Air-India judge slams CSIS

By ROBERT MATAS
Globe and Mail Update

Canada's spy agency acted with unacceptable negligence by destroying
crucial evidence in the Air-India trial, violating the constitutional
rights of defendant Ajaib Singh Bagri, Mr. Justice Ian Bruce Josephson
ruled Tuesday.

In a stinging condemnation of the Canadian Security Intelligence Service,
Judge Josephson said the spy agency appeared to have failed to ensure that
errors they made in 1985 were not repeated two years later. CSIS destroyed
clearly relevant evidence for the criminal investigation, he said.

However the judge did not rule on an appropriate remedy for Mr. Bagri.
Defence lawyers for Mr. Bagri previously said the court could consider
alternatives later in the trial that include staying the entire
proceedings, dismissing the relevant evidence or allowing the defence to
submit evidence that would not otherwise be admissible to court.

The contentious evidence concerns uncorroborated testimony by former CSIS
agent William Laurie about interviews in September, 1987, with a woman
friend of Mr. Bagri.

Mr. Laurie testified she told him that Mr. Bagri asked to borrow her car on
the evening before the disaster to take baggage to the airport. Mr. Bagri
said the bags were going to the airport, but he was not, and he would
return her car, Mr. Laurie said. Although the woman refused Mr. Bagri's
request, the prosecution theory is that Mr. Bagri was involved in taking
the bags to the airport.

The CSIS agent testified he did not take notes while he was speaking to her
but wrote down what he remembered later on the same day. He also had a
briefcase with a hidden tape recorder that was operating during parts of
the interviews.

However he could not find the notes and the tapes were destroyed after a
transcript was prepared, he said. He shredded the transcripts after writing
reports for his supervisors, he also said.

The woman told the court that she did not recall making the comments to Mr.
Laurie. Judge Josephson decided that she was feigning memory loss, fearing
for her safety if she testified against Mr. Bagri.

However, he was critical of CSIS for its handling of the information from
interviews in 1987.

Judge Josephson accepted that Mr. Laurie had followed his normal practice
when gathering intelligence from a source. But CSIS appeared to have failed
at an institutional level, the judge stated, Two years earlier, CSIS erased
tape recordings to intercepted telephone conversations of alleged Air-India
mastermind Talwinder Singh Parmar without telling the RCMP they were
erasing potentially significant information.

As controversy grew over the tape erasures of possibly key evidence,
Solicitor-General James Kelleher wrote to the director of CSIS on Jan. 28,
1997 urging the two agencies to co-ordinate the preparation of evidence
which would be used for court purposes in the event of criminal
prosecutions in [the Air-India] case, the judge wrote.

In reply, CSIS director T.D. Finn wrote that he directed that the full
co-operation of the Service be placed at the disposal of the RCMP in this
regard, the judge said.

Mr. Laurie realized that the information obtained from the woman friend of
Mr. Bagri's was of extreme importance and relevance to the criminal
investigation, the judge stated. When in the course of his information
gathering role, he uncovered evidence relevant to that investigation, he
was obliged by statute and policy to preserve and pass on that evidence to
the RCMP.

However CSIS failed to ensure that the earlier errors in the destruction of
the Parmar tapes in 1985 were not repeated in 1987, he wrote.

It is apparent that the original notes, tapes and/or transcripts of these
meetings [of a CSIS agent with a source] would have been the best evidence
of what was actually said, the judge wrote.

It is clear that a procedure should have been in place for the preservation
of this clearly relevant evidence for the criminal investigation.

He ruled that the failure of CSIS to preserve the evidence violated Mr.
Bagri's right under the Charter to have the evidence against him disclosed.

Mr. Bagri and Vancouver businessman Ripudaman Singh Malik are accused of
murder in the death of 331 people killed in two explosions on June 23,
1985.


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