  
expenditure of $5,000 by the Deshmesh Regiment to finance  
military training for some of its members prior to the New  
Orleans incident but testified that the proposed use of the  
funds had been kept from him until after the fact.  
[820]  
Mr. C testified that he quit the Deshmesh Regiment  
in 1985 after differences arose, primarily with respect to the  
use of violence.  
[821]  
After Operation Bluestar, Mr. C and a group of  
friends attended a shooting gallery in New York on several  
occasions for gun training. He testified that as an illegal  
immigrant, he was concerned about being deported and wanted to  
be able to defend himself in the event he was returned to  
India. However, in cross-examination he repeatedly denied  
having feared deportation.  
iv. The Air India/Narita Explosions  
[822]  
Mr. C heard about the Air India/Narita explosions  
while at a WSO convention in California. When he returned to  
his apartment, his roommates told him of two or three calls  
from “strange peoples” who had been asking for him. They were  
concerned that these calls might have been from the police or  
FBI.  
R. v. Malik and Bagri  
Page 363  
[823] On the day of his return, Mr. C received a telephone  
call from someone who claimed to be a Vancouver reporter  
inquiring whether he knew anything about the Air India  
incident and Sikh celebration of this event. He replied that  
a true Sikh could not kill so many innocent people. He  
testified that as an illegal immigrant, he was concerned that  
this individual might be from the American or Canadian  
authorities, and not a reporter. Mr. C and his roommates  
changed their telephone number as a result.  
[824]  
Mr. C had been aware at the time that the names and  
photographs of Lal Singh and Dalbir Singh were being  
circulated in the media as FBI fugitives and suspects in the  
Air India disaster. He initially denied knowing that the  
media had reported that the Deshmesh Regiment and Sikh Student  
Federation had claimed responsibility for the Air India  
disaster but later acknowledged having read newspaper articles  
to that effect. He reluctantly agreed that he had been  
worried that he might be personally implicated in the Air  
India disaster since he was [an executive member] of the  
Deshmesh Regiment, to which both Lal Singh and Dalbir Singh  
belonged. However, he denied that this concern led him to  
become an informant for the FBI.  
R. v. Malik and Bagri  
v. Becoming an FBI Informant  
The failed assassination attempt in New Orleans led  
Page 364  
[825]  
Mr. C to believe that the activities of hard-liners in the  
Deshmesh Regiment would jeopardize their goal of an  
independent Khalistan and put innocent Sikhs at risk of arrest  
and deportation. He began placing anonymous calls to the FBI  
under the pseudonym “John”, informing them that he was a  
member of the Deshmesh Regiment and providing names of members  
about whom he was concerned so that they could “keep an eye on  
them”. After two or three such calls, he was transferred to  
Mr. Parrish.  
[826]  
Mr. C testified that he first contacted the FBI  
shortly after the New Orleans incident and prior to the Air  
India/Narita explosions. The evidence of Mr. Parrish places  
the first telephone call from “John” on May 21, 1985.  
[827]  
Mr. C was rigorously cross-examined regarding his  
motivation for becoming an FBI informant. He consistently and  
adamantly denied that he had been motivated by fear of  
deportation or implication in the New Orleans incident and/or  
Air India bombing.  
[828]  
Mr. Parrish testified that the explanation Mr. C had  
provided for becoming an informant was that the FBI and  
Immigration and Naturalization Service (“INS”) were putting  
R. v. Malik and Bagri  
Page 365  
substantial pressure on the Sikh community and deporting  
people who had given only nominal donations to the Deshmesh  
Regiment. He therefore wanted to direct the FBI to  
individuals who were involved at a higher level than these  
minor donors.  
[829]  
Mr. Parrish testified that the information from  
“John” was of interest to the FBI so they initiated attempts  
to identify him by conducting raids on known addresses of the  
Deshmesh Regiment hierarchy. Mr. C’s apartment was raided by  
the FBI and INS that summer. Mr. Parrish testified that the  
FBI opened their file on Mr. C on July 29, 1985, and that the  
raid had been conducted a couple of days prior.  
[830]  
Early in the raid, Mr. C identified himself as  
“John” to Mr. Parrish. In a subsequent meeting between the  
two, they discussed the potential of his becoming an  
informant. Mr. C testified that they did not discuss monetary  
or immigration assistance in exchange for information during  
this or any subsequent conversation.  
[831]  
Mr. C testified that, thereafter, he and Mr. Parrish  
kept in contact by telephone and met when necessary. He would  
contact Mr. Parrish whenever he had information to supply and  
the two would meet within a few days. Mr. Parrish added that  
R. v. Malik and Bagri  
Page 366  
he met with Mr. C frequently, once per week at a minimum and  
sometimes every other day.  
vi. Assistance from the FBI  
Financial Assistance  
[832]  
Mr. C testified that there had never been any  
arrangement between him and the FBI for him to supply  
information about Air India in exchange for financial  
assistance. Over the course of his dealings with them, the  
FBI paid him periodic sums which he understood were for  
expenses. He testified that he never asked for payment, nor  
did he ever make the passing of information conditional upon  
payment. According to Mr. Parrish, Mr. C was paid $1,000 for  
expenses and $2,075 for information regarding Air India  
between September, 1985 and 1989, an insignificant amount of  
money by FBI standards at the time.  
Immigration Assistance  
[833]  
Mr. C entered the United States illegally in 1983.  
He had been working for a Greek shipping line and had obtained  
a visa to enter the country for the purpose of joining a Greek  
freighter in New York. He testified that it had never been  
his intention to join this ship, however, and he used the visa  
simply to enter the country.  
R. v. Malik and Bagri  
Page 367  
[834] Mr. C applied for political asylum in the wake of  
Operation Bluestar but his application was denied in 1985. He  
had become an informant by this time and forwarded his letter  
of denial to Mr. Parrish who was able to arrange a six month  
extension of departure from the INS.  
[835]  
Mr. C left the United States in 1986 to attend the  
funeral of his mother in England. He did not have status to  
re-enter the United States, and contacted Mr. Parrish from  
London seeking assistance. Mr. Parrish interceded with the  
INS and was able to secure a “parole in the public interest”  
to permit him to return to the United States in September,  
1987.  
[836]  
Mr. C then applied in 1987 under an amnesty program  
designed to facilitate permanent resident status for illegal  
immigrants who had worked as agricultural workers. Never  
having worked on a farm, he used false documentation for this  
application and turned once again to Mr. Parrish when this was  
discovered. Mr. Parrish interceded with the INS to ensure  
that Mr. C obtained the necessary immigration status.  
[837]  
The FBI also assisted Mr. C each time his temporary  
resident status was due to expire in 1989, 1990 and 1992.  
R. v. Malik and Bagri  
Page 368  
[838] Mr. C applied for political asylum a second time in  
1993 and, with the assistance of the FBI, was successful in  
1996. While testifying that he had a slight fear of  
persecution in India because of his pro-Khalistan activities,  
he candidly admitted that he was “not so much afraid” and had  
applied for asylum as a means of obtaining legal status in the  
United States. He traveled to India for an extended visit in  
1986 and has returned on an almost annual basis since 1989.  
[839]  
While acknowledging that the FBI had assisted him  
with his immigration difficulties over the years, Mr. C  
testified that there was never any agreement that he would  
supply information in exchange for this assistance. He also  
denied that it was ever his assumption or understanding that  
the FBI would assist him with his immigration issues so long  
as he continued to supply information.  
[840]  
Mr. Parrish similarly testified to the absence of  
any agreement that the FBI would assist Mr. C with his  
immigration matters in exchange for information regarding Air  
India. He acknowledged that the FBI had an interest in  
keeping Mr. C in the country as a source of information about  
Sikh terrorist matters, and that he interceded with the INS on  
Mr. C’s behalf as noted above in furtherance of these  
interests.  
R. v. Malik and Bagri  
vii. Additional Immigration Matters  
The defence cross-examined Mr. C extensively  
Page 369  
[841]  
regarding his various immigration applications, including his  
two for political asylum, his agricultural worker amnesty  
application, and a more recent one for United States  
citizenship in 2001. With respect to this latter application,  
for example, Mr. C was questioned why he had not included his  
arrests in India when responding to a question about his  
criminal history. He replied that he had not considered it  
relevant since the application was for the United States.  
When it was pointed out to him that the question went on to  
ask for the city and country where any incidents had occurred,  
he replied that his lawyer who had prepared the application  
had not asked him about his problems in India.  
[842]  
He was also asked about his response to a question  
regarding present and past memberships in organizations and  
associations. Mr. C had indicated “none” on the application,  
though he agreed that he had been [an executive member] of the  
Deshmesh Regiment in 1985. His explanation for not including  
this information was that his lawyer had not asked him about  
this issue. Mr. C acknowledged that in signing the  
application he was swearing an oath that the information  
contained therein was correct.  
R. v. Malik and Bagri  
Page 370  
[843] Mr. C was questioned in similar depth regarding his  
other applications. The essence of his evidence was that he  
had not been truthful in completing them since, as noted  
above, he did not have a legitimate fear of persecution in  
India as required for asylum, nor had he been an agricultural  
worker as required for the amnesty program.  
[844]  
Mr. C was also cross-examined about an application  
to the Indian Consulate in New York in late 2003/early 2004  
for a replacement passport. He admitted that he had submitted  
a false affidavit in which he deposed that he had never  
applied for nor had been granted political asylum, explaining  
that he had lied for his safety, not to harm anyone. Had he  
not lied, he stated, he would not have been issued a  
replacement passport and would have been unable to travel  
following his testimony in the present proceedings.  
c.  
Mr. Bagri’s Alleged Statements to Mr. C  
i. Post-MSG Speech Statement  
Mr. C attended the WSO convention at Madison Square  
[845]  
Gardens in July, 1984, where he saw Mr. Bagri for the first  
time since leaving India over ten years earlier. He testified  
that he approached Mr. Bagri following his speech and invited  
him back to his apartment to meet some of the members of the  
Deshmesh Regiment and Sikh Student Federation. At the  
R. v. Malik and Bagri  
Page 371  
apartment there was talk of the Khalistan movement and  
exacting revenge against the Indian Government, though Mr. C  
said that he did not pay attention to what Mr. Bagri was  
saying. When the group was about to depart, Mr. Bagri called  
him into the adjoining bedroom for a private conversation  
during which he said “Tell to your guys, ‘Don’t go to jail for  
a small thing. We have a stuff that can blow like a – like a  
block’”. Mr. C did not ask Mr. Bagri what he meant by this  
comment.  
[846]  
Mr. C was cross-examined on a statement regarding  
this meeting that he had given the FBI in July, 1992. He  
agreed telling the agents that although he was not a party to  
all of the various conversations that had been going on  
because he was preparing tea for his guests, he recalled  
conversations about the attack on the Golden Temple, the  
formation of the WSO, and a planned demonstration in  
Washington, D.C. during a visit by Rajiv Gandhi. No specific  
acts of violence or terrorism had been discussed.  
[847]  
Mr. C also agreed having told the agents that Lal  
Singh, Mr. Birk (the President of the Deshmesh Regiment), and  
other Deshmesh Regiment members had met privately with  
Mr. Bagri in the bedroom and that he had not known at the time  
what had been discussed. He told the agents that after the  
R. v. Malik and Bagri  
Page 372  
meeting had ended and Mr. Bagri was leaving, Mr. Bagri told  
Mr. Birk that if he (Mr. Birk) needed anything, he (Mr. Bagri)  
could get it for him.  
[848]  
Mr. C did not relay his private meeting with  
Mr. Bagri to the agents, explaining they had come with  
prepared questions and had not specifically asked him about  
it.  
ii. Gas Station Conversation  
[849]  
Mr. C testified that he received a telephone call  
from an Avtar Singh following his return home from work a  
couple of weeks after the Air India incident. Avtar Singh  
told him that Mr. Bagri was in town and wished to see him. He  
gave Mr. C directions to a gas station in New Jersey,  
approximately 45 minutes away. One of Mr. C’s roommates,  
Gurmit Singh, drove him to the gas station. Mr. C testified  
that he generally arrived home from work at 3:00 p.m., and  
that it was still daylight when he reached the gas station.  
He worked weekdays at a restaurant in Manhattan.  
[850]  
Mr. Bagri was in the office with a number of people  
from the Toronto/Hamilton area with whom he regularly  
traveled. Mr. C identified them as Tejinder Singh Kaloe,  
Sadhu Singh, Gurmit Singh and Gurcharan Singh Banwait. Avtar  
R. v. Malik and Bagri  
Page 373  
Singh and others whom Mr. C did not know were also present.  
They all exchanged greetings and spoke for 10–15 minutes in  
the office. Mr. C then had a private conversation with Mr.  
Bagri outside the office.  
[851]  
Mr. C spoke to Mr. Bagri about his fear that he and  
the Deshmesh Regiment might be blamed for the Air India  
disaster. He explained to him how he had received telephone  
calls after the Air India bombing that he thought might have  
been from the FBI, CSIS or the RCMP, and that newspapers were  
reporting that the Deshmesh Regiment and the Sikh Student  
Federation were being blamed. Mr. C testified that his hope  
was that Mr. Bagri might be able to assist him if he somehow  
got into trouble over the Air India incident. According to  
Mr. C, Mr. Bagri replied, “Why the fuck they bother you?”,  
then smiled and said, “We did this”.  
[852]  
Mr. C testified that he was shocked and stunned at  
Mr. Bagri’s remarks, so much so that he did not follow up with  
any questions. The two men then had an unrelated conversation  
and returned to the office. Mr. C remained at the gas station  
for a period of time and then left to return to New York.  
[853]  
In the summer of 1985, Mr. C was living in an  
apartment on [ ] Avenue in New York with Gurmit Singh, Jessie  
Parmar, Paramjit Singh and Balbir Singh. Upon returning to  
R. v. Malik and Bagri  
Page 374  
his apartment following his meeting with Mr. Bagri, Mr. C  
testified that he recounted to his four roommates what Mr.  
Bagri had said. Jessie Parmar was from the same village in  
India as Talwinder Singh Parmar, and had been upset over the  
death of relatives in the Air India explosion. Mr. C  
testified:  
Then I – we were together. I said, hey, Jessi,  
look, your people have done this. That’s what  
I said to him. That Bagri has admitted that we  
did this and that is your peoples.  
Q
A
Okay. When Bagri said, we did this, did you  
assume that one of those people was Talwinder  
Singh Parmar?  
Yes. We mean that somebody was with him and he  
was second and he was the first person in the  
BK in Vancouver. That I mean that he mean that  
was Talwinder Singh Parmar.  
Q
A
And so when you said to Jessi Parmar, your  
people did this, you meant people with the same  
name or from the same village?  
The same village, there is three, four villages  
all are Parmar, the last – their names. That  
what I mean.  
Q
A
Okay. And did you tell these people, your  
roommates, what Bagri had said to you?  
Yes, I told them that Bagri has admitted that  
they did this or we did this. So I told them,  
look, your people have done this.  
[854]  
Mr. C testified that he met with Mr. Parrish two or  
three days later and related his conversation with Mr. Bagri.  
R. v. Malik and Bagri  
Page 375  
[855] Mr. C was cross-examined about the timing of this  
meeting with Mr. Bagri, and was equivocal about how long after  
the Air India incident it occurred. Although he repeatedly  
stated that it happened a couple of weeks after the incident,  
he explained, when pressed, that “a couple of weeks” simply  
meant more than one week and could mean two, four, ten or  
twenty weeks. When it was then put to him that Gurmit Singh  
could not have driven him to the gas station given his  
evidence that his roommates had left the apartment a couple of  
days following the raid, Mr. C testified that they may have  
left some weeks after the raid. He then said that he could  
not specifically recall how long after the raid they had left  
given the passage of time. He remained adamant that his  
meeting with Mr. Bagri occurred after the raid.  
[856]  
Mr. C had testified in direct examination that his  
roommates dispersed a couple of days following the FBI/INS  
raid on his [ ] Avenue apartment and that he had not seen any  
of them since 1986. Unable to afford the rent, he moved to  
the Bronx two or three months later. His roommates in the  
Bronx were “one other Gurmit Singh”, Gurmit Singh’s brother-  
in-law, and Daudhria Harjinder.  
R. v. Malik and Bagri  
iii. Stockton Conference Conversation  
In 1987, Mr. C attended a pro-Khalistan conference  
Page 376  
[857]  
in Stockton, California at the direction and expense of the  
FBI. His purpose in attending was to speak to Mr. Bagri and  
attempt to elicit further information about the Air India  
incident.  
[858]  
Mr. C spoke with Mr. Bagri outside the convention  
room but within the temple’s compound following the  
proceedings. A surveillance team captured photographs of this  
meeting, unbeknownst to Mr. C until trial. According to Mr.  
C, the Babbar Khalsa had split into two groups by this time, a  
Hamilton group lead by Tejinder Singh Kaloe and the  
Parmar/Bagri group. Mr. C inquired of Mr. Bagri the reason  
for this split:  
…
A
When I ask why Tejinder Singh Kaloe and other  
guys have split from your group, then he said  
that we don’t trust them. And he mentioned  
mostly for Tejinder Singh Kaloe that we don’t  
trust him; maybe he will tell to the police  
about the Air India bombing.  
Q
A
Okay. And did you also have a discussion about  
the timing of the bombs?  
Yes, I discussed with them. Because it was in  
the newspaper that – and we knew that. One  
bomb has been exploded in the sky and the other  
was on the ground at the Narita Airport. We  
R. v. Malik and Bagri  
Page 377  
ask, how this happen. And then he said, they  
were expecting one hour earlier.  
…
Q
And did he say what or which bomb was expected  
one hour earlier or anything more than that?  
A
No. He didn’t mention any which one first or  
which one is late.  
Q
A
Did you ask him anymore questions about that?  
No, I did not ask him any more questions about  
this.  
Q
A
Okay. Why didn’t you?  
This was – I have no chance because some other  
guys interfered with us and I no ask him  
anything.  
[859]  
Mr. C testified that although people were milling  
about, no one else participated in their conversation. He  
reported it to Mr. Parrish several days after returning to New  
York.  
[860]  
It was suggested to Mr. C in cross-examination that  
this conversation with Mr. Bagri had been nothing more than  
the two of them innocently conjecturing and expressing  
opinions about what they had read in the newspaper. He  
confirmed that he had asked the question of Mr. Bagri based on  
newspaper articles he had read but maintained that Mr. Bagri  
replied “We were expecting one hour earlier”.  
R. v. Malik and Bagri  
Page 378  
[861] It was also suggested to Mr. C that he was not  
certain that this conversation had, in fact, occurred at  
Stockton. When he maintained that it had occurred as he had  
testified, the defence challenged him with his prior  
statements, as will be canvassed below.  
[862]  
Finally, Mr. C was questioned whether during the  
conversation, Mr. Bagri, in referring to Tejinder Singh Kaloe,  
expressed concern that he might “blame” them for the Air India  
incident rather than “tell the police”, as Mr. C had  
testified. He initially denied having used the word “blame”  
and maintained that Mr. Bagri had said that Mr. Kaloe might  
tell the police. When a statement to the RCMP on March 14,  
2000, wherein he had used the word “blame” was put to him, he  
equivocated about whether he drew a distinction between blame  
and telling the police.  
iv. Richmond Hill Temple Conversations  
“The Walls Have Ears”  
[863]  
Mr. C subsequently met Mr. Bagri at the Richmond  
Hill Temple in New York in December, 1987. He spoke with Mr.  
Bagri following Mr. Bagri’s address to the congregation. He  
testified:  
A
Just – I spoke with him when we finished from  
the main hall of the congregation and we came  
out on the road in front of the Gurdwara. And  
R. v. Malik and Bagri  
Page 379  
we had a chance to speak with each other. And  
a lot of people are going around to pick up  
their shoes and going to pack their cars and I  
get a chance to talk to him, if he can tell me  
how they build the bomb. And he said he don’t  
want to open his mouth because the walls have  
ears. Only two of us knows; a third person  
will know, for this we can go in jail.  
Q
A
All right. And why did you ask him how to make  
a bomb?  
So I tried my best to get some information from  
him about how did they build the bomb for Air  
India.  
Q
A
Q
How they built the bomb for Air India?  
Yes.  
All right. And when he said, only two of us  
know, did he say, only two of us know about  
what, or what did he say about that?  
A
It was my thinking that maybe he and Talwinder  
Singh Parmar, they know about how they build  
the bomb.  
[864]  
Only Mr. C and Mr. Bagri were involved in this  
conversation. He reported it to Mr. Parrish, likely two to  
three days later.  
Reyat Extradition Conversation  
[865]  
Mr. C also testified about a conversation he had  
with Mr. Bagri regarding Mr. Reyat outside the Richmond Hill  
Temple in April 1989. Mr. C had heard that Mr. Reyat had been  
arrested and raised the matter with Mr. Bagri outside the  
temple. He testified:  
R. v. Malik and Bagri  
Page 380  
A
And after we finished the congregation  
ceremonies, we came out. At that time I  
learned that Mr. Reyat has been arrested. And  
I talked to him outside, look, guys, you will  
be in trouble that Reyat – I know that Reyat  
has been arrested and maybe he will cooperate  
with the police.  
Q
A
Yes.  
And then he said, don’t worry; he fucking don’t  
know nothing.  
COURT:  
I didn’t hear that.  
MR. CAIRNS:  
Q
A
Would you repeat that, please.  
Yes. Bagri said, don’t worry; he fucking don’t  
know nothing. Only two of us knows; nobody  
else.  
[866]  
Mr. C testified that, as on the previous occasions,  
only the two of them participated in the conversation.  
[867]  
Mr. C was cross-examined about certain of his prior  
statements to the RCMP regarding the Stockton and two Richmond  
Hill Temple conversations:  
• An RCMP Continuation Report of October 18, 1996  
notes:  
-source [Mr. C] spoke to BAGRI a second time in  
New York after the arrest of REYAT (exact time  
and date unknown) and source believed they  
spoke in person. Source asked BAGRI about  
REYAT’s arrest. …  
It was pointed out to Mr. C that this passage was  
preceded by a discussion about the Avtar Singh gas  
station conversation, and that in referring to the  
R. v. Malik and Bagri  
Page 381  
Reyat extradition conversation as his second with  
Mr. Bagri he appeared to have forgotten the 1987  
“walls don’t have ears” conversation. He replied  
that this was the first time he had spoken with  
Insp. Nash of the RCMP and even then, only briefly.  
The passage of time had affected his memory at the  
time of his statement but it had been subsequently  
refreshed.  
• Insp. Nash’s notes of a meeting with Mr. C on  
February 28, 1997 record Mr. C as relating the Reyat  
extradition conversation as his second with Mr. Bagri  
after that at the gas station. When the omission of  
the “walls have ears” conversation was put to him,  
Mr. C acknowledged that he recalled the content of  
his various conversations with Mr. Bagri but that he  
did not have much recollection as to when and where  
they had occurred.  
• Mr. C provided a statement to the RCMP on March 4,  
1997. After an exchange about the gas station  
conversation, the following questions and answers are  
recorded:  
Q11: Do you remember another time when you spoke to  
Ajaib Singh Bagri about the Air India crash?  
A11: After REYAT was extradited back to Canada I met  
with Ajaib Singh somewhere around New York  
either at a house or a temple. This was before  
the case went to court. I took him somewhere  
separated from the other people and I told him  
that you people will be in trouble now because  
Inderjit Singh REYAT is back in Canada with the  
police and maybe the police will force him to  
testify against you and then he said, “don’t  
worry he fucking don’t know nothing”.  
[Q12 and Q13 were follow-up questions.]  
Q14: Do you remember any other conversations you had  
with Ajaib Singh about the Air India crash?  
A14: Sometime, I don’t remember when but during one  
of these conversations he has also mentioned  
that they were expecting this crash one hour  
earlier.  
R. v. Malik and Bagri  
Page 382  
Mr. C agreed in cross-examination that he had omitted  
the “walls have ears” conversation but explained that  
the FBI had not yet assisted him in refreshing his  
memory. Regarding the vagueness of his account of the  
conversation he alleged took place at Stockton, he  
similarly testified that he had not been prepared to  
testify at the time of the statement so had not yet  
collected his memories as to where particular  
conversations occurred.  
• An RCMP Continuation Report of July 5, 1997 notes that  
Mr. C “recalled that the conversation with Bagri  
relating to Reyat occurred while Reyat was in custody in  
England and the conversation took place in Stockton,  
California”. When it was put to Mr. C that Mr. Reyat  
had not yet been arrested at the time of the Stockton  
conference in 1987, he responded that he had been more  
concerned about relating the substance of his  
conversation with Mr. Bagri than its timing.  
• Cpl. Nash’s notes from the March 14, 2000 memory  
refreshing exercise indicate that Mr. C could not  
specifically recall where the conversation about walls  
having ears had taken place. On the stand, Mr. C  
testified that he could recall, and that it had taken  
place outside the main hall, on a sidewalk or on the  
road.  
[868]  
In response to the repeated questioning about the  
state of his memory at the time of his various statements, Mr.  
C made the following comment:  
My Lord, I want to explain little bit briefly about  
confusion or memories. I remember Ajaib Singh Bagri  
met in my apartment when he said, tell to your guys  
don’t go to jail small thing; we have enough stuff  
to blow up like a block. I remember he said, why  
the fuck bother you; we did this. I remember he  
said, don’t worry; he fucking don’t know nothing. I  
remember he said to me he don’t want to open the  
mouth, wall have ears. Only two of us we knows. If  
third person come to know, we can go to jail. These  
things I remember all the time in my life. I can  
R. v. Malik and Bagri  
Page 383  
never forget. But this is different thing if I’m  
saying in ’96 when I’m not ready to testify. It  
happened in 1987. After nine years if I’m telling  
second time or third time, but it was happen with me  
one time. Two time, three times, if I’m saying  
second time or third time, I think is no difference  
for me. What he said to me, I’m saying the same  
thing.  
v.  
The Lachine Temple Speech  
[869]  
Of lesser significance is a speech by Mr. Bagri at  
the Lachine Temple in Montreal in 1989. Mr. C testified that  
he attended a Babbar Khalsa convention at the temple during  
which Mr. Bagri gave a speech blaming the Government of India  
for the Air India crash and in which he referred to the book,  
Soft Target. Mr. C did not have the opportunity to speak with  
Mr. Bagri alone.  
d.  
[870]  
Mr. C’s Relationship with the RCMP  
Upon becoming involved with the FBI, Mr. C was  
initially unwilling to reveal his identity or testify in a  
Canadian court regarding Mr. Bagri’s statements. He did not  
wish to be labelled an informer and feared retaliation against  
his family in India. Although aware of the RCMP’s $1 million  
reward, he never applied for it since he was not prepared to  
testify.  
[871]  
Mr. C testified that after repeated requests by the  
FBI, he agreed to meet with Insp. Nash of the RCMP in 1996.  
R. v. Malik and Bagri  
Page 384  
He eventually decided to forego his anonymity and testify at  
trial, explaining his change of mind as follows:  
It was very hard to make me this decision. But I  
keep thinking – I keep thinking many years if I no  
testify, it will be very bad decision by myself and  
it will be also bad for the world if they don’t know  
– they didn’t know what Bagri had said to me.  
And it will be very good for the world, for the Sikh  
nation, for all the peoples, if I go to testify and  
tell the peoples and the world what had happened,  
what he was said, told me.  
[872]  
Mr. C received the sum of $300,000 USD from the  
RCMP. He testified that the money was for the protection of  
himself and his family, and that it gave him the ability to  
travel upon completion of his testimony. He further testified  
that he was not motivated to testify against Mr. Bagri by this  
money, stating that he had provided the FBI with the same  
information regarding his conversations with Mr. Bagri many  
years earlier.  
[873]  
The negotiations that led to the payment of the  
$300,000 USD were the subject of lengthy cross-examination,  
drawn primarily from Insp. Nash’s notes and continuation  
reports recording his and Insp. van de Walle’s dealings with  
Mr. C regarding this matter. Mr. C’s evidence, in summary,  
was as follows:  
R. v. Malik and Bagri  
Page 385  
February 28, 1997  
Mr. C met with Inspectors Nash and van de  
Walle. This was his second meeting with  
Insp. Nash and his first with van de  
Walle. Mr. C asked what he would be paid  
to testify. Insp. van de Walle informed  
him that the RCMP would not pay him to  
testify but would provide him money for  
the security of himself and his family.  
The officers also discussed the  
possibility of the Crown applying for him  
to testify under a publication ban or in  
camera, and told him he would not be  
forced to testify in the event neither of  
these applications was successful. Mr. C  
subsequently spoke privately with his FBI  
handler, Rachel Katz, and asked her to  
advise the RCMP that $500,000 was an  
appropriate sum.  
June 3, 1997  
Mr. C met with Inspectors Nash and van de  
Walle. They discussed how he would need  
to mention his FBI involvement when  
testifying, and his resulting concern  
that he would lose sympathy of Sikhs if  
his association with the FBI became  
known. He indicated that he would  
definitely not testify in the absence of  
a publication ban with respect to his  
evidence and the fact that he had been  
paid. There was some further discussion  
of this matter the following day.  
June 5, 1997  
Mr. C met with Inspectors Nash and van de  
Walle. Mr. C was adamant that he did not  
want his name published as a paid  
informant, and there was discussion about  
the possibility of a publication ban with  
respect to his identity. Insp. van de  
Walle informed him that he could decide  
not to receive payment for testifying but  
that, in the event he changed his mind in  
the future, he could approach the RCMP  
for money for his protection or for a  
portion of the $1 million reward at that  
time. Mr. C told the officers that he  
did not wish to testify but that they  
could “leave [his] name on the list”.  
R. v. Malik and Bagri  
Page 386  
September 30, 1999  
Mr. C advised Inspectors Nash and van de  
Walle that he had decided to testify.  
When asked whether he had a dollar figure  
in mind that would satisfy his concerns,  
he replied that he had previously advised  
Ms. Katz that he thought $500,000 was an  
appropriate amount. Later in the  
meeting, Insp. van de Walle informed him  
that that sum was high. Mr. C expressed  
concerns that when first approached by  
the RCMP he had been told that he could  
testify in a closed courtroom and under a  
publication ban. He and his family stood  
to lose their freedom and, as someone  
well known, he could not simply  
disappear. However, he indicated that he  
was prepared to consider any counter-  
offers.  
March 14, 2000  
Mr. C and Mr. Parrish engaged in a memory  
refreshing exercise, following which Mr.  
C provided a statement to the RCMP.  
Discussions about the quantum of payment  
continued. Insp. van de Walle suggested  
that the RCMP pay off his mortgage, thus  
permitting him to move quickly should the  
need arise. Mr. C asked what they would  
pay someone without a mortgage. When  
Insp. van de Walle suggested that  
$250,000 would be appropriate, he  
replied, “that means you don’t want me”.  
However, he then indicated a willingness  
to accept that amount so long as he did  
not have to reveal himself as a source  
and there was a publication ban on his  
evidence. He eventually countered with  
$300,000, the sum that was finally  
settled upon and that formed the basis of  
the release and indemnity contract  
executed on October 2, 2000.  
[874]  
Mr. C later contacted Inspectors Nash and van de  
Walle on December 9, 2003 and inquired as to when he would  
R. v. Malik and Bagri  
Page 387  
receive the additional $200,000 (bringing the total to  
$500,000). They replied that they had never told him he would  
receive any further money and that he knew this when he had  
signed the contract. At trial, Mr. C described his request  
for the additional sum as a “misunderstanding”. He explained  
how he had requested $500,000 at the outset of his  
negotiations with Inspectors Nash and van de Walle regarding  
his safety, and then continued:  
…they said they will talk to their bosses. All  
right. Then said it’s too much. Our bosses are not  
agree with this. Then I signed on $300,000, and it  
was my misunderstanding that their boss is saying  
that this will too much money for officially if they  
give me $500,000 and maybe they pay me later  
somehow.  
[875]  
Inspectors Nash and van de Walle traveled to New  
York on December 19 to discuss this matter further with Mr. C.  
He agreed that during these discussions, he told the officers  
that he required the $200,000 to live away from his residence  
for an extended period of time after trial. When his direct  
evidence that the purpose of the original $300,000 was to  
permit him to travel after the trial was put to him, he  
replied that his telling them that he needed the additional  
amount to travel was his misunderstanding. He reiterated that  
he had mistakenly understood that “maybe they will pay me  
later somewhere down the table or some kind of extra money”.  
R. v. Malik and Bagri  
Page 388  
Mr. C strongly denied that he had threatened not to testify  
unless he received this extra sum.  
[876]  
During these meetings with Inspectors Nash and van  
de Walle in New York, Mr. C expressed his concern that his  
daughter-in-law in India did not have a visa to travel to the  
United States, an issue he had previously raised with them in  
October 2001. He was also concerned that he still had not  
obtained a United States passport or citizenship. Inspectors  
Nash and van de Walle indicated they would try to assist. Mr.  
C contacted Inspectors Nash and van de Walle a number of times  
in January, 2004 with respect to immigration matters  
concerning both himself and various family members.  
[877]  
Mr. C went to India in early February, 2004 to deal  
with a family matter. He was scheduled to testify in the  
present proceedings before the date of his return ticket,  
March 9, 2004. He contacted Inspector Nash from India by  
telephone and informed him that it would be difficult for him  
to return before resolving his family problem. He asked  
Inspector Nash to buy him more time with the court, but  
Inspector Nash responded that this was not possible. Mr. C  
contacted Inspector Nash again on February 10 to request his  
assistance in arranging Canadian travel documents since he was  
fearful his Indian passport might be subject to seizure in  
R. v. Malik and Bagri  
Page 389  
light of his immigration issues. Inspectors Nash and  
van de Walle contacted Mr. C the following day, February 11,  
and informed him that they had arranged the necessary  
immigration documents and ticket for him at the Canadian  
consulate in New Delhi.  
[878]  
On February 12, Mr. C faxed a letter to Inspector  
Nash that read as follows:  
Dear Russ [Nash];  
I.  
I am sorry to say you that I was…I am want to  
testify in court, I do not want any travel document  
from Canadian Embassy in New Delhi. I would like to  
have visitor visa stamped on my pp [passport].  
II. I have asked 5 hundred thousands to testify but  
according to talking with you and Leon [van de  
Walle] all your promises did nothing. No  
citizenship, no my daughter-in-law and nothing my pp  
[passport]. If you want me testify please I want my  
2 hundred thousands to sent to me and nothing else.  
Tourist visa from your Embassy in New Delhi.  
Yours very obedient and truthful,  
John  
[879]  
Mr. C testified that he had sent this fax as a  
tactic to buy time from the court so that he could resolve his  
family matter in India, not because he genuinely sought the  
additional $200,000.  
