VANCOUVER, July 22, 2004
By ROBERT MATAS
GlobeandMail

In an unusual twist in the Air-India trial, defendant Ajaib Singh Bagri has asked the court to consider CSIS tape recordings of intercepted telephone conversations to prove that he was not a member of the alleged conspiracy to blow up airplanes.

Tape recordings of intercepted conversations by the Canadian Security Intelligence Service have never been accepted as evidence in a criminal case in Canada.

However defence lawyer Michael Code said the prosecution previously told the court about long-distance calls between the alleged Air-India mastermind Talwinder Singh Parmar and Mr. Bagri.

The prosecution maintained the long-distance calls show Mr. Bagri was associated with Mr. Parmar and was part of the conspiracy responsible for the bombings, Mr. Code said.

"Viewed in this context, the relevance of the preserved Parmar intercept tapes is self-evident," he said in his written submission to court. "Since [Mr.] Parmar was an alleged co-conspirator, evidence about who he spoke to during the time period of the alleged conspiracy, when these conversations took place and the matters that were discussed during these conversations has a direct and obvious bearing," he also said.

"[Mr.] Bagri seeks to rely on the tapes as evidence tending to establish that he was not a member of the alleged conspiracy," Mr. Code said.

The Parmar intercept tapes have repeatedly posed significant problems for the prosecution. The spy agency erased the tapes routinely before and after the Air-India disaster on June 23, 1985. Only 54 of 340 tape recordings remained when the spy agency realized the tapes might contain valuable information for investigators.

The remaining tapes did not include evidence directly incriminating the two men arrested in the case, Mr. Bagri and Ripudaman Singh Malik, and were not part of the prosecution case.

Mr. Code said the tapes show Mr. Bagri was associated with Mr. Parmar for reasons other than blowing up airplanes.

Earlier this week, the prosecution agreed the court could accept the tapes as evidence that Mr. Parmar had phone conversations on dates and times indicated by the tapes and that he spoke to those identified during the conversations.

The court will be asked later this summer to consider the contents of the conversations as evidence in the trial. Mr. Code said he will not seek to establish that all the statements made were true.

"What is relevant is the fact that Parmar and Bagri are discussing topics that do not form part of the conspiracy alleged, in contrast with Parmar's conversations with other associates that do appear to relate to the conspiracy," Mr. Code said.

Mr. Code conceded that the existence of some kind of conspiracy "between [Mr.] Parmar and [Inderjit Singh] Reyat at a minimum is not seriously in dispute." Mr. Reyat admitted he provided parts that were used for the explosion on the Air-India flight and is currently serving a five-year term for manslaughter.

But if the court decides that Mr. Bagri was not even probably a member of the conspiracy, he will be entitled to an acquittal, Mr. Code said.

Mr. Bagri and Mr. Malik are charged with the murder of 331 people in two bomb explosions in 1985.