[880]  
Inspectors Nash and van de Walle called Mr. C the  
following day to express their surprise at his fax. Mr. C  
R. v. Malik and Bagri  
Page 390  
testified that he, in essence, repeated the sentiments he had  
expressed in his fax. Inspector van de Walle indicated to him  
that they had already discussed how there would no further  
payment and that the RCMP had paid for legal advice so that he  
would understand the contract when he signed it. Mr. C went  
on to state to the officers that he felt his life was over and  
was prepared to stay in India but that he would feel bad if  
the case against Mr. Bagri was lost because he had not  
testified. He also expressed again his concern about his  
United States citizenship.  
[881]  
That same day, Mr. C received a telephone call from  
Chuck Frahm, an FBI agent, who questioned him about the fax.  
Agent Frahm told Mr. C that no further sums would be  
forthcoming and that he should cease making such requests.  
When Mr. C expressed his concerns about his American  
citizenship, Agent Frahm replied that fulfilling his  
commitment to testify would likely be viewed in a positive  
light with respect to his citizenship application.  
[882]  
[883]  
Mr. C never received the additional $200,000.  
He agreed that he was aware during the course of  
these negotiations that he could not be forced to come to  
Canada to testify.  
R. v. Malik and Bagri  
e. Further Evidence of Mr. C  
i. Relationship with Mr. Bagri  
Mr. C testified that he and Mr. Bagri had been  
Page 391  
[884]  
friends since their school days in the Punjab, though he was  
cross-examined about whether he had overstated the extent of  
their relationship.  
[885]  
In 1987, Mr. C was not a practicing Sikh. He was  
clean shaven and did not follow the “5 Ks”, certain religious  
tenets of Sikhism. He agreed that in 1987/1988 he had  
concerns that Mr. Bagri did not trust him because of that and  
the fact that he drank alcohol. He could not recall saying  
this but did not deny advising Mr. Parrish the following,  
recorded in an FBI telex dated January 14, 1988:  
IA [informational asset, Mr. C] advised the NYO [New  
York Office] that Bagri and IA used to know each  
other extremely well in India and shared all their  
secrets before leaving India. IA stated that since  
Bagri has become a religious person and involved in  
BK activities, he has lost much of the trust of the  
source just from not being with him. IA will  
attempt to redevelop this trust…  
ii. Conversations with Kamal Jit  
[886]  
Mr. C was cross-examined about conversations the  
defence alleges he had with a friend, Kamal Jit. He denied  
most of the suggestions put to him, including that he had  
asked Mr. Jit to communicate to the Bagri family that he would  
R. v. Malik and Bagri  
Page 392  
go live under a new identity in India if they looked after him  
financially, and that he had also asked Mr. Jit to inquire of  
Mr. Bagri’s counsel how he could testify to assist Mr. Bagri.  
[887]  
Mr. C also denied suggestions that he had made  
statements about falsely implicating Mr. Bagri to a Mohan  
Singh Bagri and a Sohan Lal.  
f.  
The Evidence of Mr. Parrish  
i. The New Orleans Incident  
Mr. Parrish testified that the FBI had considered  
[888]  
Mr. C a person of interest in relation to the New Orleans  
conspiracy at the time of the FBI/INS raid on his apartment in  
July, 1985. Among other reasons, documents seized from Mr.  
Birk after his arrest in New Orleans identified Mr. C as [an  
executive member] of the Deshmesh Regiment and a possible  
mercenary trainee.  
[889]  
Mr. Parrish spoke with Mr. C about his involvement  
in the New Orleans conspiracy during their early meetings.  
Mr. C informed him that he had received a call from New  
Orleans requesting money and that, as [an executive member],  
he had provided it. Mr. Parrish did not recall many further  
details of their discussions, including whether Mr. C had been  
aware at the time he provided the money that Lal Singh and  
Dalbir Singh were fugitives.  
R. v. Malik and Bagri  
Page 393  
[890] Mr. Parrish was shown a telex he had drafted in  
September 1985 regarding a debriefing he had had with Mr. C on  
September 25. The telex noted that Mr. C had advised him that  
it had been Joginder Singh who had obtained the money to  
purchase the airline tickets for Lal Singh and Dalbir Singh.  
Mr. Parrish testified that he likely learned of Mr. C’s  
involvement in arranging the funds for the tickets at a later  
time.  
[891]  
Mr. Parrish agreed that it would have concerned him  
in terms of working with Mr. C as an informant had he been an  
accessory after the fact to a criminal offence. He did not  
recall Mr. C speaking about any involvement in weapons  
training.  
ii. Notes and Telexes; FBI Procedures  
[892]  
Mr. Parrish took notes during his debriefings with  
Mr. C which he reviewed with him for accuracy. Once back at  
the office, he prepared and distributed the appropriate  
communications based on his notes. The notes were then  
destroyed, leaving the resulting communications as the only  
repository of information Mr. C had provided.  
[893]  
As Mr. C was a confidential informant, Mr. Parrish  
testified with respect to the FBI’s procedures regarding the  
approval, supervision and on-going assessment of confidential  
R. v. Malik and Bagri  
Page 394  
informants. He further testified about record-keeping,  
explaining that an informant’s file was divided into  
administrative and investigative sections. The substance of  
the informant’s information would be contained in the  
investigative side of his file, while “house-keeping” matters  
would be included in the administrative side. Documents in  
the administrative side would identify the informant by name  
while those in the investigative side would identify him by  
informant number.  
iii. September 25, 1985 Debriefing  
[894]  
Mr. Parrish met with Mr. C on September 25, 1985.  
Mr. C informed him during this meeting that he had had a  
conversation with Mr. Bagri in which he (Mr. C) spoke of the  
New York Sikh community having received the blame for the Air  
India/Narita explosions and how this exposure had resulted in  
pressure from the FBI and immigration authorities. Mr. Bagri  
replied that he did not know why they were receiving this  
pressure since his group was responsible for both explosions.  
Mr. Parrish testified that he did not question Mr. C about  
whom else, if anyone, had been present at the meeting or when  
and where it had taken place. This was the first time Mr. C  
had provided him information about the Air India incident.  
R. v. Malik and Bagri  
Page 395  
[895] Mr. Parrish testified that he documented this  
information in a telex to FBI Headquarters. (While his  
internal telex is undated, a subsequent telex from the FBI to  
the Legal Attaché in Ottawa which disseminated it opens, “New  
York office … advised by teletype September 27, 1985, as  
follows…”.) On page six of the eight page telex, Mr. Parrish  
set out the information he received from Mr. C as follows:  
Source [Mr. C] provided the following information that  
has been obtained from several members of the Canadian  
right wing Sikh group, BK:  
These BK members have stated that the BK in  
Vancouver, Canada area is responsible for the Air  
India Flight 182 crash and the Tokyo baggage  
explosion. The Tokyo bomb was supposed to explode  
in the same fashion as the Air India crash (i.e.,  
just prior to landing). The BK members do not know  
who or why someone claimed credit for the NY DR/SSF  
for these incidents. Source advised that some  
Vancouver BK members are identified as Talwinder  
Singh, Chief of BC and a Canadian illegal  
[redaction]; Ajaib Singh aka Bagri, second in  
command of BK [redaction]; Gurmit Singh [redaction];  
and Surjan Singh [redaction].  
One other Canadian BK member is Tejinder Singh  
[redaction].  
[896]  
Mr. Parrish drafted the telex in the above form to  
protect the identity of his source.  
[897]  
He agreed in cross-examination that this telex  
accurately set out the substance of what Mr. C had told him  
with the exception of the imputation that Mr. C’s source was  
“several members” of the Babbar Khalsa as opposed to Mr. Bagri  
R. v. Malik and Bagri  
Page 396  
alone. He further agreed that the absence of any details  
regarding time, location and presence of others was because  
Mr. C had not provided such information at that time. These  
details only emerged four years later following the Lachine  
conference in July, 1989.  
[898]  
After further cross-examination, however,  
Mr. Parrish testified that Mr. C had, in fact, informed him  
during the September 25 debriefing that the meeting with Mr.  
Bagri had been in-person and that other Babbar Khalsa members  
had been present in the vicinity. Mr. Parrish had simply not  
inquired as to who they were or the specific location of the  
conversation. He knew it to have been in the general New  
York/New Jersey area since Mr. C, due to his immigration  
status, was unable to travel to Canada. He testified that he  
had simply left out these additional details when earlier  
questioned.  
[899]  
Mr. Parrish testified that he did not document the  
information Mr. C had provided in an unaltered form anywhere  
in his file. He also did not advise his partner, supervisor  
or FBI Headquarters, either orally or in writing, that his  
source claimed to have information that could identify a  
potential perpetrator of the Air India disaster. The only  
information they would have had was that set out in his  
R. v. Malik and Bagri  
Page 397  
September telex. Mr. Parrish agreed that the effect of his  
evidence was that no one within the FBI organization other  
than himself appreciated the significance of Mr. C’s  
information. When asked during cross-examination, “if you had  
been hit by a truck the next day on September 28th this  
information would have gone to the grave with you?”, he  
replied “yes”.  
[900]  
Mr. Parrish agreed that it would have been proper  
police work to investigate and assess the reliability of Mr.  
C’s information, such as by asking Mr. C for details about the  
circumstances of his interaction with Mr. Bagri or by  
endeavouring to corroborate his account. However, he had no  
recollection of having done so. When asked why he had not, he  
replied “It just did not occur to me at the time as you can  
see there was a lot I had covered with him and it just didn't  
occur”.  
[901]  
Mr. Parrish’s internal telex which formed the basis  
of the September 27 telex forwarded from FBI Headquarters to  
the Legal Attaché in Ottawa included Mr. C’s source number in  
its administrative section. It was put to Mr. Parrish that  
this would have permitted anyone within FBI circles wishing to  
discover Mr. C’s identity to easily do so by referencing his  
file, thus obviating the necessity of obscuring the  
R. v. Malik and Bagri  
Page 398  
information contained therein. He replied that as the author  
of the telex, he was responsible for drafting it in such a  
manner as to be disseminable externally since only the  
administrative portion of the telex would be edited.  
iv. Telexes Regarding Mr. C  
September 28, 1987  
[902]  
Mr. Parrish met with Mr. C following the latter’s  
attendance at the Stockton conference on September 19 and 20,  
1987. He drafted a telex documenting this meeting on  
September 28, 1987. Mr. C is referred to as “T-1” in the  
telex, which describes a conversation between Mr. C and Mr.  
Bagri as follows:  
T-1 was privy to a conversation wherein Ajaib Singh  
Bagri, BK, admitted his group’s responsibility for  
the Air India 182 crash. During this conversation,  
source learned that a split has occurred between the  
Canadian BK and four of its members in Hamilton,  
Canada. This split is because of a dispute or  
distrust between the four individuals and Bagri or  
Talwinder Singh Parmar. This split is based on the  
fact that for some reason these four individuals are  
not trusted because it is felt that they know and  
probably will give out critical information to  
authorities regarding the Air India 182 crash. These  
four Hamilton individuals are identified as follows:  
Tejinder Singh, Sadhu Singh, Amarjit Singh, and  
Daljit Singh. Amarjit and Daljit Singh are brothers.  
Source could not pursue this topic as the  
conversation was taking place in a public area with  
others present and would jeopardize source.  
R. v. Malik and Bagri  
January 25, 1988 Telex  
Page 399  
[903]  
Mr. Parrish drafted a telex dated January 25, 1988,  
based on information provided to him by Mr. C. The telex  
refers to two sources, “T-1” and “T-2”, which both refer to  
Mr. C. He drafted the telex in this fashion to disguise both  
Mr. C’s identity and the fact that the information was  
originating from one source. The portion dealing with Mr. C’s  
interactions with Mr. Bagri provides:  
T-2, who has provided reliable and accurate  
information in the past, met with Bagri on December  
26, 1987 for a short period in a private setting in  
an attempt to illicit any information possible from  
Bagri concerning the Air India 182 and Canadian  
Pacific flight bombings. The conversation took  
place in a secure area and [word illegible]  
inquired, as a pretext, if Bagri could provide any  
assistance on how to construct a bomb to use against  
the Indian Government. Bagri immediately told the  
source not to say anything because “the walls have  
ears”. Source explained that it was safe to speak  
but Bagri persisted and would not say anything on  
these topics explaining that in other incidents  
(presumably the two bombings mentioned above) that  
“only two of us know everything” about these  
incidents and if a third party should come to know  
any specifics of these two occurrences “we would go  
to jail”. T-1 advised that Bagri was probably  
referring Talwinder Singh Parmar as the second  
person who knew about these two incidents  
completely.  
For the information of the RCMP, T-2 is the same  
source that Bagri has admitted to twice in the past  
that they were responsible for these two bombings.  
The information that T-2 has provided is highly  
singular in nature and should be given all available  
security as this source is an extremely sensitive  
intelligent source of continuing value.  
R. v. Malik and Bagri  
Page 400  
[904]  
Mr. Parrish testified that he would have received  
the information from Mr. C only a few days prior to the date  
of the telex. The lag between the time Mr. C spoke with Mr.  
Bagri, December 26, 1987, and the date of the telex can be  
explained by the fact that Mr. Parrish normally took two or  
three weeks of holiday time around Christmas.  
April 13, 1989 Fax  
[905]  
Mr. Parrish authored a telex on April 13, 1989,  
based on information he received from Mr. C regarding a visit  
by Mr. Bagri to New York on April 8 and 9, 1989. The telex  
refers to Mr. C as “T-1”, and the relevant portion reads:  
During Ajaib Singh Bagri’s visit to New York during  
the weekend of April 8 and 9, 1989, T-1 who has  
provided accurate and reliable information in the  
past, had occasion to have a short private  
conversation with Bagri. During this conversation,  
T-1 brought up the topic of Inderjit Singh Reyat’s  
extradition proceedings back to Canada to stand  
trial in the Narita explosion that occurred the same  
day as captioned Air India crash. T-1 questioned  
Bagri as to whether he was worried that Reyat would  
be persuaded by authorities to provide information  
and/or testify against Bagri concerning his  
involvement in either or both bombings. Bagri  
reiterated to T-1 as he had told T-1 in the past  
that only he and one other individual knew  
everything concerning the bombing of Air India.  
Bagri went on to explain that Reyat does not know  
enough to involve him (Bagri) or the other  
individual in the Air India incident. Bagri never  
mentioned the name of the second individual and T-1  
did not pursue it since there was limited time.  
However, Bagri did state that Talwinder Singh Parmar  
R. v. Malik and Bagri  
Page 401  
did talk too much. T-1 could not say for sure  
whether Bagri was eliminating Parmar as the second  
individual with total knowledge as to this incident,  
or generally complaining that Parmar talks too much  
about what he would like to accomplish.  
July 7, 1989 Telex  
[906]  
The FBI sent Mr. C to attend a meeting at a Sikh  
temple in Lachine, Quebec on July 1, 1989. Mr. Parrish met  
with him upon his return from Canada, and drafted a telex on  
July 7, 1989 based on the information he related.  
[907]  
The pertinent portion reads:  
On Saturday July 1, 1989, [redaction] a source that  
has provided accurate and reliable information in  
the past, attended a meeting of Sikhs at the Lachine  
Gurdwara, 1090 Saint Joseph Street, Montreal,  
Canada. …  
The master of ceremonies was a Babbar Khalsa (BK)  
member Gurcharan Singh, [redaction]. As master of  
ceremonies Gurcharan Singh introduced all the  
speakers during the meeting. Gurcharan Singh  
recognized [redaction] as having met source in 1985,  
but source did not remember him. [redaction]  
recalled this meeting which was previously reported  
to Canadian authorities in a September 26, 1985  
communication captioned “Indian Terrorist Matters”.  
[redaction] had met with Ajaib Singh Bagri at Avtar  
Singh’s New Jersey gas station during the end of  
September, 1985. Also present at the gas station  
were four other BK members whom source did not know  
very well. Apparently Gurcharan Singh was one of  
these individuals and [redaction] identified one of  
the other individuals as Tejinder Singh Kaloe.  
[redaction] stated that during a private  
conversation with Bagri, Bagri stated that the BK in  
Vancouver, Canada area was responsible for the Air  
India Flight 182 crash and the Tokyo baggage  
explosion. Bagri went further to state that the  
Tokyo bomb was suppose [sic] to explode in the same  
R. v. Malik and Bagri  
Page 402  
fashion as the Air India crash (i.e.: just prior to  
landing). Bagri told [redaction] at that time, that  
the BK members do not know who or why someone  
claimed credit for the New York group for those  
incidents, but the BK did not make those claims. …  
[908]  
Mr. Parrish testified that this was the first time  
Mr. C had provided him with details of his conversation with  
Mr. Bagri first mentioned at the September, 1985 debriefing,  
in particular, that it had occurred at the end of September,  
1985 at Avtar Singh’s gas station in New Jersey. It was also  
the first time that he specifically learned that four other  
Babbar Khalsa members had been present, two of whom Mr. C had  
tentatively identified as Gurcharan Singh and Tejinder Singh.  
Mr. Parrish testified that he had considered it curious that  
Mr. C was providing him additional details four years later.  
Mr. C’s response when Mr. Parrish raised this with him was  
that he thought he had already told him this information. Mr.  
Parrish initially wondered whether Mr. C was telling him about  
a different meeting but, upon further discussion, determined  
that it was the same meeting raised at their September, 1985  
debriefing. He inserted the statement in the telex that “this  
meeting…was previously reported to Canadian authorities in a  
September 26, 1985 communication captioned Indian Terrorist  
Matters” so that Canadian authorities would not think there  
had been two separate meetings. However, he agreed that at  
the time of trial no telex or other FBI document had ever been  
R. v. Malik and Bagri  
Page 403  
produced with either this date or caption. He testified that  
he may have seen such a communication when he reviewed his  
file at the time he prepared this telex, though no such  
document has been produced to him since.  
[909]  
Mr. Parrish agreed that although he now had further  
details from Mr. C regarding the time, location and  
circumstances of his meeting with Mr. Bagri, he still did not  
engage in any follow-up to ascertain the reliability of this  
information.  
v.  
Post-MSG Convention Statement  
[910]  
Mr. Parrish testified that he did not ever recall  
Mr. C mentioning a meeting at his apartment in July 1984  
following the WSO convention at Madison Square Gardens at  
which he and Mr. Bagri had a private conversation about  
potential terrorist activity.  
vi. Memory-refreshing Exercise  
[911]  
Mr. C provided no additional information to the FBI  
regarding Mr. Bagri following Mr. Parrish’s departure from the  
New York office in October 1989. Mr. Parrish had no further  
contact with Mr. C until September 1999 when he was brought  
back to New York by the RCMP to assist in refreshing Mr. C’s  
memory. This exercise involved him “prompting” Mr. C to  
recall the information he had related to him in the past. For  
R. v. Malik and Bagri  
Page 404  
example, an RCMP continuation report regarding this meeting  
notes the following exchange:  
S.A. Parrish tried to prompt the source’s memory by  
stating that he asked the source [Mr. C] to call  
Bagri and that the source asked Bagri “How could you  
kill 100 of our people?” and that Bagri indicated  
that he didn’t care. The source did not appear to  
specifically recall this conversation but agreed  
that Bagri didn’t care.  
[912]  
Mr. Parrish agreed that this exchange was a fair  
summary of the way in which the memory-refreshing exercise had  
taken place, though he did not believe he had asked Mr. C to  
try to contact Mr. Bagri.  
[913]  
The continuation report also included this entry:  
S/Sgt. VAN DE WALLE stated that Crown would like to  
present the source’s evidence that he/she told the  
FBI in 1985 about his/her conversation with BAGRI  
and then produce PARRISH to corroborate this  
information with the FBI’s permission.  
[914]  
Although the report appeared to indicate that both  
Mr. C and Mr. Parrish were present when this statement was  
made, Mr. Parrish testified that he did not recall it. He  
also agreed with the defence suggestion that as a seasoned FBI  
officer, he would not normally prepare two witnesses together  
if he wanted one to corroborate the other.  
[915]  
Mr. Parrish was brought back to New York for a  
second memory-refreshing exercise with Mr. C on March 14,  
R. v. Malik and Bagri  
Page 405  
2000. The process followed a similar pattern to the first,  
except that Mr. Parrish now had access to his telexes. There  
was a “back and forth” between Mr. Parrish and Mr. C in which  
Mr. Parrish would state what he recalled based on the telexes  
and Mr. C would respond by stating what he recalled. This  
process was followed with respect to the September 27, 1985  
telex, the September 29, 1987 telex relating to the Stockton  
conference, the December 26, 1987 telex relating to the  
Richmond Hill Temple meeting, an April 8, 1989 telex relating  
to a visit by Mr. Bagri to New York, and the July 4, 1989  
telex regarding the Lachine Temple trip. Following this  
exercise, Mr. C provided a written statement in the absence of  
Mr. Parrish.  
g.  
[916]  
Evidence of Defence Witnesses  
The defence called four witnesses to challenge the  
evidence of Mr. C and Mr. Parrish. It also led evidence with  
respect to Mr. Bagri’s work records from the Heffley Division  
of Tolko Industries Ltd.  
i.  
The Evidence of Jack Cloonan  
[917]  
Jack Cloonan (“Mr. Cloonan”) is a retired FBI agent.  
His last 20 years with the organization were at its New York  
office where he was engaged in a variety of capacities with  
respect to terrorism and counter-terrorism matters. The New  
R. v. Malik and Bagri  
Page 406  
York office had two international terrorism squads in 1985,  
each with a different territorial focus. Mr. Parrish was on  
one squad, Mr. Cloonan on the other. Both squads were  
governed by the same policies, practices and standards. Mr.  
Cloonan was called to testify with respect to these,  
particularly as they related to the handling of confidential  
informants.  
[918]  
Mr. Cloonan testified that the development and  
maintenance of quality sources was the most important aspect  
of an agent’s duties, and that nothing at the FBI received  
more oversight and accountability. In 1985, there was  
complete transparency as between an agent and his supervisor  
with respect to the confidentiality of informants. It was the  
agent’s obligation to ensure that his supervisor knew both the  
source’s identity and any information of consequence received  
from that source since the supervisor bore a heavy  
responsibility with respect to the management, review and  
evaluation of informants.  
[919]  
Agents memorialized information provided by an  
informant for that agent’s own protection, the integrity of  
the organization and to safeguard statements that could become  
evidence. This principle applied with even greater force to  
information received from confidential informants.  
R. v. Malik and Bagri  
Page 407  
Mr. Cloonan testified that in the culture of the FBI, if  
information did not exist on paper, “it doesn’t exist”.  
[920]  
Mr. Cloonan was presented with the hypothetical of a  
confidential informant who provided a tip about a face-to-face  
meeting with a potential suspect in an international terrorism  
case who had made a statement implicating himself in that  
case, and asked about what records would be kept. Mr. Cloonan  
replied that the agent would take contemporaneous notes which  
would serve as a basis for a summary memorandum of that  
meeting and as the building block for other communications if  
it was decided that the information was so singular that it  
had to be disseminated. The internal memo would be  
scrutinized by the supervisor. In the case of significant  
information such as contained in the hypothetical, the  
supervisor would likely meet with the agent and ask additional  
questions. The supervisor would then assess whether the  
information warranted dissemination up the chain of command,  
again, highly likely given the hypothetical. In a case with  
international ramifications, the information would also likely  
be disseminated to third party agencies. Since it was FBI  
Headquarters that decided whether to disseminate the  
information and to put it into disseminable form, it was  
R. v. Malik and Bagri  
Page 408  
incumbent upon the agent and his supervisor to provide  
Headquarters with all pertinent information.  
[921]  
Mr. Cloonan testified that in the various reporting  
relationships that existed in 1985, the onus was on the agent  
to keep other parties informed, whether supervisor, alternate  
agent, FBI Headquarters or third party agencies. The onus was  
not on the receiving party to ask questions because as a  
practical matter they were not “mind readers”.  
[922]  
Mr. Cloonan testified that it is important for an  
agent to be in a position to verify the information provided  
by an informant. He was presented with the same hypothetical  
and asked to assume that the information provided was very  
general and lacking in detail. Mr. Cloonan testified that an  
agent would immediately, before leaving the informant’s  
presence, ask follow-up questions regarding the details of the  
statement, such as when and where it was made and who was  
present. The agent would then conduct additional  
investigation to corroborate the accuracy of those details.  
He might also have a second meeting with the informant to  
review the account and ask additional questions. If an agent  
reported this hypothetical tip without follow-up to a  
supervisor, the supervisor would ensure such steps were taken.  
R. v. Malik and Bagri  
Page 409  
[923] Mr. Cloonan testified that the Air India/Narita  
explosions were regarded at both FBI Headquarters and the New  
York office as a major terrorist event. Given the  
coordination of information from domestic offices and  
international legates that would have been necessary in a case  
of these dimensions, the normal reporting duties of an agent  
would have increased.  
[924]  
The defence put the following hypothetical to  
Mr. Cloonan:  
Assuming an informant provided a tip to a New York  
agent in relation to Air India implicating a suspect  
as a result of a face-to-face meeting, a statement  
made at a face-to-face meeting, is it conceivable in  
the culture and practice of the office that the  
agent would keep such a tip to himself and not tell  
anyone?  
He replied, “I cannot imagine a circumstance in which that  
would happen”.  
[925]  
Both Mr. Parrish’s internal FBI telex of September,  
1985 and the September 27, 1985 external telex from the FBI to  
the Legal Attaché in Ottawa were put to Mr. Cloonan. He  
testified that there was nothing in the telexes that would  
lead him to believe that the hypothetical regarding the Air  
India explosion, as set out above, had taken place. Firstly,  
the content made no reference to the circumstances of the  
hypothetical. Secondly, the form of the internal telex was  
R. v. Malik and Bagri  
Page 410  
also inconsistent. Mr. Cloonan testified that he would have  
put the information regarding Air India, located on page 6 of  
the 8 page telex, either at the front of the communication or  
have made it a separate communication in light of its  
significance. The administrative portion of the internal  
telex also did not set out the additional details omitted from  
the body of the telex that Headquarters would have needed to  
know to have an accurate understanding of the situation.  
[926]  
Mr. Cloonan was then asked to assume that the agent  
had kept the hypothetical tip to himself for 21 months before  
disclosing it, and to describe the appropriate procedure for  
handling the matter. He replied that the agent would explain  
the circumstances to his supervisor. The supervisor would  
likely ask and require the agent to set out in detail what  
information he had initially received and to explain why he  
had failed to bring the information forward. Because this  
would be a serious matter, it would go up through the chain of  
command to determine whether any investigation had been  
compromised or long-standing relationship with another law  
enforcement agency undermined. Mr. Cloonan stated, “I cannot  
think, based on my experience, of a more egregious breach of  
trust than what you’ve just described”.  
R. v. Malik and Bagri  
Page 411  
[927] Mr. Cloonan testified that the amount the FBI pays  
its informants for information corresponds with the value of  
that information. The hypothetical tip would be of  
“incredible value”, and a payment of $250.00 would be very  
low.  
[928]  
Mr. Cloonan was also examined and cross-examined  
about the dissemination of intelligence from the FBI to third  
party agencies.  
[929]  
In cross-examination, Mr. Cloonan agreed that it is  
the supervisor’s duty to ask for further details if the agent  
submits insufficient detail in his report. Similarly, if the  
supervisor asks no questions, the agent is entitled to assume  
his report was satisfactory. He stressed throughout his  
cross-examination, however, that agents have a responsibility  
to communicate information to their superiors, who, while able  
to ask questions of agents, are not mind readers.  
[930]  
In re-examination, passages from Mr. Parrish’s  
evidence wherein he admitted that there was no documentation  
in Mr. C’s file recording the unaltered information and that  
he had never conveyed it orally to his supervisor were put to  
Mr. Cloonan. He agreed that a supervisor could not ask  
questions or solicit more information about a face-to-face  
conversation when he had not been told about it.  
R. v. Malik and Bagri  
Page 412  
[931] During his cross-examination, the Crown frequently  
put documents to Mr. Cloonan and asked whether it was apparent  
from their face that certain things had or had not happened.  
For example, it was suggested to him that the absence of any  
changes between Mr. Parrish’s internal September, 1985 telex  
and the September 27, 1985 telex indicated that there had been  
no further requests for information of Mr. Parrish by his  
superiors. As he did with respect to most of the questions of  
this nature, Mr. Cloonan responded, in effect, that that was a  
possible inference but that he did not have sufficient  
information regarding what had transpired between Mr. Parrish  
and his supervisors to necessarily agree.  
[932]  
Mr. Cloonan was also cross-examined whether the  
value of the information in the September telexes was  
compromised because it ultimately came from one individual  
member of the Babbar Khalsa instead of several members as  
recorded. He responded that while it did not affect the basic  
intelligence, it would have been important to have made a  
determination as to its source. Knowing that the information  
came from a face-to-face meeting as opposed to “a compilation  
of opinions that perhaps the source arrived at from the virtue  
of reading newspapers” would be of significance.  
R. v. Malik and Bagri  
ii. The Evidence of Balbir Singh Grahala  
Balbir Singh Grahala (“Balbir Singh”) was born in  
the Punjab and moved to the United States in 1981. He  
initially settled in New York and later moved to Baltimore.  
Page 413  
[933]  
[934]  
In 1985, Balbir Singh resided in an apartment  
building on [ ] Avenue in Queens. He lived initially on the  
first floor with Gurmit Singh, Didar Singh (Jerry), and  
Paramjit Singh. He later moved to the fourth floor of the  
same building, and his roommates at that time were Jesse  
Parmar, Mr. C, Gurmit Singh, Paramjit Singh and Pushkar  
Sharma.  
[935]  
Balbir Singh testified that he obtained a false  
driver’s license in 1985 for identification purposes. He was  
in the United States illegally and did not have the necessary  
immigration papers so purchased the license from a customer at  
his workplace. Sometime after obtaining the license, Balbir  
Singh owned a Mercury Cougar that was registered to Didar  
Singh for the purposes of purchasing cheaper insurance.  
[936]  
Balbir Singh was questioned:  
Was there ever a time – and I’m thinking primarily  
about, say, the summer of 1985, but was there ever a  
time when, for instance, [Mr. C] came to you and  
said, I want to borrow your car; I’m going to visit  
a gas station in New Jersey, or Gurmit is going to  
R. v. Malik and Bagri  
Page 414  
drive me to a gas station in New Jersey? Anything  
like that ever happen?  
[937]  
[938]  
He replied, “No sir. Never”.  
Balbir Singh testified that on one occasion he went  
with Mr. C and others to a shooting range. Balbir Singh was  
the only individual with identification, which he produced at  
the range. He never subsequently went back.  
[939]  
Balbir Singh was not active in Sikh politics and was  
not affiliated with the Deshmesh Regiment or any other Sikh  
organizations. He was present for the FBI/INS raid on the  
apartment, as were Mr. C, Paramjit Singh, Jessie Parmar, and  
Pushkar Sharma. When asked how much longer he remained at the  
apartment following the raid, he replied “Not too long. Maybe  
couple of month. Not too long”.  
[940]  
Balbir Singh was involved in an argument with some  
of his roommates on his last evening at the apartment, which  
resulted in the police being summoned and suggesting that he  
leave the apartment. Balbir Singh, a friend, Paramjit Singh,  
Jessie Parmar and “other Gurmit” spent the evening at the  
apartment of Avtar Singh, a taxi driver. Balbir Singh never  
subsequently lived at the [ ] Avenue apartment nor has he  
spoken to Mr. C since that time. Paramjit Singh, Jessie  
Parmar and the “other guy named Gurmit” rented another  
R. v. Malik and Bagri  
Page 415  
apartment in Queens. Balbir Singh stayed with them off and on  
for a couple of months before moving to Baltimore at the end  
of 1985.  
[941]  
Balbir Singh heard about the Air India explosion  
through the media. He testified that Jessie Parmar appeared  
upset the following day and explained that he had had family  
on the Air India flight. Apart from this, he had little  
discussion with his roommates about the disaster. Balbir  
Singh testified that Mr. C never told the roommates that he  
had heard someone confess to being responsible for the Air  
India disaster.  
[942]  
Balbir Singh initially admitted during cross-  
examination that he had lied to immigration authorities when  
he indicated on an immigration application that he had arrived  
in the United States in 1985 instead of 1981. However, when  
he was cross-examined about this matter again one week later,  
he denied that he had lied to immigration authorities, even  
when his previous testimony to the contrary was put to him.  
He professed not to recall having been asked those questions  
and providing those answers, and maintained that he had not  
lied to the immigration authorities. He could not explain why  
he had told Crown that he had, suggesting that he had  
misunderstood.  
R. v. Malik and Bagri  
Page 416  
[943] On August 2, 2004, members of the FBI and two Crown  
counsel attended at his business to speak with him. He was  
questioned during his cross-examination whether he recalled  
being asked during that meeting whether Gurmit Singh drove and  
responding affirmatively. Balbir Singh testified that he did  
not recall being asked the question and giving that answer,  
and said that he did know if Gurmit Singh drove. He said that  
he left his spare vehicle keys at home but did not recall  
whether anyone asked to borrow his vehicle. He also testified  
that Gurmit Singh could have asked to borrow his vehicle or  
that he might have lent it to him but that he did not recall.  
[944]  
Balbir Singh agreed in cross-examination that in  
light of the number of roommates, there could have been more  
than one conversation taking place at any given time. If Mr.  
C had been speaking with Jessie Parmar, he himself might have  
been speaking with someone else at the time and not heard  
their conversation.  
iii. The Evidence of Gurmit Singh Kalotia  
[945]  
Gurmit Singh Kalotia (“Mr. Kalotia”) is from the  
Punjab. He came to the United States in 1982 and settled in  
New York. He first lived on the first floor of an apartment  
building on [ ] Avenue with Didar Singh, Paramjit Singh,  
R. v. Malik and Bagri  
Page 417  
Pushkar Kumar (Sharma), Atmar Singh and Balbir Singh. Mr. C  
never lived with him on the first floor.  
[946]  
In the spring of 1983, Mr. Kalotia moved to an  
apartment in the Bronx while the other occupants of the first  
floor [ ] Avenue apartment moved to an apartment on the fourth  
floor of the same building. Mr. C came to live with him in  
the Bronx but after approximately one month Mr. Kalotia  
introduced him to his friends in the [ ] Avenue apartment:  
Didar Singh, Balbir Singh, Atmar Singh, Paramjit Singh and  
Pushkar Sharma. Mr. C subsequently began to live there. Mr.  
Kalotia continued to reside in the Bronx but stayed at the [ ]  
Avenue apartment two or three times a week.  
[947]  
Mr. Kalotia testified in direct examination that  
sometime in 1984, Mr. C called him one evening and told him  
that he had been beaten by someone at the apartment. In  
cross-examination, he admitted that he was not certain about  
the year but that it had been prior to 1986. Mr. Kalotia went  
to the [ ] Avenue apartment and brought Mr. C back to his  
Bronx apartment where he stayed until 1986 when Mr. Kalotia’s  
family moved to the United States.  
[948]  
Mr. Kalotia was not present for the FBI/INS raid on  
the [ ] Avenue apartment, though he heard about it  
R. v. Malik and Bagri  
Page 418  
subsequently. He testified that Mr. C came to live with him  
in the Bronx after the raid.  
[949]  
Mr. Kalotia testified that he knew an individual  
named “Jessie” who lived on the fourth floor of the [ ] Avenue  
apartment but arrived later than the others. An individual  
named “Mita” also arrived later. He did not recall anyone  
else named Gurmit Singh living in either of the [ ] Avenue  
apartments.  
[950]  
Mr. Kalotia did not own a vehicle in 1985. Although  
he possessed a driver’s license at the time, he never drove.  
He testified that he never drove Mr. C to a gas station in New  
Jersey owned by an Avtar Singh, nor had Mr. C ever asked him  
to do so. He also testified that Balbir Singh owned a vehicle  
in 1985 but that he (Mr. Kalotia) never drove it.  
[951]  
Mr. Kalotia testified that he heard about the Air  
India disaster through the media. He did not discuss it with  
Mr. C beyond the fact that it had occurred and everyone was  
feeling sorry. At no time after the Air India incident did  
Mr. C ever tell him and the other [ ] Avenue roommates that he  
had heard someone confess to being responsible for the  
bombing. Mr. C never mentioned Mr. Bagri’s name and Mr.  
Kalotia has never met him.  
R. v. Malik and Bagri  
Page 419  
[952] Mr. Kalotia testified that he has had contact with  
Mr. C from time to time since 1988, most recently in mid-July  
2004. Mr. C was looking for Balbir Singh’s telephone number  
and contacted Mr. Kalotia to obtain the number of a friend who  
knew it. Mr. Kalotia told Mr. C that he did not have the  
telephone number. He admitted on cross-examination that he  
had provided Balbir Singh’s number to Mr. Cloonan, and that he  
had not given it to Mr. C since he was upset at Mr. C for  
mentioning his name in relation to this case.  
[953]  
The Crown referred Mr. Kalotia to Balbir Singh  
Grahala’s evidence about the roommates in the first floor [ ]  
Avenue apartment, which were Gurmit Singh, Didar Singh, and  
Paramjit Singh. Mr. Kalotia agreed that these were the  
residents of the first floor apartment. When asked if there  
was anybody else, he replied “there was Didar Singh, Balbir  
Singh and Atmar Singh, Pushkar Sharma and myself”.  
[954]  
In further cross-examination, the Crown referred  
Mr. Kalotia to the testimony of other witnesses regarding the  
occupants of the various apartments at the material time:  
• Balbir Singh had testified that the roommates in the  
fourth floor [ ] Avenue apartment were Jessie Parmar, Mr.  
C, Paramjit Singh, Pushkar Sharma and Gurmit Singh. Mr.  
Kalotia agreed, saying that Jessie and Mita had come  
later. Mr. Kalotia further agreed that the reference to  
Gurmit Singh must have been to a different Gurmit Singh  
R. v. Malik and Bagri  
Page 420  
since it was not him. He did not know Mita’s full name  
and agreed that it could have been Gurmit but stated that  
he (Mr. Kalotia) was the only person the others referred  
to as Gurmit.  
• Balbir Singh had testified about his last night at the [  
] Avenue building and how he had spent the night at Avtar  
Singh’s apartment with, among others, “the other Gurmit”.  
Mr. Kalotia confirmed that he was not that Gurmit.  
• Mr. C had testified that his roommates in the fourth  
floor [ ] Avenue apartment were Paramjit Singh, Balbir  
Singh, Gurmit Singh and Jessie Parmar. Mr. Kalotia  
agreed that he was not that Gurmit Singh.  
• Mr. C had testified that after he moved out of the [ ]  
Avenue apartment and to the Bronx, his roommates were  
“one other Gurmit Singh”, that person’s brother-in-law  
(Ashok) and a Daudhria Harjinder. Mr. Kalotia confirmed  
that Mr. C had lived with him and his brother-in-law  
(Gurmeet) in the Bronx. A Harinder Singh was there, as  
was someone they called Daudhria.  
• Mr. C had testified about a “Gurmee” who was a different  
Gurmit Singh from the one living with Mr. C in his  
previous apartment. Mr. Kalotia agreed that Mr. C was  
differentiating between him and the Gurmit with whom he  
had previously lived.  
Mr. Kalotia also testified to the following:  
• He had not been roommates with both Balbir Singh and Mr.  
C on the fourth floor of the [ ] Avenue apartment in  
1985;  
• He had not been present on the last day that Balbir Singh  
had spent in the [ ] Avenue apartment;  
• He had not rented an apartment with Balbir Singh, Jessie  
Parmar and Paramjit Singh in 1985;  
• He did not know Mita’s name but agreed that it could have  
been Gurmit. In re-examination, he testified that he had  
never heard anyone named Gurmit referred to as Mita; and  
R. v. Malik and Bagri  
Page 421  
• He does not know a taxi driver by the name of Avtar Singh  
and does not recall ever spending the night at an Avtar  
Singh’s residence in 1985.  
[955]  
Mr. Kalotia initially entered the United States  
illegally. In 1987 he took advantage of an agricultural  
worker amnesty program to obtain a green card although he had  
never actually worked on a farm. He obtained American  
citizenship approximately six or seven years ago.  
iv. The Evidence of Kamal Jit  
[956]  
Kamal Jit was born in the same village in the Punjab  
as both Mr. Bagri and Mr. C where he was familiar with both of  
their families. He came to the United States in 1985 and has  
resided there since, currently in New York.  
[957]  
Mr. Jit testified that he became re-acquainted with  
Mr. C in the early 1990s and that they met on numerous  
occasions during the ensuing years. He further testified that  
Mr. C made various statements relating to the present case  
during some of these meetings, including the following:  
• The FBI had alerted Mr. C approximately one week in  
advance of the fact that Mr. Bagri was going to be  
arrested;  
• Mr. C was going to be a witness against Mr. Bagri. He  
had tried to save Mr. Bagri but could not go back on his  
statements;  
R. v. Malik and Bagri  
Page 422  
• Mr. C had met with Mr. Bagri at Avtar Singh’s gas station  
and had mentioned that he was being asked about the Air  
India explosion because of his involvement with the  
Deshmesh Regiment. Mr. Bagri told him “just go and tell  
we did it”;  
• Mr. C knew that Mr. Bagri was innocent. He had made up  
the “we did it” statement and had attributed it to Mr.  
Bagri to deflect blame away from himself;  
• Mr. C wanted Mr. Jit to communicate with Mr. Bagri’s  
counsel to find out how he could testify to save Mr.  
Bagri; and  
• If Mr. Bagri’s family provided him money, Mr. C would run  
away to India.  
[958]  
Mr. Jit was a difficult witness who was unresponsive  
to Crown counsel’s questions in cross-examination and wholly  
inconsistent in his testimony, causing his cross-examination  
to extend six days. Language difficulties, whether legitimate  
or feigned, exacerbated the situation.  
[959]  
During cross-examination, Mr. Jit denied having met  
with Mr. Peck, counsel for Mr. Bagri, before coming to court  
on his first day of testimony. In his absence, Mr. Peck  
informed the Court that he had conducted a pre-trial interview  
with Mr. Jit the previous day. He had advised Mr. Jit not to  
discuss his evidence with anyone, and suggested that this  
might account for his apparent confusion. When Mr. Jit  
returned to the courtroom, Crown counsel had him recount his  
activities of the previous day. He did not mention his  
meeting with Mr. Peck and further, when specifically asked  
R. v. Malik and Bagri  
Page 423  
whether he had ever discussed the case with Mr. Bagri’s  
counsel, replied that he had not. Later in his cross-  
examination, Crown counsel informed Mr. Jit of what Mr. Peck  
had advised the Court in his absence. Mr. Jit replied, “I  
don’t know about that”.  
2.  
a.  
Ms. E and Related Witnesses  
Overview  
[960]  
Ms. E, a former friend of Mr. Bagri, provided  
statements to CSIS and the RCMP in the years following the Air  
India/Narita explosions that appear to implicate him in the  
offences alleged. Of primary importance is her account of a  
late night visit to her home by Mr. Bagri in June, 1985 during  
which he requested to borrow her vehicle (the “core  
conversation”). It is the Crown’s theory that this visit  
occurred on June 21, 1985, the eve of the Air India/Narita  
explosions, and that Mr. Bagri asked to borrow her vehicle to  
take baggage to the airport. He told her that only the  
baggage was going to make the trip; he was not. In contrast,  
Mr. Bagri submits that this visit must have taken place  
earlier on June 9, 1985, and that there was nothing sinister  
about Mr. Bagri’s request to borrow Ms. E’s vehicle that  
evening, something he had regularly done in the past.  
R. v. Malik and Bagri  
Page 424  
[961] During her direct examination, Ms. E claimed a lack  
of recall regarding, inter alia, the timing and content of  
this core conversation. The Crown sought to refresh her  
memory by referring her to her previous statements to CSIS and  
the RCMP but was largely unsuccessful. Two of Ms. E’s  
statements to CSIS agent William Laurie (“Mr. Laurie”) on  
September 10, 1987 and September 24, 1987 were admitted for  
their truth for having met a threshold level of reliability,  
the matter of their ultimate reliability to be determined at  
the end of the trial: R. v. Malik and Bagri, 2004 BCSC 299  
(the “admissibility ruling”). A third statement to Mr. Laurie  
on October 7, 1987 was subsequently admitted on the same  
basis. A videotaped statement to Cpl. Best of the RCMP on  
December 11, 1996 was adopted by Ms. E at trial and therefore  
admissible on that basis.  
b.  
The Evidence of Ms. E  
[962]  
Ms. E and Mr. Bagri are from the same village in the  
Punjab. Six years older than Ms. E, Mr. Bagri was a close  
friend of Ms. E’s older brother. Ms. E immigrated to Canada  
in 1974, settling in Vancouver.  
[963]  
Ms. E recalls first meeting Mr. Bagri in Canada at a  
family wedding in the early 1980s. Ms. E was then recently  
divorced with [ ] young children, and Mr. Bagri offered his  
R. v. Malik and Bagri  
Page 425  
family’s assistance. Ms. E also met Mrs. Bagri for the first  
time at this function. Although the Bagris lived in Kamloops  
and Ms. E in Vancouver, they maintained a social relationship  
and their families exchanged visits, staying at each other’s  
houses. Mr. Bagri also visited Ms. E alone on some of his  
trips to Vancouver, on occasion using her telephone and  
vehicle.  
[964]  
Ms. E was involved in a major construction project  
with respect to her home on [ ] Street in Vancouver in 1985.  
During the construction period from early May to mid-August,  
she lived in a basement suite on [ ] Avenue. Daljit Sandhu  
was the general contractor in charge of the project. Mr.  
Bagri to some extent oversaw Daljit Sandhu and was in regular  
contact with both Daljit Sandhu and Ms. E with respect to the  
construction.  
[965]  
Ms. E testified that Mr. Bagri came to her home one  
evening in June, 1985. She was already in bed but not yet  
asleep when she heard knocking at her door at approximately  
10:00 or 11:00 p.m. Hoping the person might go away, Ms. E  
waited a minute or so before opening her door. Mr. Bagri was  
there and asked to borrow her vehicle. She refused, however,  
because she needed it for work the following morning. She  
testified that she did not recall whether she asked Mr. Bagri  
R. v. Malik and Bagri  
Page 426  
why he wished to borrow it. Ms. E was questioned whether Mr.  
Bagri had said anything about airplanes or the airport. While  
initially denying that he had, she subsequently admitted that  
it was possible but that she did not recall. She also did not  
recall any discussion of luggage or baggage. Ms. E flatly  
denied that any thoughts had gone through her mind with  
respect to what Mr. Bagri might have been up to. She further  
denied that she had been afraid of him at that time.  
[966]  
Ms. E was very vague with respect to the timing of  
Mr. Bagri’s visit, testifying initially that it had been “a  
few days” before the Air India incident. When questioned  
later about the timing, she was no longer certain whether the  
visit had occurred before or after the Air India explosion.  
She was certain, however, that she had been living in the [ ]  
Avenue basement suite at time. In cross-examination, she  
consistently maintained that she believed the authorities knew  
the date of Mr. Bagri’s visit because of CSIS surveillance.  
[967]  
Ms. E agreed in cross-examination that there had  
only been one late night visit by Mr. Bagri in June, 1985 to  
borrow her vehicle. Her evidence was as follows:  
Q
A
… As you sit there today, you do remember a  
time in 1985 when Bagri came to your house late  
at night –  
Yes.  
R. v. Malik and Bagri  
Page 427  
Q
A
Q
-- and asked to borrow your car; right?  
Yes, that’s all I remember.  
I just want to go through what I believe you do  
remember about that. You remember that it was  
probably sometime around June of 1985?  
A
Q
Yes, sometime there.  
You remember that it was somewhat late at  
night?  
A
Q
Yes, I remember that.  
You remember that he knocked on the door for  
some time before you answered the door?  
A
Q
A
Q
Yes.  
You remember that he asked to borrow your car?  
Yes.  
And you remember that that combination of  
things, late at night, June, knocking on the  
door, asking to borrow your car, that only  
happened one time?  
A
Q
Yes.  
Oh yeah. And of course it was at your basement  
suite on –  
A
Q
A
Q
A
[ ].  
-- [ ]?  
Yes.  
You know that?  
Yes.  
R. v. Malik and Bagri  
[968] The following day upon re-examination by the Crown,  
however, she testified as follows:  
Page 428  
Q
Now, you also and we’ve been over this before  
indicated that Bagri had visited you a few days  
before the June 23rd bombing of Air India; is  
that right?  
A
Q
Yes.  
And that’s the visit, the one visit that you do  
remember in June; is that correct?  
A
Q
Yes.  
And there could be other visits in June but you  
don’t remember them?  
A
I don’t remember them. Could be, yes.  
[969]  
Ms. E testified that Mr. Bagri visited her again  
after the Air India/Narita explosions, though she could not  
specifically recall how many times, “twice or three times or  
once”. She recalled one visit later in 1985 at which time he  
brought her a powdered medication. She subsequently agreed in  
cross-examination that this was the only other time in 1985  
that he had come to her home late at night. At the time of  
this visit, Ms. E had left the [ ] Avenue basement suite and  
was living in her newly constructed residence on [ ] Street.  
Asked whether Mr. Bagri had said anything to her that she  
perceived to be a threat, she replied “absolutely not”. She  
also claimed no recollection of his saying anything about  
secrets.  
R. v. Malik and Bagri  
Page 429  
[970] Following the Air India/Narita explosions, Ms. E’s  
relationship with the Bagri family deteriorated. Ms. E’s  
second cousin and his two children had been victims of the Air  
India explosion. When Ms. E conveyed how upset she was at the  
loss, Mrs. Bagri expressed no sympathy and responded to the  
effect that they should not have used Air India buses or  
planes. Ms. E also testified with respect to various personal  
and financial conflicts with Mrs. Bagri which she says  
contributed to the deterioration of the relationship,  
resulting in there being no contact since approximately the  
end of 1985.  
[971]  
Ms. E agreed that following the two explosions, she  
had heard talk in the community about who might have been  
responsible for the disasters, including the Indian Government  
and the Babbar Khalsa, specifically Mr. Parmar and Mr. Bagri.  
She had also heard rumors about the possibility that  
Mr. Parmar and Mr. Bagri were responsible for taking the  
suitcases containing the bombs to the airport. Ms. E denied  
that this had had any effect on her relationship with the  
Bagri family but also agreed with the suggestion that she had  
felt bad that she had had an association or friendship with  
Mr. Bagri.  
R. v. Malik and Bagri  
Page 430  
[972] Ms. E testified that she was aware that Mr. Bagri  
was a member of the Babbar Khalsa but that she did not know  
the nature of that organization. She knew that Mr. Parmar was  
its leader, and that he and Mr. Bagri associated together.  
She also testified that Mr. Bagri had told her about meeting  
an individual named Mr. C in New York who was from their  
village in the Punjab. Ms. E said she recognized Mr. Malik’s  
name but did not specifically know who he was and had never  
met him. She was aware of Mr. Reyat through the media but had  
never met him either.  
c.  
[973]  
First Contact with the RCMP  
Ms. E’s first contact with the police following the  
Air India/Narita explosions occurred in late 1985. CSIS  
surveillance had earlier established that on June 9, 1985,  
Mr. Parmar and an unidentified East Indian male had been  
picked up at Vancouver Airport, and that the unidentified  
individual had been dropped off at Ms. E’s residence at  
approximately 11:00 that evening. On November 29, 1985, the  
RCMP questioned Ms. E about the identity of that individual.  
She informed them that it was Mr. Bagri.  
[974]  
The RCMP re-interviewed Ms. E on December 16 1985,  
at which time she told them that Mr. Bagri had visited her on  
a Wednesday evening two weeks earlier at approximately 9:00 or  
R. v. Malik and Bagri  
Page 431  
10:00 p.m. She had sent him away since it was late. He  
returned briefly the following morning and told her that he  
had just returned from England but did not discuss any of his  
activities with her.  
[975]  
An RCMP Continuation Report for this interview notes  
that the information Ms. E had provided was somewhat supported  
by surveillance conducted on Mr. Bagri upon his arrival at  
Vancouver Airport on December 4, 1985. He was lost to  
surveillance at approximately 10:00 p.m. in the area of [ ],  
which was only a few blocks from Ms. E’s residence.  
d.  
Contact with CSIS  
[976]  
Mr. Laurie is currently a Sergeant with the RCMP.  
He was employed by CSIS from 1984 to 1990, and in 1987 was a  
field officer with that organization’s counter-terrorism unit  
with a particular focus on the Khalistan movement and Sikh  
terrorism. He had come across Ms. E’s name on a list of  
individuals who had donated money to the Babbar Khalsa, and  
decided to interview her to see if she had any intelligence of  
value and to possibly recruit her as a source.  
i.  
September 10, 1987 Interview  
[977]  
Mr. Laurie testified that he went alone and without  
prior notice to Ms. E’s residence on September 10, 1987. He  
R. v. Malik and Bagri  
Page 432  
identified himself to Ms. E as an employee of the Solicitor  
General of Canada, and asked to speak with her about her  
knowledge of the Sikh community. Ms. E replied that she had  
already spoken with the police and that she had nothing to  
say. Mr. Laurie responded that he was not a police officer  
and explained the difference between CSIS and the police to  
Ms. E, the primary one being that he did not have the ability  
to command her attendance in court. He also told her that she  
could speak with him confidentially and that any information  
she shared would be forwarded to the government, not the  
police. Ms. E agreed to speak with Mr. Laurie, and they went  
to her living room.  
[978]  
Mr. Laurie began the interview by asking about the  
Sikh community and the discussions about the Air India  
incident going on within it. He spoke, too, of the need to  
provide answers for the victims’ families. He testified that  
this resulted in a large emotional response from Ms. E and  
that she began to relate details of a visit from Mr. Bagri.  
Mr. Laurie relied heavily on an operational report he had  
prepared following this interview to refresh his memory in  
recounting what Ms. E had told him.  
[979]  
Mr. Laurie testified that Ms. E told him that just  
prior to the Air India/Narita explosions, she believed it was  
R. v. Malik and Bagri  
Page 433  
the night before, Mr. Bagri had come to her home and requested  
to borrow her vehicle. When she refused, Mr. Bagri explained  
that he needed her car to take himself and two men to the  
airport. He said that he would return the car to her since  
they were not making a trip; it was only the baggage that was  
making the trip. Ms. E continued to refuse, saying that she  
needed her car. She was afraid of Mr. Bagri, sensing he was  
up to something violent.  
[980]  
Ms. E told Mr. Laurie that Mr. Bagri had visited her  
twice more after this occasion. On one occasion he wished to  
borrow her car again and she refused. On the second occasion  
he threatened her, telling her that they shared secrets and  
that she knew what he would do if she told anyone. Ms. E was  
certain that Mr. Bagri meant that he would kill her.  
[981]  
Ms. E told Mr. Laurie that she believed Mr. Bagri  
and Mr. Parmar were responsible for the Air India and Narita  
incidents. She also relayed an incident involving Mrs. Bagri  
wherein Ms. E had confronted Mrs. Bagri, saying that the  
community was blaming Mr. Parmar and Mr. Bagri for the  
explosions. Mrs. Bagri’s response was that the community had  
been warned not to fly Air India and that it was the victims’  
fault they had been killed. Ms. E said that she interpreted  
this statement as an admission of guilt on behalf of Mr. Bagri  
R. v. Malik and Bagri  
Page 434  
by Mrs. Bagri. She described her reaction as one of shock and  
dismay, and said that she decided to sever her previously  
friendly relationship with the Bagri family.  
[982]  
Ms. E also spoke to Mr. Laurie about her own  
background and relationship with the Bagris, including:  
• when Mr. Bagri visited her, he frequently used her  
telephone because he believed his own telephones were  
being monitored by the police;  
• her family was counseling her to stay away from Mr.  
Bagri because he was dangerous and involved in violent  
acts through the Babbar Khalsa; and  
• she once made alterations to western clothing for  
Mr. Parmar and Mr. Bagri, who were to be leaving the  
country, since Mrs. Bagri, who otherwise would have done  
the necessary alterations, had been injured in a motor  
vehicle accident.  
[983]  
Ms. E explained to Mr. Laurie that she had been  
contacted by the RCMP on a number of occasions but had told  
them she did not know anything. She was adamant that she  
would never cooperate with the police because she was afraid  
of Mr. Bagri and what he would do to her and her children.  
[984]  
Mr. Laurie testified that he was rather startled by  
the information Ms. E had provided, most of which was entirely  
new to him. He said that at some point during the interview  
he indicated that he knew of Mr. Bagri and Mr. Parmar and that  
they were both members of the Babbar Khalsa. Beyond this,  
R. v. Malik and Bagri  
Page 435  
however, he consciously avoided supplying Ms. E information  
since it would have been contrary to the intelligence  
gathering purpose of his visit to have done so. He also did  
not ask her leading questions. Mr. Laurie told Ms. E that the  
government needed the information she had shared and that he  
would be able to provide it to them without revealing her  
identity.  
[985]  
The interview lasted for approximately two hours.  
Mr. Laurie described Ms. E’s emotional state as varying  
significantly over its course. She was very nervous at the  
outset. She became emotionally distraught in the middle of  
the interview while discussing the impact of the tragedy on  
the families of the victims, at one point crying heavily on  
the floor. Mr. Laurie described Ms. E as being visibly  
relieved at the interview’s conclusion. She agreed to be  
interviewed again.  
ii. September 24, 1987 Interview  
[986]  
Mr. Laurie pre-arranged his next meeting with Ms. E  
on September 24, 1987. The interview was conducted in Ms. E’s  
living room, and again Mr. Laurie attended alone. The  
interview lasted approximately one hour.  
R. v. Malik and Bagri  
Page 436  
[987] Mr. Laurie testified that Ms. E was initially  
reluctant to talk about Mr. Bagri’s late night visit to borrow  
her car because of its emotional impact on her. However, she  
proceeded to recount his visit and to provide additional  
details regarding her relationship with him. Mr. Laurie again  
relied heavily on an operational report he prepared following  
the interview to refresh his memory.  
[988]  
Ms. E told Mr. Laurie that she was 100% certain that  
Mr. Bagri’s visit to borrow her vehicle had taken place the  
night before the explosions, sometime after 8:00 p.m. He  
arrived alone and requested to borrow her car. She asked  
where he was going, to which he replied, “the airport”. When  
she again asked where he was going, Mr. Bagri indicated that  
he was not going anywhere but that only the luggage was making  
the trip. He and two men would be coming back with the  
vehicle later. Although Mr. Laurie pressed her for details  
about these two men, she said she knew nothing about them  
other than she thought they may have been from Toronto. Ms. E  
said she was antagonistic towards Mr. Bagri at this point in  
time because she had come to learn that he was involved in  
violent acts.  
[989]  
Other information Ms. E provided Mr. Laurie during  
this interview included the following:  
R. v. Malik and Bagri  
Page 437  
• Mr. Bagri frequently traveled to Vancouver and often  
borrowed Ms. E’s car as if it were his own;  
• Mr. Bagri often tried to impress her with bragging  
statements and had once told her that his group, implying  
the Babbar Khalsa, could have anyone killed. He also  
told her that he had been sent by Mr. Parmar to the  
United States (she believed to New York but was not  
certain) to participate in a plot to assassinate Rajiv  
Gandhi. Ms. E had hemmed a pair of his pants for this  
trip;  
• Ms. E had overheard Mr. Bagri speak to someone with the  
last name Malik while using the telephone at her house.  
She recalled a conversation which had left her with the  
impression that Mr. Bagri had an arrangement with Mr.  
Malik to receive $50,000;  
• Ms. E had met both Mr. Reyat and Surjan Gill at Mr.  
Bagri’s home in Kamloops; and  
• Mr. Bagri visited Ms. E after returning from a trip to  
Pakistan on October 31, 1986. He had brought her some  
powdered medicine which she threw away since she and Mr.  
Bagri were not getting along at this point. (Although  
Mr. Laurie recorded the date of this visit as October 31,  
1986, he testified that he had some doubt about its  
accuracy and thought it likely that Ms. E had actually  
said 1985.)  
[990]  
As at the first interview, Ms. E again indicated  
that she would not cooperate with the police.  
[991]  
Mr. Laurie testified that Ms. E was nervous at the  
outset of the interview and became very emotional as it  
proceeded. However, she demonstrated no reluctance in  
responding to his questions and he did not need to prompt her  
as she recounted details, much the same as during the first  
interview.  
R. v. Malik and Bagri  
iii. October 7, 1987 Interview  
Mr. Laurie interviewed Ms. E at her residence a  
Page 438  
[992]  
third time on October 7, 1987. He refreshed his memory with  
his operational report when testifying.  
[993]  
Mr. Laurie had Ms. E again review Mr. Bagri’s visit  
to borrow her car. She had no difficulty relating what had  
occurred on that evening, and there were no material  
differences between her account on this occasion and those of  
his two previous interviews with her. However, she added this  
time that while she did not know how Mr. Bagri had arrived at  
her residence that evening, she believed that the RCMP had  
advised her that Mr. Parmar had dropped him off. She admitted  
to having been “quite rattled” when the RCMP visited her  
following the Air India crash and was therefore not entirely  
certain as to what they had said.  
[994]  
Mr. Laurie canvassed a variety of other topics with  
Ms. E and learned the following:  
• Mr. Bagri had told Ms. E about a trip to the United  
States in March 1985 during which he had met with a Mr. C  
who was from his hometown in India and was known to have  
killed his younger brother on the front porch of their  
home with a knife;  
• On two occasions Mr. Bagri had taken Ms. E to  
Mr. Parmar’s residence;  
R. v. Malik and Bagri  
Page 439  
• Mr. Bagri had never spoken to Ms. E about explosives,  
stereo equipment or tuners;  
• There were rumors in the Sikh community that Mr. Parmar  
was an agent of the Government of India. Ms. E herself  
believed this since his assets exceeded what he could be  
expected to have received from Babbar Khalsa members in  
the community. She received much of her information  
regarding Mr. Parmar from her family in Toronto;  
• Mr. Bagri had told her Sant Jarnail Singh Bhindranwale  
was alive and living secretly in Pakistan, even though he  
had been reported as having been killed. Mr. Bagri said  
that he had never been a supporter of Bhindranwale but  
that he had met him during one of his trips to Pakistan  
and could see that he was a good man; and  
• The relationship between Mr. Bagri, Mr. Parmar and Surjan  
Gill appeared strong, and she was not aware of any  
falling out between the three of them.  
[995]  
Ms. E was nervous at the outset of the interview.  
She became emotional during the recollection of details, prone  
to sobbing and requiring time to recover. She appeared  
comfortable by the interview’s conclusion. This third  
interview lasted approximately two hours, and by its end,  
Mr. Laurie felt he was in possession of all the information  
Ms. E was able to provide.  
[996]  
Mr. Laurie testified that at some point during his  
dealings with Ms. E, most likely around the time of the first  
interview, he had purchased a pair of drapes from her worth  
approximately $500-600 dollars. He denied that he had first  
approached Ms. E under the guise of wishing to purchase  
R. v. Malik and Bagri  
Page 440  
drapes, and was firm that he had purchased them in a purely  
personal capacity.  
[997]  
He further testified that he had come to learn that  
Ms. E had lost relatives in the Air India explosion. As his  
source-handler relationship with her developed, he  
occasionally used this information as an emotional trigger.  
e.  
[998]  
Mr. Laurie’s Reports  
Mr. Laurie did not take contemporaneous notes during  
his interviews of Ms. E since he sought to keep their  
exchanges as natural as possible. He testified that following  
the September 10 meeting, he drove around the corner and  
jotted down essential details to ensure as accurate an account  
as possible.  
[999]  
Mr. Laurie then returned to his office and prepared  
These reports included  
draft reports for CSIS headquarters.  
all details considered intelligence. He did not attempt to  
track Ms. E’s language in his reports since they were being  
prepared for intelligence, not evidentiary, purposes.  
Mr. Laurie testified that he completed his reports on the same  
afternoons that he interviewed Ms. E, and that he believed  
them to be accurate.  
R. v. Malik and Bagri  
Page 441  
[1000]  
Mr. Laurie testified that he taped two of his  
interviews with Ms. E and used them to assist in the  
preparation of his reports. He did not tape the first  
interview on September 10, and agreed that it was not possible  
to discern from his reports which of the other interviews had  
been taped. These audiotapes and the transcripts prepared  
therefrom were destroyed in circumstances held by the Court to  
constitute “unacceptable negligence” on the part of CSIS, and  
led to a declaration that Mr. Bagri’s right to disclosure  
under s. 7 of the Charter had been violated: R. v. Malik and  
Bagri, 2004 BCSC 554.  
f.  
Ms. E’s Evidence Regarding her Interviews with Mr.  
Laurie  
[1001]  
Ms. E was taken through her statements to Mr. Laurie  
on a number of occasions during her testimony. She exhibited  
a consistent pattern of confirming the insignificant details  
while professing a lack of recollection with respect to those  
portions incriminatory of Mr. Bagri, often testifying “I’m not  
saying that it’s not true but I don’t remember anything like  
that”, when they were put to her. She testified that she  
always spoke the truth when speaking with Mr. Laurie and that  
the events were fresh in her mind at the time of the  
interviews. She denied, however, having been emotional as  
recounted by Mr. Laurie.  
R. v. Malik and Bagri  
g. Ms. E’s Interview with Cpl. Best  
[1002] Ms. E was interviewed by Cpl. Best at RCMP  
Page 442  
headquarters in Vancouver on December 11, 1996. The interview  
was audiotaped and surreptitiously videotaped. Cpl. Best took  
Ms. E through a statement she had provided the RCMP in May  
1992 in which she had recounted, inter alia, the core  
conversation. While confirming the benign information the  
statement contained, she professed not to recall much of that  
which incriminated Mr. Bagri. Her primary response when  
portions of her statement were put to her was “I’m not saying  
what’s written is wrong but I don’t remember that”.  
C.  
Jagdish Johal  
[1003]  
CSIS surveillance evidence was the subject of  
extensive admissions of fact by the parties in these  
proceedings. The Crown seeks to rely on the fact that  
Mr. Bagri’s vehicle was observed in Vancouver on June 21, 1985  
as confirmatory evidence with respect to Ms. E’s statements to  
Mr. Laurie. Mr. Bagri relies on the following admission of  
fact as contradicting them:  
That on June 21, 1985 at 9:20 p.m., CSIS  
surveillance revealed that a yellow motor vehicle  
with B.C. License EAC 006, registered to Ajaib Singh  
Bagri, arrived at the Parmar residence at 1302  
Howard Street, Burnaby, B.C. An unknown East Indian  
male, who was not Mr. Bagri and has not been  
subsequently identified, dressed in a dusty blue  
R. v. Malik and Bagri  
Page 443  
tunic and blue turban, exited the vehicle and spoke  
to Mr. Parmar, who was watering the lawn. A female  
and a young child, not a baby, remained in the  
vehicle. The unknown male then parked the vehicle  
in the driveway and Mr. Parmar, the unknown male,  
the unknown female and the young child, entered Mr.  
Parmar’s residence. Moments later the unknown  
female returned to the car and retrieved a bandelero  
which she put on before re-entering the house.  
[1004]  
It is the evidence of Jagdish Kaur Johal (“Ms.  
Johal”), who was called by the defence, that she was the  
unknown female referred to in the admission and that her older  
brother, Mr. Narwal, was the unknown East Indian male.  
[1005]  
In 1985, Ms. Johal resided in Kamloops at the home  
of her brother, Mr. Narwal, a member of the Babbar Khalsa.  
The Narwal and Bagri families were close and visited  
regularly. The Bagris had one car in 1985, yellow in colour.  
She testified on direct that her family had two vehicles at  
the time.  
[1006]  
Ms. Johal testified that she came to Vancouver with  
Mr. Narwal and his six or seven year old daughter, Dalwinder,  
on the weekend of the Air India/Narita explosions. The  
purpose of the trip had been to shop for a wedding dress for  
her upcoming wedding in October and to visit her parents who  
were in the Lower Mainland berry picking that summer. They  
left Kamloops at approximately 4:00 p.m. upon Mr. Narwal’s  
return from work, and the trip to the Lower Mainland took  
R. v. Malik and Bagri  
Page 444  
approximately five hours. They made the trip in the Bagri  
family’s yellow car. It was not uncommon for the two families  
to borrow each other’s vehicles but Ms. Johal did not know why  
her brother had borrowed Mr. Bagri’s vehicle on that  
particular occasion.  
[1007]  
Upon arrival in the Lower Mainland, they first  
stopped at Mr. Parmar’s residence in Burnaby where they all  
went inside. Ms. Johal testified that in 1985 her brother was  
a baptized Sikh. He wore a turban and traditional Sikh dress,  
generally in whites or blues. After the Parmar residence,  
they went to the residence of Sohan Singh where their parents  
were staying and spent the night. Ms. Johal testified that  
she went shopping the following day with her mother,  
Mr. Narwal and Dalwinder. She did not see Mr. Bagri that  
weekend. Ms. Johal, Mr. Narwal and Dalwinder returned to  
Kamloops on Sunday, June 23, arriving late in the afternoon.  
Ms. Johal was shocked to learn from Mrs. Narwal about the Air  
India/Narita explosions. This was the first she had heard  
about the incidents.  
[1008]  
Ms. Johal was cross-examined regarding the number of  
additional vehicles that would have been available to her  
family that June 21 weekend. She recalled a motorcycle and a  
white pick-up truck. The Crown’s cross-examination was based  
R. v. Malik and Bagri  
Page 445  
on I.C.B.C. documents that had not been disclosed to the  
defence in a timely manner and led to a declaration that  
Mr. Bagri’s s. 7 rights under the Charter had been violated.  
Admissions of fact that were subsequently filed indicate that  
at least one car, one truck and one motorcycle were insured  
and available for use by the members of the Narwal household  
at the relevant time.  
XI. SUBMISSIONS OF THE PARTIES REGARDING MR. BAGRI  
A.  
Motive  
1. Position of the Crown  
[1009]  
The Crown characterizes Mr. Bagri’s MSG Speech as  
his political manifesto and submits that it offers cogent  
evidence of his motive to participate in the alleged offences.  
It draws a number of powerful themes from his words, in  
particular the following, set out with representative excerpts  
from his speech:  
1.Outrage at the Indian Army’s assault on the Golden  
Temple:  
That Golden Temple, that sacred water of the holy  
pool from which a Sikh used to take five handfuls of  
water to drink it and sprinkle it on himself to  
purify his life and his body. What these dogs have  
done to the sacred water, I don’t even have the  
words to describe.  
2.Bagri’s feelings toward Hindus and the Government of  
India for their mistreatment of Sikhs:  
R. v. Malik and Bagri  
Page 446  
They say Hindus are our brothers. Oh, I say  
denounce such Sikhism that calls Hindus our  
brothers.  
If any speaker from this stage ever mentions Hindus  
as our brothers he will be denounced as a traitor of  
the Sikh nation.  
And,  
Now there’s no need to get the nation killed. More  
than 50,000 young men have been killed in the  
Punjab… I tell you one thing: they, the Hindu dogs,  
have already delighted their hearts.  
Now it is our turn.  
Also,  
Now we do not want any more of us to be destroyed.  
We have gone through enough…more than 50,000 young  
men have been killed.  
They say Hindus are our brothers, many have said  
that, but I give you my most solemn assurance until  
we kill 50,000 Hindus, we will not rest!  
3.The need for Sikhs to raise both money and an army to  
wage a war of independence:  
At this time, I appeal to you that you should enrol  
one young person from each family from the entire  
Sikh world, into the army of the Babbar Khalsa  
Organization.  
This is the army of the Almighty and it is ready.  
Get each and every young man enrolled in it. The  
new member should bow his head and take an oath in  
the presence of the True Lord Guru Go … the Holy  
Book, Guru Granth Sahib. “Whoever shot bullets at  
the body of our Holy Book, whoever stripped our  
sisters naked, they will be brought to justice by  
these Babbars”.  
R. v. Malik and Bagri  
Page 447  
4.The necessity of killing traitors to succeed in the Sikh  
struggle:  
Now I make a request: if anybody tries to betray us  
now, if anybody tries to get our nation annihilated,  
all of his family and children will be crushed in  
crushers and reduced to pulp.  
And,  
According to our report, the government of India has  
hired some men, who have already been paid and given  
orders to kill General Jaswant Singh Bhullar, and to  
kill the living-martyr Talwinder Singh, that is to  
shoot them. I am telling you, this is my challenge,  
if we find out that someone is trying to kill our  
leaders, before any such evil act takes place, his  
head shall be cut off and hung on the tip of the  
sword.  
If someone succeeds to do this evil act anyhow, if  
that is the will of God, then what would be the  
consequences? The world will witness it.  
[1010]  
While the Crown acknowledges that Mr. Bagri did not  
make any overt references to the bombing of Air India planes,  
it submits that his speech nevertheless constitutes a  
declaration of war against India and a call for vengeance  
against that country and its Hindu majority. The conspiracy  
to place bombs aboard two Air India aircraft was a  
manifestation of these stated objectives.  
[1011]  
There can be no question that all Sikhs, moderate  
and fundamentalist, were deeply affected and outraged by the  
attack on the Golden Temple. However, the Crown submits, it  
is wrong to characterize Mr. Bagri’s intense hatred for Hindus  
R. v. Malik and Bagri  
Page 448  
and desire to exact revenge as articulated in the MSG Speech  
as sentiments that were universally shared. It points, for  
example, to Amarjit Singh Ahluwalia, the organizer of the WSO  
conference, who testified that resolutions were passed at the  
conference but that none included the killing of Hindus or the  
hijacking of aircraft. He also described Mr. Bagri and the  
Babbar Khalsa as having a different philosophy than himself  
and most attendees at the conference.  
[1012]  
Mr. Bagri, says the Crown, was no ordinary Sikh. He  
was a high ranking member of the Babbar Khalsa, a terrorist  
organization with particular aims and goals. He was  
considered the “right hand man” to its leader, Mr. Parmar, and  
had delivered the speech on his behalf as he had been barred  
from entering the United States. To simply explain away the  
speech as hyperbole and representative of Sikh outrage to  
Operation Bluestar is to ignore these important factors.  
[1013]  
The Crown also submits that a consideration of the  
speech in the broader context of Mr. Bagri’s conduct and  
statements in the period that followed belies any suggestion  
that he simply got “carried away” at MSG. It points to  
Mr. Bagri’s alleged statement to Mr. C later that same day,  
“tell to your guys, don’t go to jail for a small thing; we  
have stuff that can blow like a – like a block”, as indicating  
R. v. Malik and Bagri  
Page 449  
a willingness to use explosives to engage in terrorist  
activities. His comment to Cpl. Bells about wanting a Sikh  
interpreter because he hated Hindus and they hated him  
demonstrates that his intense anger towards Hindus had yet to  
wane in early 1985. Similarly, his comments to Detective  
Sergeant Weston at Heathrow Airport about his membership in  
the Babbar Khalsa, which he agreed was viewed by some as a  
terrorist organization, strongly indicate that he continued to  
be supportive of terrorist activities ever after the Air  
India/Narita explosions.  
[1014]  
The Crown submits that Mr. Bagri’s vitriol and  
anger, so apparent in the MSG Speech, had not subsided by the  
time of his Panthak Conference Speech in September of the same  
year. He was no less motivated to achieve his political goals  
and his views on the means by which to achieve them remained  
unchanged. He specifically identified Air India, accusing the  
Government of India of using Air India proceeds to purchase  
weapons that were used against the Sikhs and calling for a  
boycott of the airline:  
It is commonly said that we should totally boycott  
the Hindus, totally. If the Hindus are not boycotted  
even now; if someone travels on Air India even today,  
is malevolent to the Sikh Path, is malevolent to the  
Guru!  
And,  
R. v. Malik and Bagri  
Page 450  
Totally boycott. Anyone who calls himself a Sikh,  
whether he is having hair or he is clean shaven, must  
recognize his duty! On one hand, with the foreign  
currency earned from Air India travel business, they  
bought very modern weapons and violated the honour of  
our sisters, and martyred our brothers. There is no  
need to travel by it. There is no need to buy from  
Hindu shops.  
[1015]  
Although there is a gap of undetermined duration in  
the recording of the MSG Speech, the Crown submits that there  
is nothing in the evidence of either expert to suggest that it  
occurred at a critical juncture. Viewed in its entirety, the  
speech provides sufficient context to permit the Court to  
fully appreciate its nature and meaning, notwithstanding the  
gap.  
2.  
[1016]  
Position of Mr. Bagri  
Mr. Bagri stresses the importance of context in  
considering the MSG Speech as evidence of motive. In this  
regard, he submits that it is significant that the WSO  
convention was held one month after the Indian Government’s  
attack on the Golden Temple at a time when anti-Hindu  
sentiment amongst the global Sikh community was acute. Much  
evidence was led at trial regarding these sentiments,  
including that of Mr. Ahluwalia who testified about attending  
rallies and demonstrations at which there were calls for  
boycotts of Indian state organizations and for other  
activities to destabilize that country since the Sikh  
R. v. Malik and Bagri  
Page 451  
community wanted to be “no part of India”. Amarjit Singh  
Buttar described the Indian Government’s raid on the Golden  
Temple as having been the most traumatic event of his life  
until that time. He also described rallies and demonstrations  
that had been held prior to the WSO conference at which the  
national flag of India had been desecrated and Indira Gandhi  
had been burned in effigy. He himself had made inflammatory  
comments condoning violence to the media in the immediate  
aftermath of the attack which he testified had reflected his  
state of mind at the time. Mr. Buttar had attended the WSO  
convention and described its tenor and the mood of the people  
gathered there as “very angry, very mad, very disappointed and  
frustrated”. Daljit Singh Sandhu and Dr. Gurmit Singh Aulakh  
also testified to similar effect.  
[1017]  
Mr. Bagri submits that his speech was intended to  
rally this deeply emotional and politically charged  
convention. As Mr. Kotli testified, its melodramatic flair  
and inflammatory language are common features of Sikh  
religious and political speeches, and would most certainly  
have been expected by the audience given its mood in light of  
the attack on the Golden Temple. That audience, Mr. Bagri  
submits, would have appreciated that the exaggerated and  
inflammatory passages upon which the Crown seeks to rely were  
R. v. Malik and Bagri  
Page 452  
not to be taken literally and would also have understood the  
historical and religious references from which they derived.  
For example, not only is it absurd to suggest that his  
statement “We will not take rest until we kill 50,000 Hindus”  
be taken at face value, but the number 50,000 is of tremendous  
historical significance to Sikhs as the number of their own  
allegedly killed in the Punjab by the Indian Army.  
[1018]  
Mr. Bagri characterizes his speech as a call to arms  
for a Sikh war of independence against the Government of India  
within that state’s territorial borders. He points to  
passages such as the following:  
It is said, Hindus are our brothers. We are to take  
Hindus with us. Yes there must be our handshake with the  
Hindus, we shall shake hand. Where? In the battlefield.  
Also,  
If one wants to die, then does one die by fasting? Where  
is this written? From where have we learnt this Gandhian  
strategy. We are not to die like this.  
We are to die in the battlefield, fighting, by  
sacrificing ourselves. To die such a death, which is the  
mission of the Khalsa, which is our religion.  
And,  
Give us tanks, give us cannons, give us aircraft by  
dividing equally; he should come to the battlefield; then  
see who takes to heels there.  
R. v. Malik and Bagri  
[1019] This theme of meeting the Hindu army in the  
Page 453  
battlefield is consistent with other speeches given at the WSO  
Conference, most obviously with that of General Bhullar who  
spoke before him. General Bhullar was a retired Indian Army  
general who had spoken of forming an army and waging a war in  
India.  
[1020]  
Mr. Bagri points to passages in his speech not  
referred to by the Crown in which he spoke of the importance  
of protecting the integrity and honour of women, an important  
aspect of Sikh tradition. He spoke, too, of the need to  
exercise caution and to avoid proceeding impetuously.  
[1021]  
Given the significance of context to an accurate  
understanding of the speech as a whole, Mr. Bagri submits that  
the gap of unknown duration in its recording prevents the  
Court from considering whether any existing passages were  
qualified or put into further context in the lost portion of  
the speech. This necessarily affects the weight to which it  
is entitled.  
[1022]  
That weight is further diminished by the weakness of  
the nexus between his words and the offences alleged, having  
regard to the uniqueness of the sentiments or intentions  
expressed, the specificity of the remarks and the temporal  
proximity between the remarks and the offences. As noted, the  
R. v. Malik and Bagri  
Page 454  
sentiments expressed in the speech were by no means unique to  
Mr. Bagri and were widely held in the global Sikh community.  
The speech primarily advocated the raising of an army to  
engage the Government of India in a civil war on the Indian  
subcontinent; it did not promote terrorism against innocent  
civilians. Finally, almost a full year elapsed between the  
speech and the offences alleged.  
[1023]  
While the Panthak Conference Speech was delivered in  
the same emotional oratory style as the MSG Speech, it was  
more subdued in content given the passage of time since the  
attack on the Golden Temple. Mr. Bagri characterizes the  
speech as nothing more than a call for unity amongst Sikhs,  
direction from Sikh leaders, and a boycott of businesses whose  
profit could benefit the Indian Government.  
[1024]  
As for his other statements, Mr. Bagri submits that  
his comments to Wilf Bells are simply of no probative value at  
all. His statements to Detective Sergeant Weston, far from  
assisting the Crown, are consistent with the defence theory of  
Mr. Bagri’s true beliefs and state of mind. His indication to  
Chief Superintendent Weston that he was prepared to fight for  
Khalistan but only within India’s territorial boundaries, for  
example, was entirely consistent with what he had advocated at  
the WSO Conference in New York.  
R. v. Malik and Bagri  
B. Mr. C and Related Witnesses  
Page 455  
1.  
a.  
Position of the Crown  
Mr. C  
[1025]  
The Crown submits that despite Mr. Bagri’s litany of  
attacks on Mr. C’s credibility, the evidence demonstrates that  
he is a truthful and well-motivated witness whose testimony  
forms a solid basis upon which to convict Mr. Bagri.  
i.  
Relationship with the FBI  
[1026]  
Mr. C had informed the FBI of Mr. Bagri’s statements  
regarding his involvement in the Air India/Narita explosions  
in the mid to late 1980s, long before he had any intention of  
becoming a witness. Despite repeated challenges by the  
defence, Mr. C was firm that he had been motivated to contact  
the FBI out of a belief that militant Sikhs were jeopardizing  
the movement for an independent Khalistan and were putting  
innocent Sikhs at risk of arrest and deportation. His  
evidence about his motivations was corroborated by that of Mr.  
Parrish.  
[1027]  
It is significant, submits the Crown, that Mr. C  
first contacted the FBI anonymously, as this negatives any  
suggestion that he became an informant to deflect away  
suspicion for complicity in the New Orleans conspiracy. Had  
that truly been his concern, he would have approached the FBI  
R. v. Malik and Bagri  
Page 456  
openly and exchanged his information for immunity or  
protection. Instead, it was the FBI who undertook to discover  
his identity and alter his status from an anonymous informer  
to an identified source. By that time, Mr. C had already been  
providing the FBI with information for months, without  
compensation or benefits, and he simply continued to supply  
information for the same reasons as he had at the outset.  
[1028]  
It is also evident that Mr. C did not become an  
informant to avoid suspicion or blame for the Air India/Narita  
explosions since he first contacted the FBI in May 1985, prior  
to those events.  
[1029]  
While Mr. C received benefits from the FBI, the  
Crown submits that those benefits were incidental rather than  
motivational. In terms of monetary benefit, he received less  
than $4,000 over the four years from 1985 to 1989, a nominal  
amount. The FBI also interceded with the INS on Mr. C’s  
behalf on a number of occasions during the same time period.  
The Crown submits that it is likely that Mr. C would have been  
equally successful even without FBI assistance. More  
importantly, Mr. C never made the passing of information  
conditional upon the receipt of this assistance and testified  
that he was never aware of what steps the FBI had taken to  
assist him.  
R. v. Malik and Bagri  
Page 457  
[1030] The Crown submits that the timing of the immigration  
assistance is relevant. For example, the FBI first intervened  
on Mr. C’s behalf in November 1985 after his first application  
for political asylum had been denied. Mr. C, however, had  
provided Mr. Parrish with the most critical of his  
information, namely, Mr. Bagri’s inculpatory statements at  
Avtar Singh’s gas station, in September prior to the receipt  
of any immigration assistance. The FBI also assisted Mr. C  
with his second, and ultimately successful, political asylum  
application, submitted in 1993. Mr. C had not supplied the  
FBI with information regarding Air India after 1989 so any  
assistance rendered after this time could not have been in  
exchange for information on Air India. As Mr. Parrish  
testified, the FBI’s purpose in interceding with the  
immigration authorities on Mr. C’s behalf had been to keep him  
in the United States as he was a valuable source.  
ii. Mr. C’s Character  
[1031]  
The Crown submits that Mr. C’s criminal history  
should have no impact upon his credibility. He was acquitted  
in India of both offences with which he was charged. It was  
determined that he had acted in self-defence in relation to  
the murder of his brother, the circumstances surrounding which  
Mr. C was candid and forthright when testifying. The Crown  
R. v. Malik and Bagri  
Page 458  
submits that the second charge was entirely inconsequential  
since Mr. C was acquitted with respect to it. Although he  
left India before the issue was resolved, he did so to improve  
his circumstances, not to escape arrest. In any event, he  
ultimately returned to India to deal with authorities and  
resolve the charge. Mr. C’s criminal history in the United  
States, comprising two traffic infractions and an assault  
conviction arising from a confrontation over a microphone at a  
Sikh temple, is so minor as to be irrelevant in assessing  
credibility.  
[1032]  
With respect to the New Orleans incident, Mr. C  
testified that he had not been aware of the assassination plan  
before it had been attempted. He was frank in giving evidence  
about his actions with respect to Lal Singh and Dalbir Singh,  
and denied having been aware that his involvement in their  
escape from New Orleans amounted to a criminal offence.  
Although Mr. Bagri labels Mr. C an accessory after the fact  
for assisting them to flee justice, he was never charged, let  
alone convicted, of such an offence, and should not be put on  
trial for his involvement in that case during his testimony in  
this one.  
R. v. Malik and Bagri  
iii. Out-of-Court Lies  
Page 459  
[1033]  
The Crown submits that Mr. C’s admissions of having  
lied to secure immigration status in the United States do not  
lead inexorably to the conclusion that he would unjustly  
accuse Mr. Bagri of the Air India/Narita explosions as the  
defence suggests. Such an assertion is contrary to logic and  
ignores the reality of human conduct. Mr. C is certainly not  
alone in having been less than forthright in establishing  
himself in the United States, and, as he testified, he lied to  
improve his circumstances and those of his family, not to harm  
anyone:  
Q
All right. Now, again, Mr. [C], it’s – maybe  
I’m wrong here, but you are going to be – it’s  
going to be suggested to you that you’re just a  
liar and you lie all the time, because you’ve  
lied about your passport and you lied about  
your immigration situation and you lied when  
you tried to make arrangements to get into the  
country and so on, so you must be lying about  
what you heard from Mr. Bagri. These lies that  
you’ve told us about with respect to your  
immigration and so on, in your view, did those  
sorts of lies cause any harm to anybody?  
A
A
No, I don’t think so. That if I lied for – to  
enter into the United States, if I lied for the  
immigration papers, if I submit false papers  
for the special agricultural worker, if I lied  
to the consulate for my passport, this – my  
thinking is, if I lied, I lied to develop  
myself, to save my life, to develop my whole  
family. But I did not lie to harm anybody.  
All right. Would you falsely accuse Mr. Bagri  
in exchange for money?  
R. v. Malik and Bagri  
Page 460  
A
No, not at all.  
iv. Refreshing Mr. C’s Memory  
The Crown submits that there is nothing inherently  
[1034]  
improper in attempting to refresh a witness’s memory,  
notwithstanding Mr. Bagri’s harsh condemnation of the memory  
refreshing exercises. The process undertaken here was  
completely transparent since accurate, contemporaneous notes  
were kept and produced. It is clear from these notes that Mr.  
C was never “fed” information nor was he ever told what he was  
expected to say. For example, Insp. Nash’s notes for March  
14, 2000 record Mr. Parrish as referring to his January 1988  
“walls have ears” telex and telling Mr. C:  
- source had private conversation with BAGRI &  
tried to get info. about the 2 bombings  
- source asked if BAGRI could give assistance  
about building a bomb  
According to Insp. Nash’s notes, Mr. C then replied:  
- source stated that BAGRI replied that he  
didn’t want to say anything because the walls  
have ears – this is a common phrase in his  
language.  
- also recalled that BAGRI stated that “only 2  
of us knows” – he understood that this meant  
BAGRI & PARMAR  
- PARRISH asked if he recalled what would  
happen if somebody else learned about this &  
source recalled that BAGRI said that if  
somebody else learned then “we could go to  
gaol”.  
R. v. Malik and Bagri  
Page 461  
[1035]  
The Crown submits that this was clearly a proper  
exercise in refreshing memory. Moreover, Mr. Parrish was the  
appropriate person to engage Mr. C since only he had any  
record of what Mr. C had earlier said. Insp. Nash’s notes  
indicate that Mr. C did not adopt or testify to matters he  
could not recall during this exercise.  
[1036]  
By the time of the March, 2000 memory refreshing  
exercise, Mr. C had been told that he would be paid but the  
specific amount had yet to be determined, in part because the  
RCMP first wished to ascertain the extent of his information.  
The Crown submits that while a benefit must be bestowed on a  
witness before his actual testimony so that it will not be  
conditional upon satisfactory performance in court, it is  
illogical to suggest that the quantum of that benefit should  
be determined without first knowing the value of the proposed  
evidence.  
v.  
Benefits for Testimony  
[1037]  
The Crown submits that although Mr. C received a  
monetary benefit of $300,000 USD for his testimony in these  
proceedings, this benefit was justified in the circumstances  
and should not be a factor detracting from his credibility.  
R. v. Malik and Bagri  
Page 462  
[1038] Mr. C’s evidence regarding Mr. Bagri’s various  
inculpatory statements had been provided to the FBI many years  
before the benefit was bestowed. His integrity had been  
vouched for by several members of the FBI who had had  
extensive dealings with him, including Mr. Parrish. The Crown  
submits that given the magnitude of both the offences at issue  
and the costs to bring this case to trial, it was incumbent  
upon the RCMP and Crown to ensure that Mr. C’s evidence was  
available to the Court. To this end, it was necessary to pay  
Mr. C an amount he felt satisfied would compensate him for the  
consequences his testimony might bring. According to the  
Crown, it was never a condition of the payment that it be  
devoted strictly to security.  
[1039]  
The Crown emphasizes that Mr. C did not reveal his  
evidence upon the promise of payment. Rather, he had supplied  
the information to the FBI years before he had any intention  
of becoming a witness and the benefit at issue was bestowed.  
vi. Mr. Bagri’s Statements  
[1040]  
The Crown submits that Mr. C’s evidence about  
Mr. Bagri’s statements should be accepted as reliable and  
credible. He consistently testified that he recalled  
Mr. Bagri’s statements to him, their content being such that  
he could never forget. While he could not always precisely  
R. v. Malik and Bagri  
Page 463  
recall the dates and locations of the conversations, itself  
unremarkable given the passage of time, his evidence is  
supported by the contemporaneous records prepared by  
Mr. Parrish to whom Mr. C related the conversations within  
days.  
[1041]  
The Crown makes more detailed submissions regarding  
certain of these statements as follows.  
Post-MSG Conference Statement  
[1042]  
The Crown submits that this conversation occurred as  
Mr. C testified. Although he did not recount it when  
interviewed by the FBI in 1992, his explanation that he was  
not specifically asked about it is credible. He had been a  
long time informant by 1992 and would have had no reason not  
to provide this information had he been asked.  
Gas Station Conversation  
[1043]  
The Crown submits that the totality of the evidence  
establishes that the meeting at Avtar Singh’s gas station  
occurred two or three days prior to Mr. C’s September 25  
debriefing with Mr. Parrish, either on September 21 or 22.  
[1044]  
There is no conflict between a meeting on either of  
these dates and Mr. Bagri’s employment records from Tolko  
Industries in Kamloops. These records indicate that September  
R. v. Malik and Bagri  
Page 464  
21 and 22 were a Saturday and Sunday respectively, days on  
which Mr. Bagri did not work. They further indicate that he  
was late for work on Monday, September 23. A weekend trip to  
New York would have been feasible within these parameters.  
Furthermore, business records indicating that Avtar Singh did  
not take possession of the gas station until sometime between  
September 11 and 18, 1985, are not inconsistent with  
Mr. Parrish’s evidence that he met with Mr. C on September 25.  
[1045]  
Although it was Mr. C’s evidence that he attended at  
Avtar Singh’s gas station after work and that he worked  
weekdays, the Crown submits that he was never cross-examined  
whether he ever worked weekends and it therefore remains  
possible that he did. He may also have been mistaken about  
working weekends or about having worked the day Avtar Singh  
telephoned him. Given his obvious difficulties with dates and  
times, a mistake about such a detail is understandable and of  
no consequence.  
[1046]  
Equally understandable and of no consequence,  
submits the Crown, is the fact that Mr. C may have telescoped  
the period of time that elapsed between the Air India/Narita  
explosions and his meeting with Mr. Bagri. What is important  
is his clear recollection of the sequence of events: the  
assassination attempt in New Orleans, the start of his  
R. v. Malik and Bagri  
Page 465  
anonymous tips to the FBI, the FBI’s raid on his apartment,  
the Air India/Narita explosions, the meeting with Mr. Bagri at  
Avtar Singh’s gas station, and the passing of this information  
to Mr. Parrish. Mr. Parrish’s evidence provides solid points  
of reference for many of these events and anchors the end of  
the sequence on September 25, 1985.  
[1047]  
The Crown submits that the evidence of Mr. C’s  
former roommates corroborates his account of the circumstances  
surrounding his conversation with Mr. Bagri.  
[1048]  
Mr. C testified that on the date of the  
conversation, his roommates included Balbir Singh and Gurmit  
Singh. Balbir Singh testified that he and Gurmit Singh were  
still in the [ ] Avenue apartment with Mr. C for a couple of  
months following the FBI/INS raid. Mr. Kalotia’s evidence was  
also supportive, as he testified that he had not been living  
in the [ ] Avenue apartment at the time of the raid, and that  
Mr. C had moved in with him in the Bronx in 1985 sometime  
after the raid. The Crown submits that the obvious inference  
to be drawn from this is that Mr. Kalotia could not have been  
asked to drive Mr. C to the gas station nor could he have been  
present for the conversation Mr. C subsequently had with his  
roommates since he was not an occupant of the [ ] Avenue  
apartment at the material time.  
R. v. Malik and Bagri  
vii. No Reason to Fabricate  
Page 466  
[1049]  
The information Mr. C supplied the FBI with respect  
to the Air India/Narita explosions formed only a small  
fraction of the total information he provided them over the  
years. Accordingly, the Crown submits, he would have had no  
reason to wrongfully and purposefully blame anyone for the  
heinous offences charged, least of all Mr. Bagri, a friend and  
someone who had never harmed him. The Crown further submits  
that had Mr. C deliberately sought to implicate Mr. Bagri, he  
would have concocted a more comprehensive account; this would  
not have been difficult since the information with which to do  
so was in the public domain. The nature of the statements Mr.  
C attributes to Mr. Bagri imbues them with an air of  
authenticity.  
[1050]  
Further, Mr. C frequently referred to other people  
in giving his evidence. When he testified about the  
conversation at Avtar Singh’s gas station, for example, he  
indicated that he had been driven by Gurmit Singh in Balbir  
Singh’s vehicle, and he also named other individuals who had  
been present at the gas station. In doing so, Mr. C was  
exposing himself to dangerous contradiction had his accounts  
simply been concocted. However, he was not ultimately  
challenged by the evidence of Balbir Singh and Gurmit Kalotia,  
R. v. Malik and Bagri  
Page 467  
nor were Avtar Singh or Gurcharan Singh, who had been present  
at the gas station, called to testify. The Crown also notes  
that Mr. C’s evidence about speaking with Mr. Bagri at the  
Stockton conference in September 1987 was confirmed by  
surveillance photographs, the existence of which he had been  
unaware.  
viii. Vetrovec Caution  
[1051]  
The Crown submits that Mr. C’s evidence does not  
give rise to serious credibility and reliability issues such  
that a Vetrovec caution is necessary. In the event the Court  
determines that such a caution is warranted, however, his  
evidence can and should still be accepted.  
b.  
[1052]  
The Related Witnesses  
The Crown submits that there is nothing in the  
evidence of the other witnesses that challenges either Mr. C’s  
credibility or the reliability of his accounts of Mr. Bagri’s  
incriminatory statements.  
i.  
The FBI Witnesses – Mr. Parrish and Mr. Cloonan  
[1053]  
Mr. Parrish was a reliable witness, the Crown  
submits, whose evidence even Mr. Bagri does not challenge,  
other than with respect to the information he received from  
Mr. C on September 25, 1985. His evidence in all other  
respects can therefore be relied upon.  
R. v. Malik and Bagri  
Page 468  
[1054] The defence criticism of Mr. Parrish stems from the  
language he used in his internal September, 1985 telex to set  
out what Mr. C had conveyed to him about his conversation with  
Mr. Bagri. It was general and did not use words to the effect  
that “the source had a face-to-face meeting with Ajaib Singh  
Bagri during which Bagri admitted that his group was  
responsible for the Air India bombing”. Nevertheless, the  
Crown submits, this is what Mr. C testified he told Mr.  
Parrish and what Mr. Parrish confirmed he had been told by Mr.  
C during their September, 1985 debriefing. Mr. Parrish also  
thoroughly explained his reasons for drafting the telex as he  
had, namely, the protection of Mr. C’s identity in light of  
the singular nature of the information he had provided.  
[1055]  
Mr. Parrish disagreed with defence suggestions that  
the true insignificance of the information was reflected in  
its placement in his telex, and testified that he had given  
the information prominence by distributing it promptly via “an  
immediate teletype”, thus ensuring Canadian authorities would  
have received it within two days of his own receipt of the  
information. The Crown notes that even Mr. Cloonan admitted  
that, notwithstanding the placement of the Air India  
information within the telex, he was able to appreciate its  
significance and that others would have been able to as well.  
R. v. Malik and Bagri  
Page 469  
Mr. Parrish also disagreed that the amount of money Mr. C had  
received from the FBI for information regarding Air India was  
a further indication that the information was not particularly  
significant.  
[1056]  
Additional support for Mr. C and Mr. Parrish’s  
accounts is provided by the documentary record. Not long  
after Mr. C had become an informant to the FBI, the RCMP  
became interested in having him come to Canada to solicit  
information from Mr. Bagri. Negotiations between the RCMP and  
FBI towards this end were captured in a series of documents  
and communications from the spring of 1986. Ultimately, Mr.  
C’s lack of immigration status in the United States prevented  
the plan from materializing at that time.  
[1057]  
In May, 1987, Mr. Parrish had an informal discussion  
regarding Mr. C with Cpl. Bell of the RCMP who happened to be  
in New York on another matter. Cpl. Bell described the  
information he received from Parrish in the following terms in  
a transit slip dated June 2, 1987:  
Sometime after the Air India incident of 85-06-23  
the source is alleged to have been present with  
BAGRI and a group of New York Sikhs discussing  
police action resulting from the New York claim of  
responsibility for the disaster. … In response to a  
statement from a New York Sikh questioning as to why  
police were hasseling [sic] them so much and that  
they (New York Sikhs) had nothing to do with the  
incident, BAGRI stated that he knew they didn’t have  
R. v. Malik and Bagri  
Page 470  
anything to do with it because we (BAGRI et al) were  
responsible. [emphasis added]  
[1058]  
The state of the FBI’s knowledge about what  
Mr. Bagri told Mr. C in September, 1985 is reflected in a June  
24, 1987 telex from the Acting Director of the FBI to the New  
York office which states in part:  
All these communications concern a human source  
controlled by S/A Ron Parrish of FBI New York who  
was privy to information provided directly from  
Ajaib Singh Bagri as to his (Bagri’s) criminal  
involvement with the June 23, 1985 Air India  
disaster”. [emphasis added]  
[1059]  
The information Mr. C had provided is also restated  
later in the telex:  
Considering the information that this source has  
provided, specifically that Ajaib Singh Bagri in the  
informant’s presence, would have claimed  
responsibility, on behalf of himself and his  
associates, for the Air India disaster… [emphasis  
added]  
[1060]  
This telex quoted extensively an RCMP communication  
to the Director of the FBI of June 11, 1987, including the  
passages just cited.  
[1061]  
Accordingly, the Crown submits, Mr. Parrish’s  
version of the intelligence was clear as of at least 1987, if  
not earlier, and certainly before the Lachine conference  
debriefing in 1989 which is when Mr. Bagri contends he first  
discovered these details.  
R. v. Malik and Bagri  
Page 471  
[1062]  
The Crown further submits that the evidence  
establishes that Mr. Parrish followed all the proper  
procedures for recording, disseminating and following up on  
the information conveyed to him by Mr. C. It is evident that  
none of his superiors felt that follow-up or further details  
were required, as neither were requested of him after his  
internal September, 1985 telex had been disseminated to other  
FBI offices, including Headquarters, and the RCMP. Had the  
location of the meeting, whether it had been in person or over  
the telephone, and the identity of the “several members” of  
the Babbar Khalsa referred to in that telex been important,  
that information could easily have been requested.  
[1063]  
The Crown challenges the hypotheticals that were put  
to Mr. Cloonan by the defence, asserting that they do not  
accurately reflect the evidence in this case and are therefore  
of no relevance. It points, for example, to the following  
hypothetical:  
…assuming an informant provided a tip to a New York  
Mr. in relation to Air India implicating a suspect  
as a result of a face-to-face meeting, a statement  
made at a face-to-face meeting, is it conceivable in  
the culture and practice of the office that the Mr.  
would such a tip to himself and not tell anyone?  
[1064]  
The Crown submits that Mr. Parrish did not “keep  
such a tip to himself and not tell anyone”. Rather, he  
R. v. Malik and Bagri  
Page 472  
immediately recorded it in a telex that was sent on September  
26, 1985 to FBI Headquarters, other FBI offices, and  
ultimately to the RCMP. Consequently, Mr. Cloonan’s responses  
to the various hypotheticals are of no value, particularly  
since, the Crown submits, he was never qualified as an expert  
and his cross-examination revealed him to be a biased witness.  
[1065]  
With respect to the September 26, 1985 telex that  
Mr. Bagri suggests has “mysteriously disappeared”, the Crown  
submits that this document is in fact Mr. Parrish’s undated  
internal September telex. The September 27, 1985 telex from  
the Director of the FBI to the Legal Attaché in Ottawa that  
was based upon the internal telex opens, “New York office  
advised by teletype September 27, 1985, as follows”.  
“September 27, 1985” therefore indicates when the office was  
advised, not the date of the telex itself. Moreover, the  
Crown notes, Mr. Parrish’s internal telex also bears the  
handwritten notation “9/26”.  
ii. Balbir Singh  
[1066]  
The evidence of Balbir Singh, the Crown submits,  
establishes that he, Mr. C, Gurmit Singh, Jessie Parmar,  
Parmjit Singh and Pushkar Sharma were the occupants of the  
fourth floor [ ] Avenue apartment at the material time,  
September, 1985. His evidence also places him in an apartment  
R. v. Malik and Bagri  
Page 473  
with “the other guy named Gurmit” in late 1985, which is  
significant in light of Mr. Kalotia’s evidence.  
[1067]  
The Crown submits that Balbir Singh’s evidence is  
not particularly helpful to Mr. Bagri since he acknowledged  
that it was possible that he might not have overheard Mr. C’s  
conversation with Jessie Parmar upon his return from Avtar  
Singh’s gas station. Furthermore, the question asked of  
Balbir Singh regarding whether Mr. C had ever asked to borrow  
his vehicle to visit a gas station in New Jersey was very  
precise and leaves open the possibility that either Mr. C or  
Gurmit Singh could have asked to borrow his vehicle without  
indicating their specific purpose. Balbir Singh’s evidence is  
suspect, in any event, given his obvious willingness to lie  
under oath as demonstrated by his bizarre and contradictory  
testimony regarding whether he had lied to immigration  
authorities.  
iii. Gurmit Singh Kalotia  
[1068]  
The Crown submits that the totality of the evidence  
indicates that Mr. Kalotia was not the Gurmit Singh who lived  
on the fourth floor of the [ ] Avenue apartment with Mr. C.  
The evidence upon which the Crown bases its submissions is  
evident from the review of the witnesses’ testimony and need  
not be repeated.  
R. v. Malik and Bagri  
[1069] The Crown further submits that the breach of  
Page 474  
Mr. Bagri’s s. 7 Charter rights by the late disclosure of  
Insp. Nash’s notes of his July, 2004 telephone conversation  
with Mr. C has occasioned no prejudice to Mr. Bagri and that  
no remedies are therefore warranted. There is no reasonable  
basis upon which to believe that the information contained in  
those notes would have assisted him in the examination of  
either Balbir Singh or Mr. Kalotia.  
iv. Kamal Jit  
[1070]  
The Crown submits the evidence of Mr. Jit was  
nonsensical and offers nothing to diminish the credibility of  
Mr. C.  
[1071]  
Mr. Jit’s evidence, it submits, constituted nothing  
but a series of obvious lies. For example, he testified that  
Mr. C had asked him to contact Mr. Bagri’s counsel to inquire  
how he could testify so as to save Mr. Bagri. Presumably,  
however, the fact that Mr. C himself was supposedly falsely  
attributing the “we did it” statement to Mr. Bagri would have  
fulfilled this purpose, thus rendering it unlikely he would  
have made such a request of Mr. Jit. While other examples  
abound, such as his on-going and evident lies about his  
ability to understand English, his most patent lie was his  
assertion that he had not been interviewed by Mr. Bagri’s  
R. v. Malik and Bagri  
Page 475  
counsel, a lie he repeated when questioned about the matter a  
final time at the end of his testimony.  
[1072]  
The Crown also submits that Mr. Jit’s utility as a  
witness is further undermined by the fact that he was wholly  
inconsistent and tried to embellish his evidence. For  
example, he originally testified that Mr. C had told him that  
Mr. Bagri had suggested that he shift the blame for the Air  
India explosion by telling others that Mr. Bagri and his group  
had done it. In cross-examination, however, he testified that  
Mr. C admitted to having lied to investigators since he had  
made up the fact that Mr. Bagri had said “we did it”.  
[1073]  
With respect to the late disclosure of Mr. C’s  
August, 2004 statement to Insp. Nash regarding Mr. Jit, the  
Crown submits that that statement would not have affected the  
totality of Mr. Jit’s evidence or that of Mr. C. Mr. Bagri  
has therefore not suffered any prejudice as a result of the  
late disclosure.  
2.  
a.  
Position of Mr. Bagri  
Mr. C  
[1074]  
Mr. Bagri analyzes Mr. C’s evidence through what he  
characterizes as the three classical tenets of testimonial  
trustworthiness: character, absence of self-interest or bias,  
and consistency of testimony. He submits that Mr. C  
R. v. Malik and Bagri  
Page 476  
demonstrates none of these hallmarks and that his evidence is  
therefore unreliable.  
i.  
Character  
[1075]  
Mr. Bagri uses strong language in describing Mr. C  
as “an infamous human being – a person of the most base  
character capable of engaging in atrocious behaviour.” He  
focuses on the following areas in demonstrating his bad  
character:  
Involvement in Criminal Activities  
[1076]  
Mr. Bagri submits that Mr. C’s unscrupulousness  
begins with his involvement in two serious criminal matters in  
India. He murdered his brother in the first and was a  
fugitive from justice for attempted murder in the second.  
Although ultimately acquitted on the latter charge, he was at  
large for many years and only turned himself in after the  
acquittal of his co-accused rendered his own acquittal likely.  
Mr. C’s Immigration History  
[1077]  
Mr. Bagri describes Mr. C’s immigration history as  
“a tissue of falsehoods, fabricated documentation and lies  
made under oath”. Mr. C’s initial entry into the United  
States was under false pretences. He then submitted two  
applications for political asylum claiming, on penalty of  
R. v. Malik and Bagri  
Page 477  
perjury, that he had legitimate fears such that he could not  
return to India. He conceded at trial that he had no such  
fears and that the application was simply a means of obtaining  
legal status in the United States, a concession confirmed by  
his returning to India on an almost annual basis since 1986.  
[1078]  
Between the two asylum applications, Mr. C obtained  
a temporary employment authorization under an amnesty program  
using false documentation. His justification that he had lied  
to improve himself, Mr. Bagri submits, is a theme running  
through his evidence and one that simply demonstrates his  
willingness to lie whenever it suits his self-interest. Mr.  
C’s disregard for the truth, even under oath, is evident more  
recently in his false naturalization application and his false  
affidavit filed in support of an application for a replacement  
passport.  
[1079]  
Mr. C consistently denied that he had provided  
information to the FBI in exchange for immigration assistance.  
He was reluctant to admit that he had received immigration  
assistance at all from the organization and when he eventually  
did, left the impression that it was not at his request and  
did not come with conditions. Mr. Bagri counters that not  
only is this assertion absurd since the FBI would not have  
altruistically assisted him without some benefit to itself but  
R. v. Malik and Bagri  
Page 478  
it is contradicted by a number of documents entered at trial  
in which various FBI officials suggest at the least the  
periodic existence of such a relationship.  
Pursuit of Benefits  
[1080]  
Mr. Bagri submits that the negotiations leading to  
the agreement to pay Mr. C the unprecedented sum of $300,000  
USD for his testimony in these proceedings speak volumes about  
his character.  
[1081]  
Mr. C knew from the outset that he could not be  
compelled to come to Canada to testify. He began his  
negotiations for his testimony with Inspectors Nash and  
van de Walle at only his second meeting with them, asking how  
much he would be paid to testify. The officers replied that  
they could not pay him for his testimony but could pay him to  
provide for his own protection. Mr. Bagri submits that from  
this point forward a fiction was maintained that the RCMP was  
paying Mr. C for his protection rather than his testimony.  
That this was but a fiction is evident from the following:  
1.Mr. C has returned to the ancestral village in India that  
he shares with Mr. Bagri on a number of occasions since  
charges were laid in 2000. Although it was known in the  
village that he was going to testify in these  
proceedings, he has never been threatened nor has he  
suffered any harm. This belies the existence of both  
objective and subjective security concerns on the part of  
Mr. C.  
R. v. Malik and Bagri  
Page 479  
2.Mr. C’s initial position regarding an appropriate payment  
was $500,000. The RCMP countered that this sum was too  
high and, following further negotiations during which  
they told Mr. C that the amount he would receive was  
related to the amount of information he could recall,  
offered $250,000. Mr. C replied that such a low figure  
meant his information was of little value to them, and  
countered with $300,000, the amount finally settled upon.  
Nothing in these negotiations suggests any objective  
attempt to assess Mr. C’s security needs. Rather, says  
Mr. Bagri, this was “naked, raw bargaining between two  
poker players”.  
3.A clause in the release and indemnity agreement regarding  
the $300,000 payment provided that Mr. C would be  
required to return the money in the event he did not  
testify, again suggesting that Mr. C was paid for his  
testimony, not security.  
[1082]  
Interwoven with these negotiations regarding the  
quantum Mr. C would be paid for his evidence were the two  
memory-refreshing exercises of September, 1999 and March,  
2000. Wholly inappropriate standing alone, Mr. Bagri submits  
that their combination with the payment negotiations has  
resulted in a number of manifest improprieties:  
1.Mr. C was, in essence, being told what he was expected to  
say by prompting from Mr. Parrish, the corroborating  
witness.  
2.The RCMP did not assess the quantum of payment to Mr. C  
objectively on the basis of his security needs.  
3.The quantum of payment had not been determined prior to  
the memory refreshing exercises when Mr. C was being told  
what evidence was expected of him though prompting and  
leading. The appropriate process is to exhaust the  
benefits to a witness prior to obtaining their account so  
as to avoid the danger they will be influenced by the  
offer of money.  
R. v. Malik and Bagri  
[1083] Mr. Bagri submits that Mr. C’s demand for an  
Page 480  
additional $200,000 on the eve of his testimony clearly  
reveals him as a witness who is testifying out of self-  
interest rather than a commitment to the truth. His attempts  
to explain away his conduct are rife with inconsistencies.  
For example, he testified that the February 12 fax to Insp.  
Nash was simply a tactic to buy time before he was required to  
attend court to testify. However, Mr. Bagri notes, Mr. C’s  
explanation for his initial request for the additional money  
in early December, 2003 had nothing to do with buying time;  
rather, it was the result of a “misunderstanding”.  
Furthermore, his claim that he misunderstood and thought that  
he might receive the additional money unofficially is contrary  
to the release and indemnity agreement that he signed under  
the auspices of independent legal advice.  
The New Orleans Incident  
[1084]  
Despite Mr. C’s assertions to the contrary, Mr.  
Bagri submits that it is rational to infer from the evidence  
that he was aware of the New Orleans conspiracy in advance of  
its attempted execution:  
1.He responded quickly to assist Lal Singh and Dalbir Singh  
flee New Orleans;  
2.His name was on Mr. Birk’s list of mercenary trainees;  
R. v. Malik and Bagri  
Page 481  
3.He knew the terrorist purpose of the mercenary training  
sufficiently well to inform Mr. Parrish; and  
4.He admitted to being concerned that he might be  
implicated in the New Orleans conspiracy.  
[1085]  
In providing money for the procurement of airline  
tickets for Lal Singh and Dalbir Singh, whom Mr. C knew to be  
fugitives, Mr. C was clearly acting as an accessory after the  
fact to a murder conspiracy.  
[1086]  
With respect to the $5,000 for mercenary training,  
Mr. Bagri submits that Mr. C, as a founding member of the  
Deshmesh Regiment and member of the executive, must have  
realized the purpose of those funds at the time the  
expenditure was approved. His testimony that other members of  
the executive wished to keep the dedicated purpose for the  
funds a secret from him is simply not believable.  
Becoming an FBI Informant  
[1087]  
Mr. Bagri submits that Mr. C’s initial contact with  
the FBI in May, 1985 constituted a pre-emptive strike to  
protect himself from potential jeopardy. As an illegal  
immigrant, he was subject to immediate deportation.  
Furthermore, even putting aside the issue of whether he had  
been aware of the New Orleans conspiracy in advance of its  
attempted execution, he was clearly an accessory after the  
fact, which placed him in serious criminal jeopardy at the  
R. v. Malik and Bagri  
Page 482  
time he became an informant. For both these reasons he had  
much to gain in making himself valuable to the FBI.  
[1088]  
Mr. C himself was inconsistent regarding his  
motivation for becoming an FBI informant. Under cross-  
examination, he initially testified that he was not fearful of  
being arrested and that this therefore had no role in his  
decision to become an informant. When challenged with his  
direct evidence that he was in fact afraid of being deported,  
he then agreed that he was afraid because of the claims of  
responsibility for Air India reported in the media, as well as  
because of the New Orleans conspiracy.  
ii. Bias and Self-interest  
[1089]  
Mr. Bagri submits that Mr. C is an individual driven  
by extreme self-interest as amply demonstrated by the  
following:  
1.his general willingness to lie whenever it is in his  
self-interest to do so;  
2.his flight from India after the stabbing incident and his  
decision not to return to deal with the charge until he  
knew he was assured of the same acquittal granted his  
brother;  
3.his accusation that Joginder Singh had been the one to  
assist Lal Singh and Dalbir Singh in their escape from  
New Orleans to deflect attention from himself;  
4.his numerous lies regarding immigration matters;  
R. v. Malik and Bagri  
Page 483  
5.his immediate exploration of how much money he could  
receive from the RCMP for his testimony;  
6.his quick adoption of Insp. van de Walle’s  
characterization of payment as being for his protection  
rather than his testimony so as to facilitate his  
actually obtaining those funds;  
7.his attempts to extort an additional $200,000 on the eve  
of his testimony;  
8.his consistently evasive and changing evidence whenever  
trapped in a contradiction that reflected poorly upon him  
or might diminish his value as a Crown witness; and  
9.his expectation of some unspecified future payment,  
combined with the RCMP’s $1 million reward.  
iii. Mr. C’s Evidence Regarding Mr. Bagri’s Alleged  
Statements  
[1090]  
The defence makes the global submission that  
Mr. Bagri’s adherence to devout Sikhism renders it highly  
unlikely that he would have confided in Mr. C. Not only was  
Mr. C a non-practicing Sikh of dubious character, but Mr. C  
himself acknowledged that he did not have the trust of Mr.  
Bagri at the material time. This absence of trust between the  
two men makes it highly improbable that Mr. Bagri would have  
confided in Mr. C the incriminating information alleged.  
[1091]  
Mr. Bagri also makes specific submissions regarding  
the alleged statements as follows:  
Post-MSG Conference Statement  
Mr. Bagri challenges this conversation as a recent  
fabrication, pointing to Mr. Parrish’s evidence that Mr. C  
[1092]  
R. v. Malik and Bagri  
Page 484  
never mentioned it at any time during their relationship. He  
submits that it is striking that Mr. C did not raise it during  
the September, 1985 debriefing with Mr. Parrish, a time when  
it would have been logical for him to have done so. Not only  
would the conversation have been relatively fresh in his mind,  
but Mr. C was in considerable jeopardy with respect to both  
criminal and immigration matters, and was being questioned by  
Mr. Parrish about Mr. Bagri.  
[1093]  
Mr. C also did not mention the statement in 1992  
when questioned by the FBI about the WSO convention and the  
subsequent meeting at his apartment. Mr. Bagri submits that  
his explanation that he had not been specifically asked about  
it is singularly unconvincing. An FBI informant since 1985,  
he had provided information regarding Mr. Bagri on numerous  
occasions in the past and would have had no reason to be  
untruthful. That the statement first emerged during the  
payment negotiations establishes beyond doubt that it is a  
recent fabrication.  
Gas Station Conversation  
[1094]  
The defence submits that this alleged conversation  
lying at the heart of the Crown’s case against Mr. Bagri is  
another recent fabrication.  
R. v. Malik and Bagri  
[1095] Ascertaining the date of the conversation is  
Page 485  
critical in determining whether Mr. Bagri could have been in  
the United States at the time as Mr. C maintains. Mr. C,  
however, was extraordinarily evasive with respect to dates and  
attempted, though unsuccessfully, to tailor and harmonize his  
evidence about the timing of certain events. He consistently  
testified that the meeting took place a couple of weeks after  
the Air India incident but when cross-examined on this point,  
testified that he interpreted “a couple of weeks” to simply  
mean more than one week and that it could mean anything from  
two to twenty weeks. He was equally evasive regarding how  
long after the FBI/INS raid his roommates dispersed. He  
testified in direct examination that they left a day or two  
after the raid, but when it was put to him in cross-  
examination that other parts of his evidence made this  
impossible, he testified that they actually left several weeks  
after the raid. When the inconsistency that this response  
raised was put to him, he attempted to rationalize it by  
saying that few days could actually mean ten or even fifteen  
days. He was certain, however, that his meeting with Mr.  
Bagri occurred after the FBI/INS raid on his apartment.  
[1096]  
Thus, Mr. C’s evidence on the issue places the  
meeting at some undetermined time after July 22, 1985,  
R. v. Malik and Bagri  
Page 486  
presumably within days or weeks of that date since his  
roommates were still present. Other time constructs from the  
evidence that must be considered include the following:  
1.Mr. C testified that he worked Monday to Friday, and  
received the telephone call from Avtar Singh upon  
returning home from work;  
2.Mr. C testified that he related his conversation with Mr.  
Bagri to Mr. Parrish within a few days;  
3.Mr. Parrish testified that Mr. C first mentioned this  
conversation during a debriefing on September 25, 1985;  
4.Business records indicate that the earliest date on which  
Avtar Singh could have come into possession of the New  
Jersey gas station was September 11, 1985.  
[1097]  
The consistent evidence, therefore, is that any  
meeting at Avtar Singh’s gas station had to have taken place  
on a weekday after September 11 and prior to September 25,  
1985. This, Mr. Bagri submits, sets up three contradictions:  
1.Mr. Bagri’s work records, which have been proven to be  
reliable, indicate that he was at work at Tolko Industries  
in Kamloops every weekday in September;  
2.There is a complete absence of any evidence indicating  
that Mr. Bagri traveled to New Jersey in late September,  
1985. By that time, three months after the Air  
India/Narita incidents, Babbar Khalsa suspects were the  
subject of CSIS and RCMP surveillance, telephone  
interceptions and border watches. This latter point was  
confirmed by Detective Sergeant Weston’s evidence about  
his interactions with Mr. Bagri at Heathrow in October,  
1985. Records seized from Friendly Travel, the agency  
that the Babbar Khalsa regularly used for its travel  
arrangements, also do not indicate Mr. Bagri traveling to  
New Jersey during the material time period.  
R. v. Malik and Bagri  
Page 487  
3.A meeting in late September would have been a full two  
months after the FBI raid on Mr. C’s apartment on July 22.  
Given his testimony that his roommates dispersed a few  
days following the raid, a meeting in late September would  
be inconsistent with his evidence that he returned to his  
apartment and related to his roommates what Mr. Bagri had  
told him. Both Gurmit Singh and Balbir Singh testified  
that no such thing ever happened.  
[1098]  
Accordingly, submits Mr. Bagri, Mr. C’s evidence  
about his conversation with Mr. Bagri simply does not accord  
with the known facts.  
[1099]  
A further difficulty with Mr. C’s account is  
introduced by the evidence of Mr. Parrish. As will be  
discussed further below, Mr. Bagri challenges Mr. Parrish’s  
evidence regarding how Mr. C’s information about this  
conversation emerged. However, even if Mr. Parrish’s evidence  
is taken at face value, the evolution of the statement is  
suspicious. Mr. C provided an initial account of the  
conversation in late September, 1985 and then supplemented it  
with additional details four years later, a process that  
strongly suggests fabrication.  
Stockton and Richmond Hill Temple Statements  
[1100]  
Mr. Bagri submits that Mr. C’s evidence regarding  
the remaining statements, in particular that from the Stockton  
conference, is tainted by the quid pro quo the FBI held out to  
R. v. Malik and Bagri  
Page 488  
him to obtain his re-entry into the United States in  
September, 1987.  
[1101]  
Mr. C left the United States in the fall of 1986 to  
attend the funeral of his mother in England. He did not have  
status to re-enter the United States, and he contacted Mr.  
Parrish from London in July, 1987 to seek his assistance in  
this regard. Mr. Parrish interceded with the INS and was able  
to facilitate Mr. C’s re-entry into the United States on  
September 16, 1987 by means of a special dispensation. Mr.  
Parrish was asked whether he would have made it clear to Mr. C  
that he expected Mr. C to resume his role as an informant. He  
replied, “Yes, he would have known that, yes. There would  
have been no reason to bring him back if he wasn’t willing to  
continue that role”. Three days later on September 19, the  
FBI dispatched Mr. C to the Stockton conference to attempt to  
elicit information from Mr. Bagri.  
[1102]  
FBI and RCMP documents indicate that FBI  
Headquarters had not considered Mr. C a valuable informant  
during the period prior to his return to the United States,  
although Mr. Parrish testified that he did not share this  
view. The fact that Mr. C then returned from the Stockton  
conference with information incriminating Mr. Bagri (for the  
first time if the first two statements are accepted as recent  
R. v. Malik and Bagri  
Page 489  
fabrications) is highly suspect in light of the quid pro quo  
he had been offered. Both Richmond Hill Temple statements are  
similarly tainted.  
[1103]  
The fragility of Mr. C’s memory with respect to  
these three statements is amply evident in the review of his  
evidence. Mr. Bagri submits that this strongly suggests they  
are fabrications devised to serve Mr. C’s short term  
interests. At a minimum, they are not statements indelibly  
etched in Mr. C’s memory such that his evidence regarding them  
can be safely relied upon to found a conviction.  
iv. Vetrovec Caution  
[1104]  
Mr. Bagri submits that in light of the magnitude of  
Mr. C’s credibility problems and his centrality to the Crown’s  
case against him, a strong Vetrovec warning is necessary.  
b.  
[1105]  
Mr. Parrish  
Mr. Bagri challenges Mr. Parrish’s reliability  
solely with respect to his recollection as to how Mr. C’s  
account of his conversation with Mr. Bagri at the gas station  
unfolded, and, in particular, what information Mr. C had  
provided in September, 1985.  
[1106]  
Mr. Bagri submits that the evolution over the course  
of Mr. Parrish’s own testimony as to what he knew about the  
R. v. Malik and Bagri  
Page 490  
gas station conversation in September, 1985 is an initial  
cause to be suspicious about whether he reliably recalled what  
he knew. As the additional details about the meeting having  
been face-to-face and others having been present in the  
vicinity emerged, Mr. Parrish was cross-examined whether he  
had disclosed these to the Crown. He replied that he believed  
he had. However, it has been admitted that Crown interview  
notes do not contain any reference to Mr. C having told Mr.  
Parrish during his September 25, 1985 debriefing that he had  
met with Mr. Bagri face-to-face and that others had been  
present.  
[1107]  
Mr. Bagri submits that the circumstances surrounding  
the manner in which Mr. Parrish recorded and communicated the  
information he received from Mr. C make it probable that it  
was initially the general low-level information reflected in  
the face of the telex. Mr. C could easily have derived this  
information from media reports or rumours in the community  
about the Babbar Khalsa being responsible for the Air  
India/Narita explosions. Information of this general nature  
would also be consistent with the nominal payment of $250 that  
Mr. C received from the FBI for this information. Moreover,  
Mr. C himself conceded during the second memory refreshing  
R. v. Malik and Bagri  
Page 491  
exercise that one of his sources for this information was  
media and rumours in the community.  
[1108]  
While emphasizing that he does not impugn  
Mr. Parrish’s integrity or honesty, Mr. Bagri submits that  
there are numerous factors that undermine the reliability of  
his account of how the information emerged:  
1.Mr. Parrish’s recollection, by his own admission, is  
poor, and he has only had a few contemporaneous documents  
from which to recall detailed nuances of a debriefing in  
September 1985.  
2.Mr. Parrish has never been given access to Mr. C’s FBI  
file with which to refresh his memory.  
3.The September 26, 1985 telex captioned “Indian Terrorist  
Matters” referred to in the July 1989 Lachine telex and  
purportedly recording Mr. C’s meeting with Mr. Bagri at  
Avtar Singh’s gas station has never been produced.  
4.Mr. Parrish agreed that there is no document that  
accurately reflects what he believes Mr. C told him in  
September 1985. All that exists is his September 1985  
telex which is inconsistent with what he asserts he was  
told by Mr. C. Furthermore, he agreed that he did not  
investigate the reliability of this information. The  
absence of a record and appropriate follow-up contrary to  
what Mr. Cloonan testified would have been proper FBI  
procedure strongly suggests that Mr. Parrish simply did  
not have the information at that stage.  
5.Mr. Parrish testified that he had not shared the  
information with his partner or superiors, all of whom  
would have known Mr. C’s identity. Mr. Cloonan described  
this as an egregious departure from standard practice.  
Mr. Parrish’s conduct in this regard is counterintuitive  
in light of both the importance of informant development  
to an agent’s progress within the FBI, and Mr. C’s  
tenuous status as an informant. As an example of the  
latter, Mr. Bagri points to a July 1986 telex from FBI  
R. v. Malik and Bagri  
Page 492  
Headquarters to the New York office setting out reasons  
why a joint FBI/RCMP operation to send Mr. C to Canada  
was not approved at that time. In addition to Mr. C’s  
immigration status, the telex referred to Mr. C’s lack of  
productivity as an informant. Mr. Parrish testified that  
he did not share this view of Mr. C but admitted that he  
still declined to forward the information he had  
allegedly received from Mr. C in September 1985 to  
Headquarters in an attempt to persuade them otherwise.  
Mr. Parrish also did not include the information from Mr.  
C in the administrative portion of his internal  
September, 1985 telex despite the fact that all other  
telexes in which he disguised the identity of informants  
recorded the true facts in that section. He testified  
that this was the only time he had departed from that  
practice.  
6.The documentary record belies Mr. Parrish’s assertion  
that Mr. C had implicated Mr. Bagri in September, 1985,  
and demonstrates the true evolution of the account. The  
following three documents are of particular import:  
a.Mr. Parrish’s internal September, 1985 telex did not  
refer to any meeting with Mr. Bagri or to any  
statement from a suspect, and clearly suggests that  
the information he had received from Mr. C was vague  
and general in nature.  
b.In May, 1987, Mr. Parrish had an informal discussion  
regarding Mr. C with Cpl. Bell of the RCMP who was  
in New York on an unrelated matter. Cpl. Bell  
described the information he received from Mr.  
Parrish in the following terms in a transit slip  
dated June 2, 1987:  
Sometime after the Air India incident of  
85-06-23 the source is alleged to have  
been present with BAGRI and a group of New  
York Sikhs discussing police action  
resulting from the New York claim of  
responsibility for the disaster. … In  
response to a statement from a New York  
Sikh questioning as to why police were  
hasseling [sic] them so much and that they  
(New York Sikhs) had nothing to do with  
the incident, BAGRI stated that he knew  
R. v. Malik and Bagri  
they didn’t have anything to do with it  
Page 493  
because we (BAGRI et al) were responsible.  
Cpl. Bell advised Cpl. Graham of his conversation  
with Mr. Parrish regarding Mr. C. Cpl. Graham’s  
continuation report of June 3, 1987 reads, in part:  
The source was present at a meeting  
between Bagri and a group of N.Y. Sikhs  
during which Bagri stated that he and his  
associates were responsible for the Air  
India disaster. The date of this meeting  
was [unknown] but it was not long after  
the A.I. disaster. This info is  
unconfirmed and may or may not be  
accurate.  
Mr. Bagri submits that the very fact that this  
information was being communicated in this entirely  
informal way without it being documented and passed  
through formal FBI channels indicates that Mr. C had  
mentioned some sort of story to Mr. Parrish but that  
it was of unknown reliability and not even worth  
documenting. Mr. Bagri points, too, to the fact  
that the document references New York Sikhs, not the  
Babbar Khalsa.  
c.Mr. Parrish’s July 1989 telex sets out the detailed  
account of Mr. C’s meeting with Mr. Bagri.  
Mr. Bagri submits that this documentary record  
revealing the true progression of Mr. C’s account  
ought to be relied upon as far more reliable than  
Mr. Parrish’s understandably fragile memory.  
c.  
[1109]  
Balbir Singh and Gurmit Singh Kalotia  
Contrary to the evidence of Mr. C, both Balbir Singh  
and Mr. Kalotia denied that Mr. C ever related Mr. Bagri’s  
alleged confession at Avtar Singh’s gas station to his  
roommates. Mr. Kalotia also testified that he never drove Mr.  
R. v. Malik and Bagri  
Page 494  
C to New Jersey, and Balbir Singh gave evidence to the effect  
that he had no recollection of ever lending his car to Gurmit  
Singh for such a purpose.  
[1110]  
Mr. Bagri submits that Mr. Kalotia was appropriately  
called to testify as he was the Gurmit Singh who was Mr. C’s  
roommate in 1985. Mr. Kalotia testified that he was the only  
person in the [ ] Avenue apartments in 1985 who was called  
“Gurmit”. Although he was never a permanent resident of the  
fourth floor apartment, he frequently stayed there overnight.  
More importantly, Mr. Bagri submits, the defence filed a  
motion to take commission evidence from Balbir Singh on or  
about July 9, 2004. Within a matter of days, Mr. C had  
contacted Mr. Kalotia in an effort to find Balbir Singh’s  
telephone number, referring to him as “the Balbir who used to  
live with us”. The Crown did not challenge Mr. Kalotia’s  
account of this telephone call.  
[1111]  
With respect to Balbir Singh, Mr. Bagri submits that  
Mr. C resiled from his evidence about all his roommates being  
present when he returned from Avtar Singh’s gas station as  
soon as he learned that Balbir Singh could testify and  
contradict him. He points in this regard to Insp. Nash’s  
notes of his interview with Mr. C on July 11, 2004 which  
state, in part, “he [Mr. C] remembered giving evidence that  
R. v. Malik and Bagri  
Page 495  
all of the roommates were present in the apartment after the  
meeting but now believes that Balbir was probably at work and  
not there”.  
d.  
[1112]  
Kamal Jit  
Mr. Bagri acknowledges that Mr. Jit’s evidence must  
be approached with caution and requires corroboration before  
being accepted. He submits there is corroboration, however,  
in the evidence of Mr. C. Although Mr. C indicated a lack of  
recollection when questioned about the specifics of his  
conversations with Mr. Jit, his evidence does confirm intimate  
discussions with Mr. Jit about Mr. Bagri and about having to  
testify.  
[1113]  
Most significantly, however, Mr. C was interviewed  
by Insp. Nash in August, 2004. The notes of that interview  
record Mr. C as indicating:  
… - he stated that Kamil JIT is very close to the  
BAGRI family – John [Mr. C] recalled stating to Kamil  
JIT that “he would not go to testify because you are  
pressing me and we are all village people” – he  
stated that Kamil JIT replied that he had to testify  
if BAGRI said that to him  
[1114]  
Accordingly, submits Mr. Bagri, Mr. C clearly does  
recall speaking with Mr. Jit about his testimony against Mr.  
Bagri. He submits that the Crown’s late disclosure of this  
information until after Mr. C had left the United States  
R. v. Malik and Bagri  
Page 496  
deprived him of the opportunity to have him recalled so that  
he could explore his reviving memory as to what he told Mr.  
Jit about testifying in these proceedings. It also denied him  
the opportunity to use the statement in preparing Mr. Jit to  
testify or in questioning him.  
C.  
Ms. E and Related Witnesses  
1.  
[1115]  
Position of the Crown  
The Crown asks the Court to accept Ms. E’s out of  
court statements to Mr. Laurie as truthful and to reject her  
viva voce testimony to the extent it conflicts with those  
statements.  
[1116]  
The Crown submits that Ms. E’s feigned lack of  
recall, her demonstrated unwillingness to cooperate with the  
police and her cooperation with Mr. Laurie only upon the  
promise of confidentiality are all consistent with her fear of  
Mr. Bagri. Although she testified to the contrary, there are  
numerous references in her statements to Mr. Laurie that  
illustrate that fear. The fact that Ms. E has,  
understandably, feigned loss of memory, however, does not  
impact upon the reliability of her statements to Mr. Laurie.  
The Court has already concluded that those statements were  
made in circumstances that guarantee their trustworthiness to  
a threshold level. Now, having heard the complete body of  
R. v. Malik and Bagri  
Page 497  
evidence, the Court should be equally satisfied with respect  
to their ultimate reliability.  
a.  
Ultimate Reliability of Ms. E’s Statements  
[1117]  
The Crown submits that the following factors support  
a conclusion that Ms. E’s statements to Mr. Laurie are  
ultimately reliable. Many of these were found in favour of  
the Crown at the threshold reliability stage:  
1.The simplicity of the core conversation, etched indelibly  
in Ms. E’s memory by the catastrophic context of the Air  
India/Narita explosions, renders it highly improbable  
that she could be mistaken. Mr. Bagri’s request to  
borrow her vehicle was remarkably simple. His  
explanation that he would be returning it since he was  
not going anywhere and only the bags were was unusual and  
soon unforgettable after the Air India/Narita explosions  
made its meaning clear. Not only is there virtually no  
chance of mistake or confusion regarding such a  
conversation, borne out by Ms. E’s consistency when  
relating it to Mr. Laurie multiple times, but there is  
also little likelihood of invention with respect to such  
a unique and seemingly benign exchange. Consequently,  
any inconsistencies or errors with respect to innocuous  
details in Ms. E’s statements should not affect the  
reliability of her accounts of the core conversation.  
2.Mr. Bagri never challenged Ms. E with respect to her  
truthfulness with Mr. Laurie, nor did he suggest to her a  
motive to falsely implicate Mr. Bagri. There is also  
nothing in the evidence to indicate such a motive.  
Rather, to the contrary, it establishes friendly  
relations between Ms. E and both Mr. Bagri and the Bagri  
family. While there is some evidence of disagreements  
between Ms. E and Mrs. Bagri regarding lottery winnings  
and childcare arrangements, there is nothing to suggest a  
level of animus on the part of Ms. E that would drive her  
to falsely implicate Mr. Bagri in these offences.  
R. v. Malik and Bagri  
Page 498  
3.Although she claimed a lack of recollection with respect  
to her statements to Mr. Laurie, Ms. E never denied  
making them. Throughout her testimony, she indicated  
that she had been truthful when speaking with Mr. Laurie.  
4.Mr. Laurie’s first visit to Ms. E’s residence on  
September 10, 1987, was an unannounced cold call for  
intelligence gathering purposes. Ms. E therefore had no  
opportunity to prepare herself to tell anything other  
than the truth.  
5.Ms. E told Mr. Laurie about the core conversation during  
this first visit. The “spontaneous declaration” came  
quickly as the result of Mr. Laurie speaking of the  
victims’ families. This again suggests a lack of  
opportunity for concoction or deliberation.  
6.Whether a promise of confidentiality enhances or  
undermines the reliability of a statement is a fact  
specific assessment. In the present case, there is no  
evidence that Ms. E had any motive to lie about the core  
conversation, nor is Mr. Bagri asserting as much.  
Furthermore, she had been told by Mr. Laurie that the  
information she provided would be shared with other  
persons in authority; the confidentiality assurance was  
solely with respect to her identity. Ms. E’s fear of  
public scrutiny was not that a lie would potentially be  
exposed, but rather, that her identity as someone who  
could incriminate Mr. Bagri would be revealed, thereby  
putting herself and her family at risk. No concerns  
regarding lack of accountability should arise in these  
circumstances.  
7.Mr. Laurie, when testifying about Ms. E’s demeanour, did  
not describe hesitancy or uncertainty, which would have  
been expected had she been confusing facts with rumors.  
He testified that he went over the core conversation with  
her a number of times and she was consistent every time  
she related it to him.  
8.The core conversation is not impacted by the lack of  
contemporaneity since it is not the type of exchange that  
could ever be confused or forgotten. It is not a  
detailed or nuanced event, but a simple conversation  
linked to a catastrophic event with a tragic personal  
dimension for Ms. E.  
R. v. Malik and Bagri  
Page 499  
9.Although the defence was unable to effectively cross-  
examine Ms. E with respect to her statements, it did have  
the opportunity to cross-examine her with respect to  
other relevant issues such as her memory, emotional  
state, rumors in the community, and feelings toward the  
Bagri family. She was never cross-examined regarding  
motive to lie.  
10.The absence of an oath is not critical in the present  
circumstances since the essence of Mr. Bagri’s challenge  
to Ms. E’s reliability is mistaken recollection, not  
fabrication or concoction.  
11.Although Mr. Bagri challenges Ms. E’s statements as  
having been susceptible to tainting, the core  
conversation was something within the scope of her own  
personal knowledge. Its nature was also such that it  
left no room for hearsay, rumor or gossip. Contrary to  
Mr. Bagri’s assertion that it would not have taken a  
dramatic shift to change Ms. E’s recollections of an  
innocuous event into one of sinister dimensions, the  
Crown says the opposite is true; it would have taken a  
tremendous shift to confuse a request to borrow a vehicle  
with a belief that a family friend had committed an  
international act of terrorism involving the deaths of  
331 people. That Ms. E’s statements implicate a friend,  
someone she would otherwise be inclined to protect, is a  
factor enhancing their reliability.  
12.The Crown also notes that the information contained in  
Mr. Laurie’s reports that is based on rumour is  
identified as such. For example, they duly note when  
Ms. E informed him of information she had heard from  
Mrs. Bagri or her family, thus demonstrating that she  
clearly distinguished between what she personally knew  
and what she had heard from others.  
Furthermore, Mr. Laurie did not taint the statements by  
supplying Ms. E with information. Not only did he  
testify that he asked her no leading questions, but his  
role was to gather, not impart, intelligence. There  
would have been no purpose in his supplying her with  
information only to have her repeat it back to him. In  
any event, the core conversation was first revealed  
during the early stages of the first interview, thus  
minimizing any danger that Mr. Laurie could have  
intentionally or unintentionally influenced Ms. E.  
R. v. Malik and Bagri  
Page 500  
13.Mr. Bagri’s submission that Ms. E confused Mr. Bagri’s  
visit on June 9, 1985 with that on the eve of the Air  
India/Narita explosions is untenable for the following  
reasons:  
a.CSIS was conducting surveillance on Mr. Parmar, not  
Mr. Bagri. There is therefore no independent record  
of how many times Mr. Bagri visited Ms. E.  
b.It has been admitted that Mr. Bagri flew from  
Kamloops to Vancouver en route to Toronto the  
evening of June 7, 1985. Mr. Bagri spent the  
weekend with Mr. Parmar in Toronto and then returned  
with him on Sunday June 9, 1985. Mrs. Parmar picked  
them both up at the airport and then dropped off Mr.  
Bagri at Ms. E’s residence at 11:06 p.m. The Crown  
submits that these facts render it highly unlikely  
that Mr. Bagri would have requested to borrow Ms.  
E’s vehicle to go to the airport from where he had  
just come.  
c.CSIS was following Mr. Parmar, yet observed  
Mr. Bagri enter Ms. E’s residence, suggesting that  
it took little time for him to enter. In contrast,  
Ms. E testified that on the evening of Mr. Bagri’s  
visit he knocked on her door for a considerable time  
before she answered.  
b.  
[1118]  
Accuracy of the Record  
It is the position of the Crown that the Court’s  
assessment of the accuracy of Mr. Laurie’s reports at the  
threshold admissibility stage should apply with equal force to  
the assessment of ultimate reliability. The following factors  
support the reliability of those records:  
1.Although Mr. Laurie did not take notes during his  
interviews of Ms. E, he recorded particularly important  
information immediately following the interviews before  
proceeding to his office. His reports were prepared the  
same afternoons as the interviews, therefore at a time  
when the conversations were sufficiently fresh to ensure  
they accurately reflected what he had been told.  
R. v. Malik and Bagri  
Page 501  
2.The simplicity of the core conversation is such that it  
is highly unlikely that Mr. Laurie would have confused  
the details in the short period of time between the  
interviews and the drafting of his reports. Further, the  
core conversation is consistently described in the three  
reports, which the Crown submits further supports their  
accuracy.  
3.Since Mr. Laurie was gathering intelligence rather than  
evidence, he converted the information into his own  
language in his reports. Nevertheless, he testified that  
they accurately reflected what Mr. E told him of the core  
conversation, a conversation that comprised only a few  
simple words.  
4.The Crown takes issue with the defence suggestion that  
Mr. Laurie tainted the reports by attributing to Ms. E  
intelligence that he knew. While there is one example of  
an error on his part (in a later report he recorded Ms. E  
as stating that Mr. Bagri told her that he needed to  
borrow her car to go to the airport with Mr. Parmar and  
an unidentified male), Mr. Laurie admitted his error when  
questioned on the stand. Given his willingness to  
acknowledge when he inserted his own words, it is  
entirely speculative to suggest that he did so  
inadvertently in other instances. Mr. Laurie was also  
careful to record in his reports when information was  
only a rumor; for example, he wrote of “popular rumors”  
that Mr. Parmar was an Indian Government agent.  
5.The consistency of the reports with each other and with  
Ms. E’s December, 1996 videotaped interview with Cpl Best  
is persuasive evidence that the reports were accurate.  
6.With respect to the destruction of the tapes and  
transcripts, the Crown submits that there is simply no  
factual basis upon which to believe that they would have  
demonstrated a material inconsistency with the evidence  
that has been presented. Mr. Laurie did not tape the  
first interview, that of September 10, 1987, and the  
details of the core conversation did not change in  
subsequent interviews.  
7.Mr. Laurie’s demeanour showed him to be an intelligent,  
careful and conscientious witness. Although he referred  
to his reports for accuracy, he testified from memory  
regarding the details surrounding the statements such as  
time of day and Ms. E’s demeanour.  
R. v. Malik and Bagri  
c. Confirmatory Evidence  
[1119] The Crown submits that there is evidence  
Page 502  
confirmatory of Ms. E’s statements to Mr. Laurie, including  
the following:  
1.Ms. E’s relationship with Mr. Bagri was such that he  
trusted her and would have requested to borrow her  
vehicle. He likely believed her home to be safe from  
interception or surveillance, and therefore would not  
have felt the need to lie to her.  
CSIS surveillance revealing late night visits to Ms. E’s  
residence by Mr. Bagri on June 9 and July 14, 1985  
independently establishes that the relationship between  
Ms. E and Mr. Bagri was such that he had no hesitation in  
visiting her residence alone late at night. Ms. E told  
Mr. Laurie that there were two more visits by Mr. Bagri  
to her residence after the Air India explosion, and the  
July 14 surveillance confirms this. Admissions of fact  
with respect to long distance telephone contact indicate  
regular contact between them, as does a telephone call  
intercepted on Mr. Parmar’s line on April 11, 1985.  
2.Mr. C’s evidence that Mr. Bagri admitted involvement in  
the Air India/Narita explosions confirms Ms. E’s  
evidence.  
3.A number of details in Mr. Laurie’s reports have been  
independently confirmed, including the following:  
a.Mr. Parmar’s residential telephone line was in fact  
being intercepted by CSIS at the time Mr. Bagri  
asserted as much to Ms. E;  
b.Mr. Bagri told Ms. E that he had gone to New York  
and had met Mr. C, which has been confirmed by  
extensive evidence at trial; and  
c.Mr. Parrish testified that the FBI’s New York office  
was investigating a conspiracy to assassinate Rajiv  
Gandhi in May, 1985, consistent with what Mr. Bagri  
told Ms. E.  
4.Mr. Bagri’s vehicle was in Vancouver on June 21, 1985.  
R. v. Malik and Bagri  
Page 503  
5.The evidence has established that two suitcases  
containing bombs were put on two separate aircraft and  
that the individuals checking in the suitcases did not  
board the flights. These facts assist in establishing  
the fundamental reliability of Ms. E’s account of the  
core conversation.  
6.As demonstrated by the MSG Speech and Panthak Conference  
Speech, Mr. Bagri had the motive to commit the offences  
with which he is charged.  
2.  
[1120]  
Position of Mr. Bagri  
It is the theory of the defence that Mr. Bagri’s  
late night visit to Ms. E in June, 1985 occurred not on the  
eve of the Air India/Narita explosions, but earlier on June 9,  
1985. This date is consistent with both Ms. E’s viva voce  
testimony and the body of trial evidence. It is only through  
Ms. E’s out-of-court statements to Mr. Laurie that the Crown’s  
theory regarding the date of this visit and the content of the  
conversation that ensued is advanced. However, Mr. Bagri  
submits, these statements can be accorded little or no weight  
in the circumstances of the case.  
a.  
[1121]  
June, 1985 and December, 1985 Visits  
In terms of ascertaining the date of Mr. Bagri’s  
late night visit to Ms. E in June, 1985, the following factors  
emerge from the totality of the evidence:  
1.Throughout her various statements and in her viva voce  
testimony, Ms. E has consistently spoken of only one late  
night visit by Mr. Bagri in June, 1985. She has also  
R. v. Malik and Bagri  
Page 504  
consistently maintained that she believed the authorities  
knew the date of the visit because of CSIS surveillance.  
2.CSIS surveillance reveals Mr. Bagri being dropped off at  
Ms. E’s residence on June 9, 1985 at 11:06 p.m. This  
late hour is consistent with Ms. E’s evidence that the  
visit occurred late at night after she had already  
retired for the evening.  
3.When questioned by the RCMP in November, 1985 about the  
identity of her late night visitor on June 9, Ms. E  
confirmed it was Mr. Bagri.  
[1122]  
Mr. Bagri submits that it is evident from the  
foregoing that the one visit in June, 1985 occurred on June 9.  
Mr. Bagri may have requested to borrow Ms. E’s vehicle that  
evening, which would not have been sinister or unusual since  
he had frequently done so in the past. It has been admitted  
as fact that on that date Mr. Bagri arrived in Vancouver from  
Toronto, and was picked up from Vancouver Airport and dropped  
off at Ms. E’s residence that evening by the Parmars. It is  
therefore possible that he may have referred to both the  
airport and Toronto in speaking with Ms. E that evening.  
[1123]  
With respect to the only other visit in 1985 that  
Ms. E recalled, Mr. Bagri submits that it likely occurred on  
December 4, 1985:  
• Ms. E testified that she had moved back to her primary  
residence on [ ] Street at the time of the visit, which  
places it after mid-August, 1985;  
• The evidence of Detective Sergeant Weston has Mr. Bagri  
at Heathrow Airport on December 3, 1985 on his return to  
Canada;  
R. v. Malik and Bagri  
Page 505  
• An RCMP Continuation Report dated December 16, 1985,  
indicates that Ms. E informed the RCMP that Mr. Bagri had  
visited her on a Wednesday evening a couple of weeks  
prior. December 4, 1985 was a Wednesday. That  
Continuation Report also notes that Mr. Bagri had told  
Ms. E that he had just returned from England.  
[1124]  
The defence maintains that on this December 4 visit,  
Mr. Bagri gave Ms. E medication for migraines but did not  
speak of secrets or say anything of a threatening nature.  
Mr. Bagri notes that there is no reference in the Continuation  
Report to threats and Ms. E also did not testify to that  
effect, specifically denying that she ever received threats  
from Mr. Bagri. The only references to threats are contained  
in Mr. Laurie’s reports.  
b.  
[1125]  
Ms. E’s Statements Entitled to Little Weight  
Mr. Bagri submits that Ms. E’s hearsay statements  
are entitled to little weight as a result of the cumulative  
effect of the following five factors:  
1.  
2.  
Ms. E did not adopt her prior statements, which  
requires that her evidence be subject to a Vetrovec  
caution;  
If the Court finds that Ms. E lied under oath in her  
trial testimony, her evidence will also have to be  
subject to a Binet warning (R. v. Binet, [1954]  
S.C.R. 52);  
3.  
4.  
There exists no reliable record of the words Ms. E  
actually spoke or the context of her statements;  
The evidence of Ms. E’s prior and subsequent  
inconsistent statements, together with independent  
R. v. Malik and Bagri  
Page 506  
confirmatory evidence, detracts from the weight  
which can be accorded her evidence; and  
5.  
The ultimate reliability of the statements is  
undermined by the fact that Ms. E was not under oath  
at the time, the defence did not have a meaningful  
opportunity to cross-examine her about her prior  
statements, the statements were not made in close  
proximity to the relevant events, she was promised  
confidentiality when she made the statements, and  
her statements were potentially tainted through  
contact with third parties.  
c.  
[1126]  
Ultimate Reliability of Ms. E’s Statements  
Mr. Bagri submits that the threshold reliability  
criteria earlier applied to Mr. Laurie’s reports in the  
admissibility ruling remain relevant to the assessment of  
their ultimate reliability, though to a different standard and  
upon a broader body of evidence. They weigh strongly against  
a finding of ultimate reliability in the circumstances of the  
present case.  
i.  
Oath  
[1127]  
Ms. E’s statements were not made under oath. That  
an oath increases the evidentiary value of a statement is a  
theme running through the common law, and courts have  
consistently held that it is inherently unsafe to convict on  
unsworn evidence.  
ii. Promise of Confidentiality  
[1128]  
Ms. E’s statements were made under a promise of  
confidentiality. While a promise of confidentiality may have  
R. v. Malik and Bagri  
Page 507  
the positive effect of eliciting a statement from a hesitant  
or reluctant witness, that witness’s belief that her statement  
will not be subject to scrutiny increases the potential for  
inaccuracy or dishonesty. Where, as here, the truth of the  
content of the statement is at issue, the negative effect  
becomes paramount.  
[1129]  
Mr. Bagri submits that Ms. E has a tendency to be  
either dishonest or simply confused and unreliable, as  
demonstrated by the following examples:  
1.The Court concluded in its earlier rulings that Ms. E’s  
lack of recollection was feigned, a highly damaging  
conclusion with respect to her trustworthiness as a  
witness;  
2.Ms. E’s assertion that she ceased contact with the Bagris  
following the Air India/Narita explosions is contradicted  
by long distance toll records that establish considerable  
telephone contact between the Bagri residence or Mr.  
Bagri’s workplace and Ms. E from July to the end of  
September, 1985.  
3.Ms. E’s statement to Mr. Laurie that Mr. Bagri used her  
telephone to discuss violent acts with Mr. Parmar is  
contradicted by the preserved CSIS intercepts of  
Mr. Parmar’s telephone. These intercepts also contradict  
her assertion that she was fearful of Mr. Bagri.  
4.Ms. E’s statement that Mr. Bagri had visited her on  
Halloween evening in 1985 is demonstrably untrue, as  
Mr. Bagri’s work records and the evidence of Detective  
Sergeant Weston of Scotland Yard place him out of the  
country at that time.  
[1130]  
Mr. Bagri submits that evidence provided under the  
promise of confidentiality by a fragile witness with this  
R. v. Malik and Bagri  
Page 508  
record of either dishonesty or unreliability simply cannot  
form the basis of a conviction.  
iii. Record of the Statements  
[1131]  
Mr. Laurie’s notes, any tapes of his interviews of  
Ms. E and the transcripts prepared therefrom were destroyed,  
leaving his reports as the sole record of Ms. E’s statements.  
Mr. Laurie relied very heavily upon them to refresh his memory  
when testifying about what Ms. E had told him. These reports,  
however, are replete with problems.  
[1132]  
The fact that Mr. Laurie was a CSIS agent gathering  
intelligence, not a police officer gathering evidence, had  
attendant consequences for how he conducted and reported his  
interviews with Ms. E. He admitted, for example, that he had  
told Ms. E that she could share rumor and gossip with him  
since the source of the information was less important than  
the intelligence itself. He did not take contemporaneous  
notes during the interviews, and then prepared his reports  
using his own language, not hers. The reports are far from  
complete in terms of capturing his interactions with Ms. E due  
to the simple fact that they were drafted for the purpose of  
transmitting the intelligence she had provided. They do not  
include, for example, what Mr. Laurie said to Ms. E to channel  
and orient her thinking so that she would speak about matters  
R. v. Malik and Bagri  
Page 509  
in which he was interested. Mr. Bagri submits, for example,  
that there must have more of a preamble at the first interview  
than Mr. Laurie recalls to have prompted such a torrent of  
information from Ms. E. Consequently, there is no record of  
what was actually said or of the context of the questions  
being asked, both important indicators of ultimate  
reliability.  
[1133]  
The reliability problems inherent in the reports are  
exacerbated by the fact that they contain two separate layers  
of hearsay statement evidence with an absence of a proper  
record at either level: Mr. Laurie reporting on what Ms. E  
told him, who was relating what Mr. Bagri had allegedly told  
her two years earlier. Mr. Bagri submits that the reports  
have tenuous probative value on this basis alone.  
iv. Cross-examination  
[1134]  
Ms. E’s inability to recall her earlier statements,  
whether legitimate or feigned, impeded effective cross-  
examination. Particularly since there is no accurate record  
of what was said, this factor seriously undermines the  
ultimate reliability of the reports.  
v.  
The contemporaneity of a statement is a traditional  
indicator of reliability, completely absent in the present  
Contemporaneity  
[1135]  
R. v. Malik and Bagri  
Page 510  
case. Ms. E’s statements were taken over two years after the  
alleged conversation with Mr. Bagri.  
vi. Tainting  
[1136]  
A number of circumstances in the present case  
cumulatively support the inference that any inculpatory  
statements Ms. E provided to Mr. Laurie may have been tainted  
to an unknown degree by information Ms. E obtained from others  
and by her interactions with Mr. Laurie. The likelihood of  
tainting is heightened by the absence of effective cross-  
examination, contemporaneity and an accurate record, all of  
which would have aided in either preventing or exposing such  
contamination.  
[1137]  
Mr. Bagri submits that the following factors were in  
play by the autumn of 1987 when Ms. E first spoke with  
Mr. Laurie:  
1.There had been extensive publicity regarding the Air  
India/Narita explosions. A series of media reports were  
introduced at trial which Mr. Bagri submits are  
representative of what had been published in the  
immediate aftermath of the explosions. They report the  
following basic facts:  
• two men checked in baggage on two separate flights but  
did not board the planes;  
• these unaccompanied bags either contained or likely  
contained bombs; and  
R. v. Malik and Bagri  
Page 511  
• the Air India flight originated in Toronto but the M.  
Singh bag was checked in in Vancouver.  
Mr. Bagri submits that it is evident that all of the key  
pieces of Mr. Bagri’s alleged conversation with Ms. E  
were within the public domain very soon after the  
explosions.  
2.Ms. E regarded herself as a victim of the Air India  
disaster, having lost family members on the flight, and  
was extremely emotional about the matter. Mr. Laurie  
deliberately played on these emotions and successfully  
induced a highly emotional state in her during the  
interviews.  
3.Through her workplace and attendance at temple, Ms. E was  
aware of gossip and rumour within the Sikh community that  
the Babbar Khalsa, in particular Mr. Parmar and Mr.  
Bagri, might have been involved in the Air India/Narita  
explosions.  
4.Ms. E admitted feeling a sense of guilt over her past  
association with Mr. Bagri, someone rumored to have been  
involved in the explosions.  
5.Prior to her first meeting with Mr. Laurie, Ms. E had  
interpreted comments from Mr. Bagri’s wife following the  
Air India/Narita explosions as a possible indication of  
his involvement.  
[1138]  
Mr. Bagri submits that any tainting need not have  
been the product of a deliberate attempt to influence Ms. E’s  
recollections, and may have instead resulted from subconscious  
influences and ex post facto interpretation of earlier events.  
For example, it is possible that when Mr. Bagri visited Ms. E  
late in the evening on June 9, 1985, he may have spent the  
night and asked to borrow her vehicle to return to the airport  
the following morning. If Ms. E’s recollection of this visit  
was coloured by the rumors she heard over the following two  
R. v. Malik and Bagri  
Page 512  
years regarding the possible involvement of the Babbar Khalsa  
and Mr. Bagri in the Air India/Narita explosions, it would  
have required only minor changes and additions for the entire  
tenor of Mr. Bagri’s June, 1985 visit to shift from a neutral  
incident to a sinister occurrence.  
[1139]  
Mr. Bagri submits that the fact that Mr. Laurie’s  
reports constitute the sole record of Ms. E’s statements  
introduces a further potential for tainting. Mr. Laurie, he  
suggests, may have tainted the reports by inserting his own  
theories and information, and attributed them to Ms. E. For  
example, in a report generated following a January, 1989  
interview with Ms. E, Mr. Laurie wrote with respect to the  
core conversation:  
This account was exactly the same as reported  
previously with Bagri telling her that he needed to  
borrow her car to go to the Airport with Bhai Sahib  
(Talwinder Singh Parmar) and an unidentified male.  
[1140]  
Mr. Laurie admitted that he could not recall whether  
he included the reference to Mr. Parmar because Ms. E had  
mentioned it or because he himself believed Mr. Parmar to have  
been one of the unidentified males. Mr. Bagri submits that  
this circumstance raises the issue of whether Mr. Laurie, even  
unintentionally, tainted his reports by blending elements of  
R. v. Malik and Bagri  
Page 513  
his theories regarding the Air India/Narita explosions into  
his summaries of Ms. E’s recollections.  
vii. Trial Evidence  
[1141]  
Mr. Bagri submits that in addition to these six  
factors, the body of trial evidence casts doubt on the truth  
of Ms. E’s statements. Some such inconsistencies include the  
following:  
• As noted earlier, long distance toll records contradict  
Ms. E’s claims that she told Mr. Bagri he was no longer  
welcome at her home following the Air India/Narita  
explosions.  
• There is no confirmatory evidence with respect to  
either the content of Mr. Bagri’s alleged conversation  
with Ms. E or her assertion to Mr. Laurie that it  
occurred on June 21, 1985. Evidence suggesting it was  
not June 21, 1985 includes the following:  
- Mr. Bagri’s work records, which show Mr. Bagri  
working a full week up to and including June 21,  
1985; and  
- The testimony of Jagdish Johal, together with the  
Crown admission that it was not Mr. Bagri who  
arrived at Mr. Parmar’s residence on the evening  
of June 21, 1985.  
d.  
[1142]  
R. v. Czibulka  
Subsequent to the release of the admissibility  
ruling, the Ontario Court of Appeal issued R. v. Czibulka,  
[2004] O.J. No. 3723, wherein it held that it was improper to  
assume that the contents of a hearsay statement were true when  
determining its threshold reliability. Mr. Bagri invited the  
R. v. Malik and Bagri  
Page 514  
Court to revisit that ruling in light of this new authority on  
an issue not previously argued. He submitted that this  
Court’s conclusion that certain of Ms. E’s statements  
satisfied threshold reliability was based in part on  
assertions of fact that assumed the truth of those very  
statements, in particular:  
• Mr. Bagri had made certain statements to Ms. E about  
borrowing her vehicle and implicitly stated that he was  
about to become involved in unlawful activity;  
• Ms. E was afraid of Mr. Bagri because he had threatened  
her;  
• Ms. E connected in her own mind Mr. Bagri’s threat about  
her revealing her secret to his June, 1985 visit;  
• Ms. E linked what Mr. Bagri had said during that visit to  
the Air India explosion when it occurred; and  
• Ms. E would not provide information about Mr. Bagri’s  
visit unless she was assured that it would not be  
provided to the police.  
[1143]  
Mr. Bagri submits that even if the admissibility  
ruling is not revisited, the reasoning in Czibulka applies  
with equal force to the assessment of ultimate reliability,  
and that the Court must take care to avoid engaging in  
circular reasoning by assuming the truth of Ms. E’s statements  
as its initial premise.  
[1144]  
The Crown responds that there is no need to  
reconsider the admissibility ruling in light of Czibulka since  
R. v. Malik and Bagri  
Page 515  
that decision is readily distinguishable on its facts and is  
also inconsistent with Supreme Court of Canada hearsay  
jurisprudence.  
D.  
MS. JOHAL  
1. Position of the Crown  
[1145] The Crown submits that considering the totality of  
the evidence, Ms. Johal’s evidence should be rejected and the  
Court should find that Mr. Bagri traveled in his own vehicle  
from Kamloops to Vancouver on June 21, 1985.  
[1146]  
The Crown takes the position that notwithstanding  
the admission of fact that the individual who exited  
Mr. Bagri’s vehicle and entered the Parmar residence that  
evening was not Mr. Bagri, those words are not constraining  
and do not foreclose consideration of other evidence on the  
issue. The admission was drafted to reflect the anticipated  
evidence of one Crown witness, a CSIS agent, in relation to  
her observations of that date. That the driver was not  
Mr. Bagri is not an indisputable fact before the Court and,  
moreover, must be considered in the context of all of the  
evidence, including the following:  
• the absence of any factual underpinnings for the CSIS  
agent’s opinion that the driver was not Mr. Bagri;  
R. v. Malik and Bagri  
Page 516  
• Ms. E’s statement evidence that Mr. Bagri came to borrow  
her vehicle the evening before the Air India/Narita  
explosions;  
• the strong physical resemblance between Mr. Narwal and  
Mr. Bagri; and  
• other mis-identifications contained in the CSIS  
surveillance reports tendered at trial.  
[1147]  
The Crown further submits that notwithstanding the  
words in the admission that the unidentified East Indian male  
“has not been subsequently identified”, Mr. Bagri has not felt  
bound by those words and has tendered evidence with respect to  
the identity of that individual, thus similarly abandoning the  
admission.  
[1148]  
The Crown challenges Ms. Johal’s evidence,  
submitting that it is unlikely that Mr. Bagri would have  
deprived his family (comprising his wife and five children) of  
all transportation so that Ms. Johal could go shopping in  
Vancouver, particularly when the Narwal household had a number  
of vehicles at its disposal at the time. It is also unlikely  
that Mr. Narwal would have driven Ms. Johal to Vancouver  
simply to go shopping in light of her evidence that she had  
flown to Vancouver alone for her baptism, a very significant  
occasion.  
R. v. Malik and Bagri  
Page 517  
[1149] The Crown submits that the late disclosure of the  
I.C.B.C. documents has occasioned Mr. Bagri no prejudice and  
that no remedy is therefore warranted. It submits that the  
documents themselves would not have assisted the defence in  
its re-examination of Ms. Johal, and that they have now been  
admitted at trial in any event.  
2.  
[1150]  
Position of Mr. Bagri  
The Crown’s position, advanced for the first time in  
its closing submissions, that the individual exiting the  
vehicle at Mr. Parmar’s residence on June 21, 1985 was or  
could have been Mr. Bagri directly contradicts an admission of  
fact conclusively establishing that was not the case. It is  
simply not open to the Crown to resile from its admission, one  
that was carefully negotiated, precisely worded, and did not  
contain the limiting or qualifying language regarding the  
reliability of the surveillance upon which it was based as was  
included in other surveillance admissions filed at trial. The  
foundational information for this admission also remains  
unchanged.  
[1151]  
As set out in s. 655 of the Criminal Code, an  
admission fact is made “for the purpose of dispensing with  
proof thereof”, thus entitling the parties to treat the facts  
contained therein as conclusively proven. To permit the Crown  
R. v. Malik and Bagri  
Page 518  
to now resile from the admission after the close of the case  
would cause irreparable prejudice to Mr. Bagri who relied on  
it significantly in determining how to meet the Crown’s case  
and what defence evidence to adduce. It would also compromise  
the trial process since the Court would be left without the  
proper basis upon which to decide the now disputed facts since  
neither party called the necessary evidence on point.  
[1152]  
Mr. Bagri describes as untenable the Crown  
submission that the defence abandoned the admission by seeking  
to identify the driver as Mr. Narwal. Firstly, the admission  
was sought and framed by the Crown so as to dispense with the  
proof of certain facts that the Crown asserted. It cannot  
therefore be reasonably read as binding the defence from  
subsequently establishing the identity of the unknown  
individual who was not Mr. Bagri. Further, the defence was  
under no obligation in law to advise the Crown that it might  
call evidence to identify the individual. Finally, even if it  
could be argued that Mr. Bagri had abandoned the admission,  
which he disputes, he clearly did not abandon that portion of  
it asserting that the unidentified individual was not  
Mr. Bagri.  
[1153]  
With respect to Ms. Johal, Mr. Bagri submits that  
she was a forthright witness with straightforward evidence and  
R. v. Malik and Bagri  
Page 519  
no apparent bias. She testified about what had been to her a  
memorable trip to purchase a wedding dress and that ended with  
news of the Air India/Narita explosions. Some of the  
photographs entered through Ms. Johal further support the  
identification of that individual exiting Mr. Bagri’s vehicle  
at the Parmar residence on June 21, 1985 as Mr. Narwal.  
E.  
Evidence of Association  
1.  
[1154]  
Position of the Crown  
A conspiracy is by its very nature a secretive and  
clandestine endeavour. Conspirators know to restrict their  
public exposure and communications, as a result of which there  
can be little expectation that their involvement will  
inevitably be seen or heard. Nevertheless, the Crown submits  
that there is a solid body of association evidence  
establishing that Mr. Bagri had the opportunity to conspire  
with his co-conspirators, which, together with evidence of  
motive, is a powerful factor supporting his guilt.  
[1155]  
The Crown draws its evidence of association from the  
following sources:  
•
•
•
Long distance telephone contact;  
CSIS surveillance observations;  
Preserved CSIS intercepts (CSIS had been  
intercepting communications on Mr. Parmar’s  
R. v. Malik and Bagri  
Page 520  
residential line from March 27 to September 19,  
1985. But for 54 tapes [the “preserved CSIS  
intercepts”], the remaining communications were  
erased by CSIS under circumstances conceded by the  
Crown to constitute unacceptable negligence. This  
resulted in a declaration that Mr. Bagri’s s. 7  
rights under the Charter had been breached: R. v.  
Malik, Bagri and Reyat, 2002 BCSC 864); and  
•
Airline ticket bookings.  
a.  
Nature of Mr. Bagri’s Relationship with Mr. Parmar  
[1156]  
The Crown submits that the focus of Mr. Parmar’s  
life was the planning and execution of political/religious  
events, a direct corollary of which was his involvement in the  
Air India/Narita conspiracy. Mr. Bagri, a fellow co-founder  
of the Babbar Khalsa and Mr. Parmar’s “right hand man”, was an  
intimate associate and integral part of his inner circle.  
While the defence seeks to portray Mr. Bagri as a peaceful  
preacher who associated with Mr. Parmar solely within the  
realm of innocent political and religious activities, his  
inflammatory and violent speeches at MSG and the Panthak  
Conference severely undermine that portrayal. So, too, does  
the fact that the Babbar Khalsa was not a peaceful  
organization, but one that had as its objective the overthrow  
of the Government of India.  
R. v. Malik and Bagri  
b. Telephone Contact  
Page 521  
[1157]  
The Crown submits that long distance telephone tolls  
and preserved CSIS intercepts establish that Mr. Bagri and  
Mr. Parmar were in contact on a regular basis. There is  
evidence, for example, of approximately 50 telephone calls  
between the Parmar residence and telephone numbers associated  
with Mr. Bagri between December 4, 1984 and December 9, 1985.  
Ms. E’s statements to Mr. Laurie indicate there was additional  
contact between Mr. Parmar and Mr. Bagri on her residential  
telephone. Further, there were three calls between Mr. Bagri  
and Mr. Parmar amongst the preserved CSIS intercepts.  
[1158]  
Notwithstanding this contact, the Crown submits that  
the evidence demonstrates a clear pattern of telephone  
interception consciousness on the part of both Mr. Bagri and  
Mr. Parmar. Mr. Laurie, for example, testified that Ms. E  
informed him of Mr. Bagri’s belief that Babbar Khalsa  
telephones were being monitored and that he sought to have  
secure conversations by using hers. CSIS surveillance  
observed Mr. Parmar making telephone calls from payphones in  
his area on a number of occasions. The content of the  
conversations captured in preserved CSIS intercepts also  
suggests telephone cautiousness. Accordingly, the Crown  
submits, the Court should be cautious in drawing any inference  
R. v. Malik and Bagri  
Page 522  
that Mr. Bagri would have had more telephone contact with  
Mr. Parmar had he been involved in the conspiracy. It should  
also be cautious in drawing any inferences from the content of  
the telephone calls involving Mr. Parmar for the same reason.  
c.  
[1159]  
Personal Contact  
The Crown submits that there is evidence before the  
Court in the form of admissions of fact of personal contact  
between Mr. Parmar and Mr. Bagri, including travel together.  
This would have provided them ample opportunity to speak  
without being overheard. The Crown identifies approximately  
11 personal meetings between Mr. Bagri and Mr. Parmar from  
April to October, 1985, including a trip together to Toronto  
from June 7 to 9, 1985. Another visit identified by the Crown  
occurred on June 21 when surveillance captured Mr. Bagri’s  
vehicle arriving at the Parmar residence. As discussed  
elsewhere in this judgment, it is the Crown’s submission that  
notwithstanding the admission of fact that the driver of the  
vehicle was not Mr. Bagri, the driver’s identity remains a  
disputed fact at trial.  
[1160]  
The Crown submits that there is also a substantial  
body of evidence establishing considerable personal contact  
between Mr. Bagri and Mr. Parmar in 1984, including the  
following:  
R. v. Malik and Bagri  
Page 523  
•
•
Mr. Bagri is captured in the videotape of  
Mr. Parmar’s arrival at the airport and subsequent  
speech at the Hamilton Temple on July 21, 1984;  
Mr. Bagri traveled with Mr. Parmar to Toronto and  
onto New York on July 26, 1984 to attend the WSO  
convention at Madison Square Gardens. Mr. Bagri  
spoke on Mr. Parmar’s behalf at the convention since  
Mr. Parmar had been barred from entering the United  
States due to immigration issues; and  
•
Tejinder Singh testified that between July and  
October 1984, Mr. Bagri and Mr. Parmar visited the  
Hamilton Temple five to seven times, always  
together.  
[1161]  
The Crown emphasizes that Mr. Bagri was not under  
surveillance so it is impossible to have any accurate sense of  
his movements around the time of the bombings. What is  
important, however, is the fact that he did have contact with  
Mr. Parmar. From that, it is reasonable to infer opportunity  
to conspire.  
d.  
[1162]  
Evidence of Association with the Other Conspirators  
There is no evidence of long distance telephone  
contact between Mr. Bagri and Mr. Reyat. There is, however,  
evidence they were known to each other through Mr. Laurie’s  
testimony that Ms. E informed him on September 24, 1987, that  
she had met Mr. Reyat at Mr. Bagri’s home in Kamloops.  
[1163]  
There is evidence of two long distance contacts  
between Mr. Bagri and Mr. Malik. There is also Mr. Laurie’s  
evidence that Ms. E informed him on September 24, 1987 that  
R. v. Malik and Bagri  
Page 524  
Mr. Bagri spoke to Mr. Malik on her telephone, and that she  
recalled one occasion when she had been left with the  
impression Mr. Malik was providing Mr. Bagri with $50,000.  
[1164]  
The Crown disagrees with the defence identification  
of March to June, 1985 as the critical time period for the  
evolution of the conspiracy. Not only does the Indictment  
particularize a one year period during which the conspiracy  
was formulated, but a conspiracy of this nature and scope  
would have required considerable planning and preparation.  
2.  
Position of Mr. Bagri  
[1165] Like the Crown, Mr. Bagri relies on the preserved CSIS  
intercepts, CSIS surveillance reports, long distance toll  
admissions and airline ticket booking admissions in his  
submissions regarding association. He additionally relies on  
his work records and evidence regarding Mr. Reyat’s bomb-  
making activities. Mr. Bagri wove together these bodies of  
evidence and presented the Court with a very detailed  
chronological summary of what he describes as the unfolding of  
the conspiracy during the critical time period, March to late  
June, 1985. He submits that what emerge from this analysis  
are patterns of both innocent and conspiratorial activities in  
different measures and at different times involving  
Mr. Parmar. Mr. Bagri is consistently involved in the former,  
R. v. Malik and Bagri  
Page 525  
though even then to only a limited degree, and conspicuously  
absent from the latter.  
[1166]  
Integrated into Mr. Bagri’s summary were also CSIS  
logs and translators’ notes which were not in evidence on the  
trial but had been tendered on the earlier s. 7 voir dire  
regarding the erasure of the CSIS intercept tapes. This  
aspect was relevant solely with respect to Mr. Bagri’s  
submissions regarding appropriate s. 24(1) Charter remedies to  
address the breach of his s. 7 rights.  
a.  
Telephone Contact  
[1167]  
With respect to the evidence of telephone contact  
relied upon by the Crown, Mr. Bagri notes that of the 50 long  
distance calls between December, 1984 and December, 1985, only  
six were within the March – June time period. During the same  
three month period, there were no calls between telephone  
numbers associated with Mr. Bagri and either Mr. Malik or  
Mr. Reyat.  
[1168]  
The three telephone calls between Mr. Parmar and  
Mr. Bagri captured in the preserved CSIS intercepts (on April  
15, 16 and 22) are instructive in revealing the benign content  
of their conversations. During the calls on April 15 and 16,  
for example, Mr. Bagri and Mr. Parmar speak, inter alia, about  
the collection of fundraising cheques, the issuance of press  
R. v. Malik and Bagri  
Page 526  
releases and the hanging of portraits of Mr. Parmar in the  
Babbar Khalsa offices. This is in contrast with Mr. Parmar’s  
conversations with other individuals captured in the preserved  
CSIS intercepts that are either overtly suspicious or  
extremely guarded, and appear related to a conspiracy to harm  
the Indian Government. Examples include the following:  
•
•
Mr. Parmar called Mr. Kaloe on April 10. Mr. Parmar  
asked him “did you receive a phone call from another  
country, from back there?” When Mr. Kaloe replied  
“Cincinnati?”, and Mr. Parmar agreed. Mr. Kaloe  
indicated that he had earlier spoken with this  
individual and that they would speak again.  
During a call on April 11, Mr. Parmar asked Surjan  
Gill to come over to his house without giving an  
explanation. This was the beginning of a pattern of  
Mr. Parmar asking Mr. Gill to come over to his house  
when he had something important to discuss. There  
was a call on Mr. Parmar’s line an hour later  
between Surjan Gill and an Amarjit Pawa in which  
Mr. Gill told Mr. Pawa that Mr. Parmar felt that  
“too much money is being spent on you people but no  
job is being done.” Mr. Gill agreed that “no job is  
being accomplished” but felt hurt by Mr. Parmar’s  
apparent criticism and frustration with their  
efforts. There were also six calls that afternoon  
involving Mr. Parmar and Mr. Gill’s attempts to  
arrange the taking of a secret passport photograph  
of Mr. Parmar at his home.  
•
•
There was a call between Mr. Parmar and Surjan Gill  
on April 16 wherein the latter told Mr. Parmar that  
he had phoned a Jang Singh who was “more than  
ready”.  
There were two calls between Mr. Parmar and Hardial  
Johal on April 22. They discussed the deteriorating  
situation in the Punjab and the need for “our own  
force” of armed and “experienced people”. During  
the second call Mr. Parmar told Mr. Johal that  
R. v. Malik and Bagri  
Page 527  
Surjan Gill was soon leaving on a trip and that it  
was urgent for him to go.  
•
On April 24, there was a call between Mr. Parmar and  
Mr. Kaloe in Hamilton. Mr. Kaloe raised the subject  
of “the people from Cincinnati”. There was  
discussion about what appears to have been a meeting  
involving the people in Cincinnati, a reference to  
requiring a license to get “the thing” (which Mr.  
Bagri submits may be a reference to explosives), and  
mention of a Sukhcharan Singh.  
•
On May 6, there was a call to Mr. Parmar from Jang  
Singh in Munich. Jang Singh told Mr. Parmar that he  
was awaiting Mr. Parmar’s direction and was ready to  
serve the cause, adding “this score should be  
settled”. Mr. Parmar told him that Surjan Gill was  
traveling to Germany and they could discuss the  
matter. He then said “then do whatever you guys  
decide”. Later that evening, Mr. Parmar called  
Mr. Reyat and told him to meet Surjan Gill at the  
ferry the following day and to come alone. He told  
Mr. Reyat only that Mr. Gill needed to speak to him  
about something.  
•
On May 7, Mr. Parmar called Mr. Reyat to inform him  
of the arrival time of the ferry. He then called  
Surjan Gill and asked “have you tied the net”, to  
which Surjan Gill replied “of course”. Surjan Gill  
attended at Mr. Parmar’s residence and from there  
spoke with Mr. Reyat’s father about delivering a  
“bow and arrow” from Mr. Reyat to his father.  
Mr. Parmar called Mr. Pawa concerning Surjan Gill’s  
ticket to Germany. Surjan Gill later called  
Mr. Parmar from his residence and indicated he was  
coming over. Mr. Bagri submits that this call  
strongly suggests that as a result of their morning  
meeting Mr. Parmar and Surjan Gill decided to travel  
together to Vancouver Island to meet Mr. Reyat. A  
subsequent call during which Mr. Parmar’s son  
informed Gurmit Gill that Mr. Parmar and Surjan Gill  
had gone to Nanaimo confirms the reliability of this  
inference.  
Mr. Reyat’s long distance telephone records show  
three outgoing calls that evening: to Mr. Reyat’s  
father, to Surjan Gill’s residence and to Sukhcharan  
R. v. Malik and Bagri  
Page 528  
Singh in Mason, Ohio. Mr. Bagri submits that the  
logical inference from these calls is that  
Mr. Parmar and Surjan Gill were at the Reyat  
residence and that they called Sukhcharan Singh  
after the first “test blast”. Mr. Reyat had agreed  
in testimony that the first test blast had taken  
place approximately one month before the second test  
blast on June 4.  
[1169]  
Although there are no further preserved Parmar  
intercepts after this date, these are sufficient to give a  
flavour of Mr. Parmar’s interactions with others.  
[1170]  
The defence also points to intercepts that it  
submits appear to indicate a high level of mistrust amongst  
other Babbar Khalsa members with respect to Mr. Bagri over an  
alleged affair. It submits that this renders even less likely  
his involvement in the conspiracy being planned.  
b.  
[1171]  
Personal Contact  
Of the 11 instances of personal contact between  
Mr. Bagri and Mr. Parmar identified by the Crown, Mr. Bagri  
submits that 10 were either post-conspiracy or without proper  
evidentiary foundation. The only surveillance observation of  
Mr. Bagri and Mr. Parmar together during the material period  
was on June 9, 1985 when they returned from Toronto together  
and were picked up at the airport. Mr. Bagri was then dropped  
off at Ms. E’s residence. Again, there are no surveillance  
observations of Mr. Bagri together with either Mr. Malik or  
Mr. Reyat.  
R. v. Malik and Bagri  
Page 529  
[1172] The surveillance reports tendered by the defence  
reveal one further potential contact between Mr. Bagri and  
Mr. Parmar in Kamloops on May 15, 1985. More importantly,  
they reveal considerable suspicious contact between Mr. Parmar  
and others, which must again be contrasted with the very  
limited contact between Mr. Parmar and Mr. Bagri that emerges  
from the entire body of surveillance evidence.  
[1173]  
The defence submits that the 1984 association  
evidence between Mr. Parmar and Mr. Bagri relied upon the  
Crown is consistent with the defence theory that Mr. Bagri’s  
fundamental utility to Mr. Parmar and the Babbar Khalsa was as  
a fiery public speaker called upon to attend public events to  
energize crowds through his blended religious/political  
speeches. To characterize Mr. Parmar as monolithically evil  
is to ignore the obvious fact that, as clearly emerges from  
the evidence, he also engaged in the typical activities  
expected of a religious or political leader. It is solely in  
this capacity that he and Mr. Bagri associated.  
XII. CONCLUSIONS REGARDING THE CASE AGAINST MR. BAGRI  
A.  
Motive  
While mindful that the MSG Speech contained rhetoric  
[1174]  
intended to meet the expectations of a Sikh audience furious  
with the Government of India, when considered with the other  
R. v. Malik and Bagri  
Page 530  
evidence of motive proffered by the Crown, I conclude that  
Mr. Bagri harboured a motive for revenge so powerful as to  
countenance participation in offences as horrific as those  
alleged in the Indictment. This motivation derived primarily  
from the attack on the Golden Temple by the Indian Government  
combined with a desire to effect an independent Khalistan. Of  
such significance and so powerfully held, the motive had not  
ameliorated by the date of the alleged offences.  
[1175]  
However, this motivation was hardly unique to  
Mr. Bagri or to a small identifiable group that included him.  
Countless numbers of Sikhs throughout the world shared these  
same views and motivations. Even if our field of vision is  
confined to fundamentalist Sikhs in British Columbia, the  
numbers are simply unknown.  
B.  
Mr. C and Related Witnesses  
1.  
[1176]  
Credibility of Mr. C  
Mr. C, I conclude, is a person driven by self-  
interest, not conscience or altruism as he testified. The  
extent to which his actions have been motivated and coloured  
by that self-interest was evident from his testimony and  
raises serious, if not overwhelming, concerns with respect to  
his credibility as a witness.  
R. v. Malik and Bagri  
Page 531  
[1177] As outlined fully in defence submissions, Mr. C’s  
immigration history from the time he entered the United States  
illegally in 1983 until as recently as January, 2004 reveals  
his willingness to engage in deception and lies, even under  
penalty of perjury, whenever he believed it would advance his  
self-interest. His attempts to rationalize his falsehoods on  
the basis that he had simply sought to better himself and his  
family, not harm others, do nothing to mitigate the obvious  
fact that he considered the truth secondary when it conflicted  
with his self-interest.  
[1178]  
Mr. C’s involvement in criminal activities, while  
itself relevant to an assessment of his credibility, is also  
significant for its role in motivating him to further his  
self-interest by becoming an FBI informant. While noting his  
charges and acquittals in India, it is his involvement in a  
serious matter in the United States that raises concern. Six  
members of the Deshmesh Regiment, of which Mr. C was [an  
executive member], travelled to New Orleans in May, 1985 in an  
unsuccessful attempt to assassinate a visiting Indian  
dignitary. Four were arrested and two escaped, one of whom  
spoke to Mr. C from New Orleans requesting airline tickets to  
facilitate their return to New York. After initial denials,  
Mr. C acknowledged in cross-examination that he had been aware  
R. v. Malik and Bagri  
Page 532  
of what had transpired in New Orleans at the time of that  
request for assistance. In providing the funds that were used  
to procure the tickets for the fugitives’ escape, Mr. C was an  
accessory after the fact to a very serious crime. His  
strained attempt to mitigate his role as an accessory by  
testifying that he had not been aware whether the two had been  
charged or were wanted by the police was unconvincing.  
[1179]  
Mr. C’s involvement in this incident was one of the  
primary motivators in his becoming an informant for the FBI.  
Despite his assertions that he had been guided by the desire  
to protect innocent Sikhs and the broader Sikh cause by  
focussing the FBI on hard-liners within the Deshmesh Regiment,  
I am not persuaded that his motivations were so altruistic.  
Rather, I find them to be as follows. Firstly, he feared  
deportation as an illegal immigrant, especially after the  
heightened awareness caused by the New Orleans incident.  
Secondly, he feared arrest in connection with his role in that  
incident, having aided the escape of two fugitives therefrom.  
A further motive to continue in that role developed after he  
had already begun informing to the FBI. Because of newspaper  
reports to the effect that members of the Deshmesh Regiment,  
of which he was an executive member, were claiming  
responsibility for the Air India disaster, he had reason to  
R. v. Malik and Bagri  
Page 533  
fear being implicated in that incident, as he eventually  
acknowledged.  
[1180]  
Even though Mr. C began informing anonymously,  
revealing his role as an FBI informant in the event he was  
subsequently detained or arrested could have assisted him in  
avoiding or diminishing the consequences. That he revealed  
his identity as the informer, “John”, at the time of the  
FBI/INS raid on his residence is consistent with this finding.  
According to the evidence of both Mr. C and Mr. Parrish, it  
was not long thereafter that he first disclosed the gas  
station conversation, the most incriminating of the statements  
he attributes to Mr. Bagri.  
[1181]  
Mr. C was the recipient of considerable immigration  
assistance from the FBI. He turned to Mr. Parrish for  
assistance upon the refusal of his first asylum application  
only months after he had become an informant, and continued to  
turn to the FBI whenever he faced immigration difficulties.  
As Mr. Parrish testified, the FBI had an interest in keeping  
Mr. C in the country so that he could continue to be a source  
of information regarding Sikh terrorist matters. It therefore  
interceded with the INS on his behalf in furtherance of these  
interests. Mr. C’s testimony that it was never his  
understanding or assumption that the FBI would assist him with  
R. v. Malik and Bagri  
Page 534  
his immigration matters so long as he continued to supply  
information is contrary to both common sense and his constant  
reliance on them whenever he faced immigration difficulties.  
To accept his evidence in this regard would be to accept that  
he believed the FBI was assisting him for purely altruistic  
reasons, unlikely for even the most naïve of individuals, let  
alone Mr. C.  
[1182]  
The greater the perceived value of Mr. C’s  
information to the FBI, the greater the protection and benefit  
afforded by his informant status. The temptation then to  
increase that value with false information would have been  
significant. It is for this reason that the information he  
supplied the FBI is inherently suspect and must therefore be  
approached with caution. I note as an example, Mr. Parrish’s  
evidence that Mr. C had initially informed him during an early  
meeting that it had been Joginder Singh who had obtained the  
money to purchase the airline tickets for the New Orleans  
fugitives. In light of Mr. C’s testimony that he himself had  
provided these funds, this was an obvious attempt to deflect  
responsibility away from himself.  
[1183]  
Mr. C’s self-interest also emerged as a significant  
factor in his bargaining with respect to benefits for his  
testimony. He was paid $300,000 USD for his evidence in these  
R. v. Malik and Bagri  
Page 535  
proceedings. Knowing that he could not be compelled to  
testify in Canada, he raised the issue of how much he would be  
paid to testify during one of his earliest meetings with the  
RCMP. He was advised that the RCMP could only provide money  
to enable him to provide for the protection of himself and his  
family. Mr. C told his FBI handler that an appropriate  
payment would be $500,000 USD. Subsequent negotiations led to  
an agreement reduced to writing for the payment to him of  
$300,000 USD, after he had received independent legal advice.  
It was a term of this agreement that he would be required to  
return that money in the event he did not testify.  
[1184]  
Any pretence that this payment was to provide for  
his security vanished long ago. Mr. C has continued to move  
freely and openly in both the United States and the ancestral  
village in India that he shares with Mr. Bagri. His conduct  
during the payment negotiations also revealed no attempt on  
his part to correlate any payment to an assessment of his own  
security needs. For example, when in March, 2000 the RCMP  
suggested that they pay off his mortgage so that he would be  
able to move immediately should the need arise, he asked what  
they would pay someone without a mortgage. The RCMP’s  
suggestion that $250,000 would be appropriate was met with his  
response, “that means you don’t want me”. While he did go on  
R. v. Malik and Bagri  
Page 536  
to indicate that he would be willing to accept that sum if he  
did not have to reveal himself as a source and there was a  
publication ban with respect to his evidence, his counter-  
offer of $300,000 to permit him to be mobile if the need arose  
is more reflective of a desire to maximize the quantum of his  
benefits.  
[1185]  
Thus, while the payment to Mr. C of this very  
substantial sum for his evidence is alone a factor warranting  
caution with respect to his evidence, his undisguised  
bargaining during the negotiations surrounding it is of even  
greater significance in raising credibility and reliability  
concerns.  
[1186]  
Any doubts about Mr. C’s agenda were exposed by his  
renewed efforts in December, 2003, shortly before he was  
scheduled to testify, to obtain an additional $200,000 USD to  
bring the total he received up to his original demand. He  
falsely claimed that the RCMP had promised him that additional  
sum, testifying that his demand had been based on a  
misunderstanding that he would be paid this balance  
“unofficially”. Mr. C faxed the RCMP from India on the very  
eve of his testimony, again requesting an additional $200,000  
USD. His evidence at trial that this had simply been a tactic  
to buy time so that he could resolve a family matter in India  
R. v. Malik and Bagri  
Page 537  
before returning to testify is an obvious falsehood. Rather,  
it was nothing more than a transparent attempt to maximize the  
benefits he could obtain in exchange for his testimony. Mr.  
C’s entreaties for immigration assistance at the same time he  
was demanding the additional payment firmly belie any notion  
that he was motivated other than by self-interest.  
[1187]  
As a witness, Mr. C’s testimony was rife with  
examples of evasiveness and internal contradictions, followed  
by implausible explanations. For example, he testified in  
direct that his roommates had left a day or so after the  
FBI/INS raid on their apartment. When it was put to him in  
cross-examination that this was inconsistent with other parts  
of his testimony, he testified that they had actually left  
several weeks after the raid. When the further inconsistency  
that this change in evidence created was drawn to his  
attention, he attempted to rationalize it by testifying that a  
few days could mean ten or even fifteen days. His evidence  
also shifted significantly on other issues such as his  
disposition on violence in support of an independent  
Khalistan, his knowledge of the existence and purpose of  
mercenary training for members of the Deshmesh Regiment, and  
the purpose of his firearms training in New York.  
R. v. Malik and Bagri  
Page 538  
[1188] While not an exhaustive account of the factors  
raising concerns with respect to Mr. C’s credibility, these  
alone warrant an extremely high level of caution in  
approaching his evidence. With that in mind, I now consider  
his evidence with respect to the inculpatory statements he  
alleges were made by Mr. Bagri.  
2.  
a.  
Mr. Bagri’s Alleged Statements  
Post-MSG Conference Statement  
[1189]  
Mr. C testified that following the MSG convention at  
Madison Square Gardens in July, 1984, he had a brief private  
conversation with Mr. Bagri in the bedroom of his home. Mr.  
Bagri said to him, “tell to your guys, ‘Don’t go to jail for a  
small thing. We have a stuff that can blow like a – like a  
block’”.  
[1190]  
The first time that Mr. C ever mentioned this  
conversation with Mr. Bagri was in February, 1997 during an  
interview with the RCMP. This also happened to be the same  
meeting at which he first raised the issue of how much he  
would be paid to testify, though he recounted his conversation  
with Mr. Bagri at an earlier stage of that interview. Despite  
having provided Mr. Parrish with information about Mr. Bagri  
over the four years of their informant/handler relationship,  
Mr. C had never mentioned this particular conversation to him.  
R. v. Malik and Bagri  
Page 539  
He also did not mention it to the FBI in July, 1992 during  
what appears to have been a fairly detailed statement about  
the post-MSG convention meeting. His only mention of a  
private meeting on that occasion had Mr. Bagri meeting with  
other Deshmesh Regiment members in the bedroom. Mr. C also  
told the FBI agents that Mr. Bagri told Mr. Birk as he was  
leaving that if Mr. Birk needed anything, Mr. Bagri could get  
it for him.  
[1191]  
Mr. C’s explanation for not mentioning his meeting  
with Mr. Bagri was that he had not been specifically asked  
about it. I find this unconvincing. He had long been an  
informant to the FBI by 1992, and a conversation with  
Mr. Bagri of the nature he alleges would have been an obvious  
topic to raise, particularly given its parallels to the  
private meeting involving Mr. Bagri that he did mention. In  
these circumstances and absent any corroborative evidence, I  
do not accept Mr. C’s evidence that such a conversation took  
place.  
b.  
[1192]  
Gas Station Statement  
Mr. Bagri’s alleged admission to Mr. C, “Why the  
fuck they bother you? We did this”, is the core of Mr. C’s  
evidence against him. His account, however, is fraught with  
R. v. Malik and Bagri  
Page 540  
internal and external inconsistencies, and is not  
substantiated by other evidence.  
[1193]  
Mr. C’s evasiveness and obvious reluctance to be  
pinned down on dates left very few solid reference points in  
his testimony from which to ascertain when his meeting with  
Mr. Bagri occurred. Although he testified repeatedly that it  
had taken place “a couple of weeks” after the Air India  
explosion, his contention that “a couple of weeks” simply  
meant more than one and could mean up to twenty weeks robbed  
that evidence of any value. What can be gleaned from his  
evidence with respect to the possible timing of such a  
meeting, however, is the following:  
1.The meeting took place after the FBI/INS raid on his  
apartment, which the evidence of Mr. Parrish placed on or  
about July 27, 1985;  
2.He received the telephone call from Avtar Singh upon  
returning home from work, and he worked weekdays at a  
restaurant;  
3.He related the conversation to Mr. Parrish within two or  
three days of its occurrence.  
[1194]  
Business records regarding Avtar Singh’s gas  
station, while not offering conclusive proof of the date on  
which he took possession, indicate that the assignment  
agreement was executed on September 11, 1985, and thus  
eliminate the likelihood of any meeting having occurred at  
R. v. Malik and Bagri  
Page 541  
that location prior to that date. Mr. Parrish testified that  
he had a debriefing with Mr. C on September 25, 1985, during  
which he had related information about Mr. Bagri admitting  
responsibility for the Air India/Narita explosions. Assuming  
the reliability of Mr. Parrish’s evidence, a meeting at Avtar  
Singh’s gas station would therefore have had to have occurred  
on a weekday after September 11 and shortly before September  
25, 1985.  
[1195]  
Business records from Mr. Bagri’s place of  
employment, the reliability of which I accept, reveal that he  
worked every weekday in September. Thus, while his attendance  
in the New York area on a weekend may have been possible, a  
weekday visit is highly unlikely. The Crown submits that  
since Mr. C was never specifically questioned by the defence  
whether he ever worked weekends, it is possible that he did  
or, alternatively, that he may have been mistaken whether he  
had worked the day he received the telephone call from Avtar  
Singh. However, that possibility is mere speculation. The  
only evidence is that he worked weekdays, not that he usually  
did so or even that he did so with some rare exceptions. No  
evidence has been presented of Mr. Bagri having undertaken  
such a cross-border trip during this timeframe.  
R. v. Malik and Bagri  
Page 542  
[1196] The possibility of a meeting occurring between  
September 11 and 25, 1985, is further undermined by Mr. C’s  
contradictory evidence that he revealed the conversation to  
his roommates upon returning home from the gas station but  
that his roommates had dispersed shortly after the FBI/INS  
raid in late July. This contradiction is difficult to  
resolve, notwithstanding his attempts to rationalize it by  
equating a few days with a number of weeks when challenged.  
[1197]  
After Mr. C completed his testimony, the defence  
filed a motion to take commission evidence from Balbir Singh,  
one of his roommates at the [ ] Avenue apartment in 1985. It  
is revealing that when contacted by Insp. Nash on July 11,  
2004, Mr. C told him that he recalled testifying that all of  
his roommates had been present when he related his  
conversation with Mr. Bagri but now believed that Balbir Singh  
had likely been at work at the time. According to Mr.  
Kalotia, Mr. C had contacted him in mid-July 2004 in an effort  
to obtain the telephone number of “the Balbir who used to live  
with us”. This sequence of events carries the suspicious  
appearance of his seeking to change his story once aware of  
potential contradictions, and is yet another factor  
undermining his credibility.  
R. v. Malik and Bagri  
Page 543  
[1198] The evidence of Crown witness, Mr. Parrish, does not  
substantiate Mr. C’s account of his conversation with Mr.  
Bagri in any material way. Both parties made detailed  
submissions with respect to the reliability of Mr. Parrish’s  
account of his September 25, 1985 debriefing of Mr. C.  
Ultimately, however, it is not necessary to consider these in  
any detail since his evidence, even if accepted without  
challenge, serves only to eliminate the possibility of  
concoction by Mr. C after that date.  
[1199]  
Mr. Parrish testified that he met with Mr. C on  
September 25, 1985, and that Mr. C told him of a conversation  
he had had with Mr. Bagri. Mr. C had expressed his concerns  
to Mr. Bagri about the New York Sikh community having received  
the blame for the Air India/Narita explosions, and how this  
exposure had resulted in pressure from the FBI and immigration  
authorities. Mr. Bagri replied that he did not know why they  
were receiving this pressure since his group was responsible  
for the explosions.  
[1200]  
Mr. Parrish’s only record of this information was a  
telex to FBI headquarters in which he referred to his source  
having heard from several members of the Babbar Khalsa that  
the Babbar Khalsa in Vancouver was responsible for the Air  
India/Narita explosions. He testified that he had drafted the  
R. v. Malik and Bagri  
Page 544  
telex in this oblique manner to protect the identity of his  
source, and that Mr. C had, in fact, informed him that his  
meeting with Mr. Bagri had been in person and that other  
Babbar Khalsa members had been present in the vicinity.  
According to Mr. Parrish, Mr. C had not disclosed the details  
of that meeting, such as it having occurred at Avtar Singh’s  
gas station at the end of September 1985 and the names of some  
of those present, until July 1989. He had considered this  
curious and had even wondered whether Mr. C was telling him  
about a different meeting. Mr. C’s explanation to Mr. Parrish  
for the delay in revealing these details was that he thought  
he had already informed him of this information. Thus, even  
on Mr. Parrish’s evidence, Mr. C did not reveal the critical  
details necessary to situate his conversation with Mr. Bagri  
until four years after he initially recounted it.  
[1201]  
Mr. Bagri challenges Mr. Parrish’s reliability as a  
witness solely with respect to his recollection of the  
unfolding of Mr. C’s account of his conversation with Mr.  
Bagri, in particular, the degree of information Mr. C had  
provided in September 1985. In doing so, Mr. Bagri points to  
the unlikely manner in which Mr. Parrish, clearly a  
conscientious and diligent agent, recorded and communicated  
this apparent revelation of responsibility for one of the  
R. v. Malik and Bagri  
Page 545  
worst acts of aviation terrorism to have ever occurred. He  
made no accurate record of the conversation, did not share it  
with his superiors, and did not engage in any follow-up to  
assess its reliability. The testimony of former agent  
Mr. Cloonan revealed the extent to which Mr. Parrish’s  
handling of the information departed from standard FBI  
protocol. While the Crown attacked Mr. Cloonan’s integrity  
both in cross-examination and submissions, I found him to be  
an entirely credible witness and the Crown’s attacks  
unwarranted.  
[1202]  
It is not necessary for me to reconcile  
Mr. Parrish’s certainty regarding the level of information Mr.  
C had provided on September 25, 1985, against his inability to  
adequately explain the unlikely manner in which he dealt with  
that information since, as stated, the only effect of his  
evidence is to eliminate concoction by Mr. C after that date.  
Further, even on Mr. Parrish’s evidence, Mr. C did not reveal  
the details of his conversation with Mr. Bagri until four  
years later. This raises sufficient concerns about the  
evolution of Mr. C’s account to undermine even that limited  
purpose.  
[1203]  
Although the credibility of the witnesses called by  
the defence to challenge Mr. C’s evidence was suspect, this  
R. v. Malik and Bagri  
Page 546  
does nothing to substantiate Mr. C’s evidence itself. Balbir  
Singh, for example, testified that Mr. C had never requested  
to borrow his vehicle to attend at a gas station in New Jersey  
and had never told the assembled roommates about having heard  
a confession to the Air India explosion. His obvious lies  
under oath while testifying in these proceedings entitle his  
evidence to no credibility.  
[1204]  
Mr. Kalotia testified that he had never driven Mr. C  
to a gas station in New Jersey and that Mr. C had never told  
him and the other roommates about hearing a confession to the  
Air India explosion. The Crown’s cross-examination of Mr.  
Kalotia revealed that he was likely not the Gurmit Singh who  
was Mr. C’s roommate at the [ ] Avenue apartment in 1985.  
[1205]  
Kamal Jit was a family friend of Mr. C. He related  
a conversation in which he testified that Mr. C stated that  
Mr. Bagri did not say, “We did that”, but rather, words to the  
effect of “Just blame us and tell them we did it”.  
[1206]  
Mr. Jit was caught in what the defence admits to be  
an obvious falsehood under oath. In cross-examination, he  
denied having met with counsel for Mr. Bagri shortly before  
giving evidence on his behalf. Unaware that counsel for  
Mr. Bagri had quite properly acknowledged that they had,  
Mr. Jit steadfastly maintained what he knew to be false  
R. v. Malik and Bagri  
Page 547  
evidence under oath. He continued to profess no knowledge of  
such a meeting even when informed that Mr. Bagri’s counsel had  
acknowledged as much. If prepared to lie under oath about  
such an innocuous subject because of an unwarranted fear that  
it might somehow denigrate from his credibility, the only  
conclusion available is that he would lie under oath about  
anything. His evidence carries no weight on any issue in this  
trial.  
[1207]  
For the foregoing reasons, despite the unreliability  
of the defence evidence, I do not accept as credible Mr. C’s  
evidence describing his gas station conversation with Mr.  
Bagri.  
c.  
[1208]  
The Other Statements  
Mr. C attributes a number of other inculpatory  
statements to Mr. Bagri:  
• At the Stockton conference in 1987, Mr. Bagri indicated  
that he did not trust certain members of the Babbar  
Khalsa because they might speak to the police about the  
Air India bombing. He also stated that they had expected  
the explosion one hour earlier;  
• During a conversation at the Richmond Hill Temple in  
1987, Mr. Bagri, in response to a question from Mr. C  
regarding the making of bombs, indicated that he did not  
wish to discuss the matter because “walls have ears.  
Only two of us knows; a third person will know, for this  
we can go in jail”.  
R. v. Malik and Bagri  
Page 548  
• During another conversation at the Richmond Hill Temple,  
this time following the arrest of Mr. Reyat in 1989, Mr.  
Bagri said “Don’t worry; he fucking don’t know nothing.  
Only two of us knows; nobody else”.  
[1209]  
Having already concluded that Mr. C’s motive has  
always been one of self-interest, I simply note Mr. Parrish’s  
evidence that Mr. C had contacted him from England in July,  
1987, prior to these last three statements, seeking his  
assistance in gaining re-entry into the United States. He  
agreed that Mr. C would have known that the FBI was  
facilitating his return so that he could resume his role as an  
informant with respect to Sikh terrorist matters.  
[1210]  
As was canvassed in the review of Mr. C’s evidence  
regarding these statements, his recollection of their details  
was poor when relating them on various occasions to the RCMP.  
In a statement to the RCMP in March, 1997, for example, he  
indicated that he recalled a conversation in which Mr. Bagri  
had mentioned they were expecting the crash one hour earlier,  
but that he did not remember when. (He testified that this  
conversation had occurred at Stockton.) A few months later in  
July, he told the RCMP that the conversation regarding the  
extradition of Mr. Reyat had taken place at Stockton. This  
was clearly inaccurate since Mr. Reyat was not extradited to  
Canada until 1989, a couple of years after the 1987 Stockton  
R. v. Malik and Bagri  
Page 549  
conference. The two Richmond Hill Temple statements that Mr.  
C attributes to Mr. Bagri are somewhat similar in content, and  
certainly similar in the circumstances in which they were  
made; i.e., following congregation outside the Temple with  
people milling about. This may account for Mr. C’s tendency  
to omit the “walls have ears” conversation when relating his  
various conversations with Mr. Bagri to the RCMP.  
[1211]  
In the face of the inconsistencies in his previous  
statements, Mr. C repeatedly asserted at trial that he had not  
been prepared to testify at the time of these various  
statements and that therefore, while their content was  
unforgettable, he had yet to recollect his memories with  
respect to the details such as timing. Regardless whether, as  
the defence alleges, the statements are tainted by the memory  
refreshing exercises, it is clear that they are not firmly  
embedded in Mr. C’s memory to any sufficient degree that his  
evidence can be safely relied upon.  
[1212]  
While surveillance photographs of which he was not  
aware confirm that Mr. C met with Mr. Bagri at the Stockton  
conference in accordance with his evidence, this alone goes  
little distance in providing confirmatory evidence for his  
account.  
R. v. Malik and Bagri  
[1213] For the foregoing reasons, I do not accept as  
reliable Mr. C’s evidence regarding these three statements.  
Page 550  
3.  
[1214]  
Summary of Conclusions Regarding Mr. C  
The numerous significant concerns with regard to the  
credibility of Mr. C are such that his evidence describing his  
various conversations with Mr. Bagri, even without a Vetrovec  
caution, is not accepted. When that caution is applied, there  
is simply no confirmatory evidence to consider, let alone  
sufficient confirmatory evidence to restore faith in the  
relevant aspects of his evidence.  
C.  
Ms. E  
Since Ms. E’s viva voce evidence was not inculpatory  
[1215]  
of Mr. Bagri, the Crown seeks to rely on her hearsay  
statements to Mr. Laurie, earlier ruled admissible as  
necessary and reliable to a threshold level. The assessment  
of ultimate reliability, however, is more rigorous and must  
take into consideration all the evidence at trial, unlike  
threshold reliability which considers only the circumstances  
surrounding the making of the statements. As well, factors  
affecting reliability such as the absence of an oath and the  
inability to conduct an effective cross-examination must be  
re-examined in light of the more stringent standard. Because  
this evidence forms the core of the case against Mr. Bagri,  
R. v. Malik and Bagri  
Page 551  
its ultimate reliability must be proved beyond a reasonable  
doubt: R. v. McKenzie, supra; R. v. Kyllo, supra; R. v.  
Harvey, supra.  
1.  
[1216]  
Re-visiting Threshold Admissibility  
Mr. Bagri invites the Court to re-consider its  
earlier ruling in light of R. v. Czibulka, supra, on an issue  
not previously raised. Mr. Bagri submits that this decision  
clarifies that a court cannot assume that the contents of a  
hearsay statement are true when considering its threshold  
reliability. He further submits that this Court engaged in  
that forbidden reasoning by assuming the truthfulness of those  
portions of Ms. E’s statements relating threats to her by Mr.  
Bagri and then relying on that assumption to support a finding  
of threshold reliability.  
a.  
[1217]  
R. v. Czibulka  
One of the issues in Czibulka was the admissibility  
of a letter by the deceased victim to a relative some three  
months before her death. Among other matters, that letter  
reported a serious assault at the hands of the accused a day  
earlier. Two to three weeks prior to receiving that letter,  
the relative had received a telephone call from the deceased  
asking that she be allowed to reside with him. He had  
declined her request.  
R. v. Malik and Bagri  
Page 552  
[1218] The trial judge had admitted the letter after  
finding a number of indicia of reliability, including the  
absence of any danger of mistaken observation or recollection  
since the deceased had been describing events of the previous  
day. The Court of Appeal held that the trial judge had erred  
in relying upon the contents of the letter to so conclude.  
The Court, while acknowledging that the contents of a hearsay  
statement could be used for some purposes to determine its  
admissibility, restricted that usage to instances such as  
where the statement was against interest or where, as in R. v.  
Khan (1990) 59 C.C.C. (3d) 92 (S.C.C.), the statements were of  
sexual acts likely beyond the knowledge of a young child.  
[1219]  
The Court also found that the trial judge had erred  
in concluding that there had been no motive to fabricate  
simply because there had been no evidence of such a motive.  
It stated that there must be an examination of all the  
surrounding circumstances, including the nature of the  
declarant’s relationship with both the person about whom the  
statement was made and the person hearing the statement. In  
that case, there was nothing special in the relationship  
between the deceased and her relative from which to conclude  
that she had no motive to lie about her relationship with the  
accused. Pointing to evidence that the deceased had sought  
R. v. Malik and Bagri  
Page 553  
the consent of the relative to reside with him, the Court  
found there was positive evidence suggestive of a motive to  
fabricate, that being a reasonable possibility of her hoping  
to obtain sympathy and a change of mind.  
[1220]  
The Court found other instances of reliance on the  
truthfulness of the contents of the statement to bolster  
reliability.  
b.  
[1221]  
Conclusion  
I decline to vary the finding of admissibility with  
respect to Ms. E’s statements to Mr. Laurie. The  
circumstances here are significantly different from those in  
Czibulka. The circumstances in which Ms. E made the  
statements to Mr. Laurie were thoroughly canvassed in  
evidence, as was the nature of the relationship between the  
two. While her feigned memory loss precluded a full and  
effective cross-examination, Ms. E was a witness and there was  
some opportunity for cross-examination. We also have some  
evidence of the nature of her relationship with Mr. Bagri,  
though perhaps not a complete picture. Nothing in that  
evidence gives rise to reasoned speculation that she may have  
had a motive to fabricate.  
[1222]  
The issue at the threshold admissibility stage is  
whether the nature of the statement and the circumstances in  
R. v. Malik and Bagri  
Page 554  
which it was made sufficiently demonstrate that there existed  
no reasonable possibility of mistake or fabrication.  
Extrinsic evidence enhancing or denigrating from the  
statement’s “truth” is not admissible at this stage. Truth is  
a matter of ultimate reliability to be considered at the end  
of the trial.  
[1223]  
At the threshold level, the court engages in  
reasoned speculation with respect to the possibilities of  
mistake and motive to lie. In addition to an examination of  
the circumstances surrounding the making of the statement and  
the nature of the relationship between the declarant and the  
persons to whom and about whom the statement was made, there  
must also be an examination of the nature and content of the  
statement itself, which examination does not equate to an  
assumption of its truth.  
[1224]  
In R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.), the  
declarant made three phone calls to her mother. Reasoned  
speculation by the Court led to the admission of the first two  
and the rejection of the third. If Czibulka is taken to the  
level urged upon me by Mr. Bagri, it would follow that Smith  
was wrongly decided because the Court “assumed the truth” of  
the statement that the accused had abandoned her and that she  
wished a ride home as a result. There was no such conclusion,  
R. v. Malik and Bagri  
Page 555  
merely an examination of the nature of the statement and the  
circumstances in which it was made to find it proven on  
balance that it was reliable to a threshold level.  
[1225]  
In the present case, when examining the nature of  
Ms. E’s statements and all the surrounding circumstances,  
speculation does not reveal a reasonable possibility of  
mistake or fabrication at this threshold level. There was  
also no assumption that her statements regarding threats from  
Mr. Bagri were factual. Rather, they were treated as simply  
her stated belief in that regard and considered along with all  
the other circumstances. I therefore respectfully decline to  
reverse the existing ruling finding this evidence admissible.  
2.  
[1226]  
Ultimate Reliability of Ms. E’s Statements  
By the time of her second interview with Mr. Laurie,  
Ms. E was certain in her mind that the late night visit by Mr.  
Bagri had occurred the evening before the Air India explosion.  
In her evidence at trial, however, she generally associated  
that event with CSIS surveillance, which placed the visit on  
June 9, 1985. CSIS had observed a vehicle containing  
Mr. Parmar drop off Mr. Bagri (a person then unknown to them)  
at Ms. E’s residence at 11:06 that evening. When later  
questioned by the RCMP regarding the identity of that person,  
Ms. E confirmed that it was Mr. Bagri. The only other visit  
R. v. Malik and Bagri  
Page 556  
to her residence by Mr. Bagri that she appeared to recall  
occurred much later that year, likely on December 4, 1985.  
[1227]  
What is troubling is that throughout her evidence  
and prior statements, Ms. E never described a second late  
night visit by Mr. Bagri in June, 1985. It was clear from her  
evidence and her December, 1996 statement to Cpl. Best that  
the arrival of Mr. Bagri at her residence at that time of  
evening had been an unusual event, to the point that she had  
ignored him until she feared other residents might be  
disturbed.  
[1228]  
The Crown’s theory of a second late night visit in  
June was only revealed mid-trial. During Ms. E’s re-  
examination, she allowed such a possibility when it was  
suggested to her.  
[1229]  
This anomaly alone, while not a factor in the  
threshold admissibility ruling, raises a critical issue at  
trial that would properly be the subject of rigorous cross-  
examination to test the reliability of her hearsay statements.  
Mr. Bagri, however, was denied this opportunity because of  
what I find to be a feigned memory loss (see R. v. Malik and  
Bagri, 2004 BCSC 149). As the authorities stress, the  
opportunity to effectively cross-examine a witness can be an  
essential factor in considering the reliability of hearsay  
R. v. Malik and Bagri  
Page 557  
statement evidence: R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257  
(S.C.C.); R. v. U.(F.J.) (1995), 101 C.C.C. (3d) 97 (S.C.C.).  
[1230]  
Of less concern than the inability to conduct an  
effective cross-examination on that issue, but nonetheless  
valid, are a number of other matters raised by the defence,  
namely, the adequacy of the record and the promise of  
confidentiality.  
[1231]  
Mr. Laurie’s notes of his interviews of Ms. E, and  
any audiotapes and transcripts of those interviews, were  
destroyed, leaving his reports as the sole written record of  
Ms. E’s statements. Mr. Laurie relied on them heavily,  
understandably so, in refreshing his memory at trial. While  
prepared with care, they had been drafted for the purpose of  
transmitting the intelligence Ms. E had provided to his  
superiors. They were second hand reports and a less than  
complete record of what had been said. In a later report (not  
admitted for threshold admissibility), for example, Mr. Laurie  
indicated that Ms. E, in relating the late night visit, stated  
that Mr. Bagri had told her that Mr. Parmar was accompanying  
him to the airport. In evidence, he could not recall whether  
she had named Mr. Parmar or whether he had assumed that it was  
him and had inserted his name. Thus, the record cannot be  
described as entirely full and accurate. This impacts  
R. v. Malik and Bagri  
Page 558  
negatively on weight because of the reasonable possibility  
that missing context may have affected meaning: R. v.  
Kimberley and Clancey (2001), 157 C.C.C. (3d) 129 (Ont. C.A.).  
[1232]  
Courts have long held that where a statement follows  
a promise of confidentiality, caution is warranted for fear  
that the person making the statement had no concerns about  
being called to account for the honesty and accuracy of that  
statement: R. v. Tat and Long (1997), 117 C.C.C. (3d) 481  
(Ont. C.A.) While this concern was adequately accounted for  
at the threshold level, the inability to effectively cross-  
examine Ms. E on this issue must be borne in mind in assessing  
the ultimate weight of this evidence.  
[1233]  
Beyond the evidence of the June 9, 1985 late night  
visit by Mr. Bagri to Ms. E’s residence, the broader body of  
trial evidence that may be considered when assessing ultimate  
reliability does little to either confirm or contradict the  
material aspects of Mr. E’s statements to Mr. Laurie. The  
Crown, for example, points to the following as confirming Ms.  
E’s statements:  
• The fact that Mr. Bagri had a friendly relationship with  
Ms. E such that he would have felt comfortable asking to  
borrow her vehicle and openly disclosing his purpose in  
doing so is confirmed by CSIS surveillance showing other  
late night visits on June 9 and July 14, 1985. It is  
further confirmed by the long distance telephone contact  
R. v. Malik and Bagri  
Page 559  
admissions and a telephone conversation between Ms. E and  
Mr. Parmar intercepted on April 11, 1985;  
• Mr. C testified that Mr. Bagri admitted involvement in  
the Air India/Narita explosions;  
• Various details contained in Ms. E’s statements have been  
independently confirmed including CSIS interception of  
Parmar’s telephone line and Mr. Bagri’s reference to  
having met with a Mr. C on a trip to New York;  
• CSIS surveillance indicates that Mr. Bagri’s vehicle was  
observed at Mr. Parmar’s residence on June 21, 1985; and  
• There is evidence Mr. Bagri’s motive and opportunity to  
commit the offences.  
[1234]  
Mr. Bagri relies on the same long distance toll  
admissions and the intercepted Parmar telephone conversation  
as does the Crown, but to opposite effect. He submits that  
they are inconsistent with Ms. E’s assertions that she was  
afraid of and antagonistic towards Mr. Bagri by the time of  
his June, 1985 visit, and that she had told him shortly  
thereafter that he was no longer welcome at her home. His  
work records and the evidence of Ms. Johal suggest that the  
core conversation did not occur on June 21, 1985. Mr. Bagri  
also points to the body of association evidence which he  
submits strongly infers that he had no role in the conspiracy,  
therefore making it unlikely that he came to her house in the  
role of a conspirator on the eve of the Air India/Narita  
explosions.  
R. v. Malik and Bagri  
Page 560  
[1235] The evidence of Mr. C, whom I found not to have been  
a credible witness, is not capable of constituting  
confirmatory evidence. Similarly, the fact that Mr. Bagri’s  
vehicle was in Vancouver on June 21, 1985 coupled with the  
admission of fact that its driver was not Mr. Bagri does not  
assist the Crown. Much of the other evidence pointed to by  
the Crown is not supportive of the material aspects of Ms. E’s  
statements. By the same token, however, the evidence upon  
which Mr. Bagri relies as contradictory does not in and of  
itself raise a reasonable doubt with respect to the core  
conversation having occurred as described by Mr. Laurie.  
[1236]  
Thus, proof of Mr. Bagri’s guilt beyond a reasonable  
doubt rests upon hearsay statements for which there is no  
reliable confirmatory evidence. These statements were  
provided on a confidential basis and not under oath by a  
person who falsely claimed loss of memory when testifying.  
When one adds to this the inability of the defence to conduct  
an effective cross-examination on significant issues  
surrounding those hearsay statements, I conclude that, even  
without turning to the need for a Vetrovec caution, a  
reasonable doubt arises with respect to the ultimate  
reliability of Ms. E’s hearsay statements to Mr. Laurie.  
R. v. Malik and Bagri  
Page 561  
D.  
Ms. Johal  
[1237]  
For the reasons outlined in the defence submissions  
above, the Crown cannot resile from the clear and precise  
admission of fact that the individual exiting Mr. Bagri’s  
vehicle at the Parmar residence on June 21, 1985 was not  
Mr. Bagri. While the identification of that individual,  
beyond finding that it was not Mr. Bagri, is not a significant  
issue, I find Ms. Johal’s evidence to the effect that it was  
her brother, Mr. Narwal, to be credible and I accept it.  
E.  
Summary of Conclusions Regarding Mr. Bagri  
Crimes of the enormity faced here must necessarily  
[1238]  
be accompanied by a motive of similar magnitude. The evidence  
establishes that Mr. Bagri possessed such a motive, stemming  
from outrage at the perceived actions of the Government of  
India towards Sikhs and their religion. That motive, however,  
was shared by countless other Sikhs throughout the world and  
by an unknown number in British Columbia.  
[1239]  
Evidence of association between Mr. Bagri and  
Mr. Parmar also establishes that Mr. Bagri had the opportunity  
to become a member of the conspiracy. They were close  
associates in the Babbar Khalsa and, particularly in 1984,  
regularly travelled and attended meetings together. They also  
travelled to Toronto together from June 7 to 9, 1985. That  
R. v. Malik and Bagri  
Page 562  
being said, evidence of association between Mr. Parmar and  
persons other than Mr. Bagri in the months leading up to the  
Air India/Narita explosions supports an inference that it is  
less likely that Mr. Bagri played a prominent role in that  
conspiracy, if he played any role at all. There is also  
absent in the few intercepted communications between Mr.  
Parmar and Mr. Bagri any of the suspicious and apparently  
conspiratorial communications identified by the defence  
between Mr. Parmar and others. That conclusion is arrived at  
even without considering the CSIS logs and translators’ notes  
which were not evidence on the trial. For an offence of this  
nature, many others in Canada and the United States also had  
an opportunity to participate in the conspiracy. Finding that  
Mr. Bagri had an opportunity to participate does not render it  
any more likely that he in fact did.  
[1240]  
Having laid a foundation of motive and opportunity  
for Mr. Bagri to participate in the conspiracy, the Crown’s  
case succeeds or fails on the credibility and reliability of  
the evidence purporting to relay inculpatory statements made  
by him.  
[1241]  
The only witness who testified with respect to such  
inculpatory remarks by Mr. Bagri was Mr. C. His credibility  
R. v. Malik and Bagri  
Page 563  
has been examined and found wanting to a very significant  
degree.  
[1242]  
Mr. C is an individual driven by self-interest. His  
past conduct demonstrates a willingness to engage in  
deception, even under oath, to advance that self-interest. It  
was also self-interest that motivated him to become an  
informant to the FBI. He hoped that his status as an  
informant would assist him in avoiding deportation as an  
illegal immigrant, arrest in relation to the New Orleans  
incident, and later, implication in the Air India/Narita  
explosions. Mr. C in fact came to enjoy considerable  
assistance from the FBI with regard to his immigration status,  
a benefit that would continue only so long as he was perceived  
as a valuable source of information. That provided a powerful  
incentive to provide such information, whether entirely  
accurate or not. As an example of this, he used his role as  
informant to deflect blame for his actions following the New  
Orleans incident towards another person.  
[1243]  
That self-interest was further demonstrated by his  
continued attempts until the very eve of his testimony to  
extract significant amounts of money in exchange for his  
evidence in this trial, beyond the $300,000 USD he had already  
negotiated.  
R. v. Malik and Bagri  
Page 564  
[1244] In addition, Mr. C’s testimony was replete with  
internal inconsistencies and implausible explanations. An  
examination of each of the instances in which he testified to  
hearing inculpatory remarks by Mr. Bagri, as discussed,  
revealed credibility problems. Thus, even absent a Vetrovec  
warning, I find Mr. C’s evidence simply not credible.  
[1245]  
The Crown is therefore left to seek a conviction  
based on Ms. E’s hearsay statements to Mr. Laurie, her viva  
voce testimony not advancing its case against Mr. Bagri.  
These statements were made on a confidential basis not under  
oath by a person found to have falsely professed loss of  
memory under oath at trial.  
[1246]  
In her statements to Mr. Laurie, Ms. E consistently  
described Mr. Bagri’s visit as having occurred the evening  
before the Air India explosion. In her evidence at trial,  
however, she generally associated that event with CSIS  
surveillance, which placed the visit on June 9, 1985. The  
defence was unable to effectively explore this critical issue  
in cross-examination because of Ms. E’s feigned loss of  
memory.  
[1247]  
Of less, but nonetheless valid, concern is the lack  
of an entirely full record of the statements and the defence’s  
R. v. Malik and Bagri  
Page 565  
inability to cross-examine Ms. E on the accuracy of that  
record.  
[1248]  
A reasonable doubt therefore arises with respect to  
the ultimate reliability of the hearsay statements of Ms. E.  
[1249]  
As noted earlier when dealing with the case against  
Mr. Malik, I am mindful that the reasonable doubt standard  
applies to each essential ingredient of the offence and not to  
individual pieces of evidence. Considering the evidence as a  
whole, I find that the Crown has not proved its case against  
Mr. Bagri 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.  
F.  
Charter Remedies  
[1250]  
This Court found Mr. Bagri’s rights under s. 7 of  
the Charter to have been violated on three separate occasions.  
The first two breaches arose from the destruction by CSIS of  
relevant material, namely, the Parmar telephone intercepts and  
Mr. Laurie’s notes and audiotapes of his interviews of Ms. E.  
The third breach was occasioned by delayed Crown disclosure  
during the defence case. Mr. Bagri was granted certain  
interim remedies and the parties agreed to defer the final  
R. v. Malik and Bagri  
Page 566  
determination of appropriate s. 24 remedies until the  
conclusion of trial so that the prejudice to Mr. Bagri’s fair  
trial interests could be assessed in light of the full  
evidentiary record. The parties made comprehensive closing  
submissions with respect to both the applicable test of  
prejudice and the appropriateness of various remedies to  
address any such prejudice. In light of the outcome of the  
case against Mr. Bagri, however, it is not necessary to  
consider these matters.  
XIII.  
A.  
SUMMARY  
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  
R. v. Malik and Bagri  
Page 567  
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  
R. v. Malik and Bagri  
Page 568  
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  
On June 19, 1985, a male Sikh contacted Canadian  
[1258]  
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  
R. v. Malik and Bagri  
Page 569  
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  
R. v. Malik and Bagri  
Page 570  
collected prior to boarding and the assigned seat remained  
unoccupied throughout the duration of the flight.  
C.  
Forensics  
Following the in-flight disintegration of Air India  
[1262]  
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  
R. v. Malik and Bagri  
Page 571  
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  
R. v. Malik and Bagri  
Page 572  
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  
R. v. Malik and Bagri  
Page 573  
explosive device was located aboard Air India Flight 182 in  
the baggage area containing the M. Singh bag.  
D.  
Historical Context  
Evidence of the political and religious issues  
[1269]  
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  
R. v. Malik and Bagri  
Page 574  
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  
Talwinder Singh Parmar, an un-indicted co-  
[1275]  
conspirator in this case, immigrated to Canada in May, 1970.  
He was considered a priest in the practice of the Sikh  
R. v. Malik and Bagri  
Page 575  
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  
Inderjit Singh Reyat was convicted after trial in  
[1277]  
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  
R. v. Malik and Bagri  
Page 576  
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  
R. v. Malik and Bagri  
Page 577  
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  
R. v. Malik and Bagri  
Page 578  
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  
It is the theory of the Crown that Mr. Malik’s  
[1285]  
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.  
R. v. Malik and Bagri  
1. The Evidence of Mr. B  
[1287] Mr. B’s evidence centred around a conversation he  
Page 579  
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  
R. v. Malik and Bagri  
Page 580  
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  
R. v. Malik and Bagri  
Page 581  
delay in reporting this information, stating that he was “a  
bit scared” and also that his memory may have been a problem.  
2.  
[1293]  
The Evidence of Mr. A  
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  
R. v. Malik and Bagri  
Page 582  
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.  
[1298]  
The Evidence of Ms. D  
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  
R. v. Malik and Bagri  
Page 583  
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  
R. v. Malik and Bagri  
Page 584  
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.  
R. v. Malik and Bagri  
Page 585  
[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;  
R. v. Malik and Bagri  
Page 586  
(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.  
R. v. Malik and Bagri  
Page 587  
[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:  
R. v. Malik and Bagri  
Page 588  
(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.  
[1313]  
Conclusions Regarding Mr. Malik  
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.  
[1314]  
Mr. B and Mr. A  
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.  
3.  
he did not reveal this conversation for some 12  
years after the event;  
he harboured a powerful motive for revenge after  
experiencing years of what he perceived to be  
R. v. Malik and Bagri  
Page 589  
ongoing and significant deception by Mr. Malik  
leading to his financial ruin;  
4.  
5.  
almost immediately after threatening harm to the  
person and reputation of Mr. Malik, he first  
disclosed the conversation to police;  
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.  
8.  
his evidence contained internal inconsistencies; and  
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  
R. v. Malik and Bagri  
Page 590  
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.  
[1318]  
Ms. D  
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  
R. v. Malik and Bagri  
Page 591  
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  
R. v. Malik and Bagri  
Page 592  
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  
R. v. Malik and Bagri  
Page 593  
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  
R. v. Malik and Bagri  
Page 594  
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  
R. v. Malik and Bagri  
Page 595  
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.  
H.  
The Case Against Mr. Bagri  
It is the theory of the Crown that Mr. Bagri’s  
[1324]  
involvement in the alleged offences lay in securing transport  
of the bomb-laden suitcases to the Vancouver Airport. The  
Crown rests its case on three primary bodies of evidence:  
evidence of motive, evidence of association, and evidence of  
incriminatory statements by Mr. Bagri to two individuals, Mr.  
C and Ms. E.  
1.  
[1325]  
Evidence of Motive  
Offences of the enormity alleged here must  
necessarily be accompanied by a motive of similar magnitude.  
The Crown presents what it describes as evidence of such  
motive on the part of Mr. Bagri, namely, religious and  
political zealotry, revealed in various speeches and  
statements by him in 1984. The most significant of these was  
his speech to a convention of the World Sikh Organization at  
Madison Square Gardens in late July, 1984 (the “MSG Speech”).  
In that emotional and fiery speech, frequently tinged with  
R. v. Malik and Bagri  
Page 596  
violent imagery, Mr. Bagri described recent and historical  
Hindu mistreatment of Sikhs, and proposed the creation of an  
independent Sikh state of Khalistan as a solution to that  
problem. The punishment of traitors to the cause was another  
consistent theme. A number of months later in September,  
1984, Mr. Bagri delivered a speech to the Panthak Conference  
in which he raised similar themes. He advocated a Sikh war of  
independence against the Hindu majority in India and called  
for a boycott of Hindu businesses, including Air India.  
[1326]  
While mindful, as submitted by the defence, that the  
MSG Speech contained rhetoric intended to meet the  
expectations of a Sikh audience outraged with the Government  
of India, when considered with the other evidence of motive, I  
conclude that Mr. Bagri harboured a motive for revenge  
sufficiently powerful as to countenance participation in  
offences as horrific as those alleged in the Indictment. This  
motivation stemmed from outrage at the actions of the  
Government of India towards Sikhs and their religion, and a  
concomitant desire to effect an independent Khalistan. That  
motive, however, was hardly unique to Mr. Bagri or to a small  
identifiable group that included him.  
R. v. Malik and Bagri  
2. Evidence of Association  
[1327] Evidence of association between Mr. Bagri and  
Page 597  
Mr. Parmar establishes that Mr. Bagri had the opportunity to  
become a member of the conspiracy alleged. They were close  
associates in the Babbar Khalsa organization and, particularly  
in 1984, regularly travelled and attended meetings together.  
They travelled together to Toronto from June 7 to 9, 1985. As  
well, there is evidence of telephone contact between them.  
[1328]  
However, evidence of association between Mr. Parmar  
and persons other than Mr. Bagri in the months immediately  
preceding the Air India/Narita explosions supports an  
inference that it is less likely that Mr. Bagri played a  
prominent role in that conspiracy, if he played any role at  
all. For a conspiracy of this nature, many others in Canada  
and the United States also had an opportunity to participate.  
Accordingly, the finding that Mr. Bagri had an opportunity to  
participate does not render it any more likely that he in fact  
did.  
3.  
[1329]  
Inculpatory Statements by Mr. Bagri  
Having laid a foundation of motive and opportunity,  
the Crown’s case against Mr. Bagri succeeds or fails on the  
strength of the evidence purporting to relay inculpatory  
R. v. Malik and Bagri  
Page 598  
statements made by him. The Crown’s two primary witnesses  
here are Mr. C and Ms. E.  
a.  
[1330]  
Mr. C  
Mr. C is a Sikh from the same ancestral village in  
the Punjab as Mr. Bagri. He resided in New York during the  
1980s and was an executive member of a Sikh organization  
called the Deshmesh Regiment for some of that period. Mr. C’s  
core evidence related to hearing a number of incriminating  
remarks allegedly made to him by Mr. Bagri. His evidence in  
this regard was as follows:  
a)Mr. C invited Mr. Bagri to his home following the WSO  
Convention at Madison Square Gardens in July 1984 to meet  
some of the members of the Deshmesh Regiment. Mr. Bagri  
took him aside for a private conversation during which he  
said, “tell to your guys, ‘Don’t go to jail for a small  
thing. We have stuff that can blow like a – like a  
block’”.  
b)Upon arriving home from work sometime after the Air  
India/Narita explosions, Mr. C received a telephone call  
from an Avtar Singh advising him that Mr. Bagri was in  
town and wished to see him. Mr. C attended at a gas  
station in New Jersey where he had a private conversation  
with Mr. Bagri. Mr. C expressed his concern that the  
R. v. Malik and Bagri  
Page 599  
Deshmesh Regiment was being blamed for the Air India  
disaster, to which Mr. Bagri replied, “why the fuck they  
bother you? We did this.”  
c)Mr. C spoke with Mr. Bagri at a pro-Khalistan conference  
in Stockton, California in September 1987. During a  
discussion about a split in the Babbar Khalsa, Mr. Bagri  
indicated that he did not trust certain members in the  
organization because they might speak to the police about  
the Air India bombing. Mr. C also raised the issue of  
the timing of bombs, namely, that one had exploded mid-  
flight and the other on the ground at Narita Airport.  
Mr. Bagri replied that they had expected the explosion  
one hour earlier. He did not elaborate which explosion  
he was referring to.  
d)In December 1987, Mr. C met Mr. Bagri at a Sikh temple in  
New York and asked him about building bombs. Mr. Bagri  
replied that he did not wish to discuss the matter  
because, “walls have ears. Only two of us knows; a third  
person will know, for this we can go in jail”.  
e)In April 1989, Mr. C met with Mr. Bagri at the same Sikh  
temple in New York and raised the issue of Mr. Reyat’s  
arrest and the possibility that he might cooperate with  
the police. Mr. Bagri responded, “Don’t worry; he  
R. v. Malik and Bagri  
Page 600  
fucking don’t know nothing. Only two of us knows; nobody  
else.”  
[1331]  
For the reasons that follow, there are serious  
concerns regarding the credibility of Mr. C.  
[1332]  
Mr. C is an individual driven by self-interest. His  
immigration history from the time he entered the United States  
illegally in 1983 until as recently as January, 2004 reveals  
his willingness to engage in deception and lies, even under  
penalty of perjury, whenever he believed it would advance his  
self-interest. His attempts at trial to rationalize his  
falsehoods on the basis that he had simply sought to better  
himself and his family do little to mitigate the obvious fact  
that he considered the truth secondary when it conflicted with  
that self-interest.  
[1333]  
In May, 1985, Mr. C engaged in criminal activity by  
assisting two fugitives, members of his Deshmesh Regiment, to  
escape from an attempted assassination of an Indian dignitary  
visiting New Orleans. His involvement in that incident was a  
motivating factor in his becoming an informant for the FBI  
shortly thereafter, as was his fear of deportation as an  
illegal immigrant, particularly after the heightened awareness  
caused by the New Orleans incident. Media reports in the  
aftermath of the Air India/Narita explosions to the effect  
R. v. Malik and Bagri  
Page 601  
that the Deshmesh Regiment was claiming responsibility for  
those incidents led Mr. C to fear being implicated and  
provided an additional impetus to maintain the informant  
relationship.  
[1334]  
Even though Mr. C began informing anonymously,  
revealing his role as an informant in the event he was  
subsequently detained or arrested could have assisted him in  
avoiding or diminishing the consequences. He in fact came to  
enjoy considerable assistance from the FBI with respect to his  
immigration status, a benefit that would only continue so long  
as he was perceived as a valuable source of information. This  
would have provided a powerful incentive to provide such  
information, whether entirely accurate or not. As one  
example, Mr. C attempted to deflect attention away from  
himself by informing the FBI that it had been another  
executive member of the Deshmesh Regiment who had arranged for  
the funds to procure airline tickets for the New Orleans  
fugitives.  
[1335]  
Mr. C’s self-interest further manifested in his  
bargaining with respect to the $300,000 USD he received to  
testify in these proceedings. He then attempted to extract an  
additional $200,000 USD on the very eve of his testimony,  
testifying unconvincingly that these attempts had been either  
R. v. Malik and Bagri  
Page 602  
the result of a misunderstanding or a tactic to delay his  
appearance in court in order to handle a family matter in  
India. His entreaties for immigration assistance at the same  
time he was demanding this additional payment firmly belie any  
notion that he was motivated other than by self-interest.  
[1336]  
In addition, Mr. C’s testimony was rife with  
examples of evasiveness and internal contradictions, followed  
by implausible explanations.  
[1337]  
Beyond these global concerns with respect to Mr. C’s  
credibility as a witness, an examination of each of the  
instances in which he testified to having heard incriminating  
remarks by Mr. Bagri reveals further credibility difficulties,  
including the following:  
a)Mr. C raised the post-MSG Convention statement for the  
first time in February 1997. Despite having provided his  
FBI handler, Mr. Ron Parrish, with information regarding  
Mr. Bagri over the course of their four year  
informant/handler relationship, he never once mentioned  
this particular conversation. He also failed to mention  
it to the FBI in July 1992 in a detailed statement about  
this meeting at his residence.  
R. v. Malik and Bagri  
Page 603  
b)Mr. C’s evidence regarding the most inculpatory of Mr.  
Bagri’s alleged statements, “Why the fuck they bother  
you. We did this”, contains external and internal  
inconsistencies. The evidence as a whole suggests that  
the window of opportunity for this alleged conversation  
between Mr. C and Mr. Bagri was a weekday after September  
11 and shortly before September 25, 1985. Mr. Bagri’s  
work records reveal that he worked every weekday in  
September, thereby rendering his attendance in the New  
York area on a weekday highly unlikely. The possibility  
of a meeting occurring during this time frame is also  
undermined by Mr. C’s contradictory testimony that he  
related Mr. Bagri’s incriminatory statements to his  
roommates upon arriving home from Avtar Singh’s gas  
station but that his roommates had dispersed shortly  
after an FBI raid on their apartment. This latter event  
had taken place in late July.  
The evidence of Mr. Parrish does not substantiate Mr. C’s  
testimony about this important conversation in any  
material way. He testified that during a debriefing on  
September 25, 1985, Mr. C told him of an in-person  
meeting with Mr. Bagri during which the latter had stated  
that his group was responsible for the Air India/Narita  
R. v. Malik and Bagri  
Page 604  
explosions. Mr. Parrish’s only record of this  
information was a telex to FBI Headquarters in which he  
referred to his source having heard from several members  
of the Babbar Khalsa that the Babbar Khalsa in Vancouver  
was responsible for the Air India/Narita explosions. He  
testified that he had drafted the telex obliquely to  
protect the identity of his source. According to Mr.  
Parrish, Mr. C did not disclose the details of that  
meeting, such as it having occurred at Avtar Singh’s gas  
station at the end of September 1985 and the names of  
some of those who had also been present, until July 1989.  
Mr. Parrish, clearly a conscientious and diligent agent,  
testified that he had not made any accurate record of the  
information Mr. C had provided in September 1985, nor had  
he shared it with his supervisors. The evidence of  
former FBI agent Jack Cloonan revealed the extent to  
which Mr. Parrish’s handling of this apparent revelation  
of responsibility for one of the worst acts of aviation  
terrorism to have ever occurred departed from standard  
FBI protocol. However, it is not necessary to reconcile  
Mr. Parrish’s certainty regarding the level of  
information Mr. C had revealed on September 25, 1985  
against his inability to adequately explain the unlikely  
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Page 605  
manner in which dealt with that information since the  
only effect of his evidence is to eliminate the  
possibility of concoction by Mr. C after that date. The  
evolution of Mr. C’s account of the gas station  
conversation even on Mr. Parrish’s evidence undermines  
even that limited purpose.  
c)Mr. C’s recollection of the other three statements he  
attributes to Mr. Bagri was poor at the time he related  
them to the RCMP, often interchanging and confusing them.  
It is clear that they are not firmly etched in his memory  
to any sufficient degree such that it would be safe to  
rely on his evidence with respect to them.  
[1338]  
Accordingly, even in the absence of a Vetrovec  
caution, I find Mr. C’s evidence not to be credible.  
b.  
Ms. E  
[1339]  
Ms. E is a former friend of Mr. Bagri. Her  
testimony at trial was not inculpatory of Mr. Bagri and the  
Crown therefore seeks to rely on her hearsay statements to  
CSIS agent, Mr. William Laurie, earlier ruled admissible as  
necessary and reliable to a threshold level. In those  
statements, Ms. E referred to a late night visit by Mr. Bagri  
to her home the evening before the Air India/Narita explosions  
R. v. Malik and Bagri  
Page 606  
during which he sought to borrow her car. He explained that  
he was going to the airport but that only the bags were making  
the trip; he was not. At trial, however, Ms. E professed a  
lack of recall with respect to the timing and content of this  
conversation.  
[1340]  
In her statements to Mr. Laurie, Ms. E consistently  
described Mr. Bagri’s visit as having occurred the evening  
before the Air India explosion. In her evidence at trial,  
however, she generally associated that event with CSIS  
surveillance, which placed the visit on June 9, 1985. Looking  
at the evidence as a whole as I must do in assessing ultimate  
reliability, what is troubling is that throughout her evidence  
and her prior statements, Ms. E never described a second late  
night visit by Mr. Bagri in June 1985. This anomaly would  
have properly been the subject of rigorous cross-examination  
at trial to explore the possibility of mistaken recollection  
or fabrication. The defence, however, was denied this  
opportunity because of what I find to have been feigned memory  
loss on the part of Ms. E.  
[1341]  
Of less, but nonetheless valid, concern is the lack  
of an entirely full record of the statements and the defence’s  
inability to cross-examine Ms. E on the accuracy of that  
record. The statements were also provided following a promise  
R. v. Malik and Bagri  
Page 607  
of confidentiality, which, while adequately accounted for at  
the threshold level, is a further factor affecting the  
ultimate weight of the evidence.  
[1342]  
There is little else in the body of trial evidence  
to either confirm or contradict the material aspects of Ms.  
E’s statements to Mr. Laurie.  
[1343]  
Thus, proof of Mr. Bagri’s guilt beyond a reasonable  
doubt rests upon hearsay statements for which there is no  
reliable confirmatory evidence. These statements were  
provided on a confidential basis and not under oath by a  
person who falsely claimed loss of memory when testifying.  
When one adds to this the inability of the defence to conduct  
an effective cross-examination on significant issues  
surrounding those hearsay statements, I conclude that, even  
without turning to the need for a Vetrovec caution, a  
reasonable doubt arises with respect to the ultimate  
reliability of Ms. E’s hearsay statements to Mr. Laurie.  
4.  
[1344]  
Conclusion Regarding Mr. Bagri  
Considering the evidence as a whole, I find that the  
Crown has not proved its case against Mr. Bagri beyond a  
reasonable doubt with respect to his being a member of the  
alleged conspiracy or a party to the alleged offences and,  
R. v. Malik and Bagri  
Page 608  
accordingly, I find him not guilty on each count of the  
Indictment.  
I.  
Final Conclusion  
[1345]  
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 appear 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.  
“I.B. Josephson, J.”  
The Honourable Mr. Justice I.B. Josephson  
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Page 615  
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APPENDIX B  
R. v. Malik and Bagri  
Page 617  
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