Crown defends tape erasure

VANCOUVER, December 2, 2004
Vancouver Sun

Accused Air India bomber Ajaib Singh Bagri has not suffered any prejudice to his defence by the erasure of hundreds of hours of taped calls of suspected mastermind Talwinder Singh Parmar, a Crown prosecutor argued Wednesday.

Len Doust told Justice Ian Bruce Josephson that the tapes, which were erased by the Canadian Security Intelligence Service in 1985, could have helped the Crown's case against Bagri as much as aiding his defence.

Doust said the tapes were not erased to interfere with the criminal case, meaning there was no abuse of process which would warrant a severe remedy such as the exclusion of evidence or a stay of proceedings.

Josephson has already ruled the erasure of the tapes of Parmar's phone calls both before and after the June 23, 1985, bombing was unacceptable negligence that constituted a breach of Bagri's Charter rights.

The Charter guarantees accused persons disclosure of all the evidence against them.

Bagri's lawyers have said the CSIS erasure, coupled with the 1987 CSIS erasure of two taped interviews with a key Crown witness against Bagri, mean Bagri is entitled to a judicial remedy that could see the Crown's case against him weakened considerably.

Josephson also agreed with Bagri's lawyers when he ruled the Crown was late in disclosing information it had obtained about some Bagri defence witnesses.

The often technical arguments by both sides on what should be done about the Charter breaches are closing out the historic trial this week after 18 months in B.C. Supreme Court.

Doust said Bagri's lawyers could have called evidence at the Air India trial about the circumstances of the CSIS erasures as a remedy, but chose not to do so.

He also said the CSIS erasures happened 19 years ago -- long before precedent-setting court cases on the obligation of police agencies to preserve all the evidence in criminal cases.

Doust said Bagri must "establish actual prejudice" and not just the reasonable possibility of prejudice, which is impossible under the circumstances.

He said the lack of disclosure of the lost tapes does not violate "the community's sense of decency and fair play."

Bagri and co-accused Ripudaman Singh Malik are charged with eight counts including first-degree murder and conspiracy in two June 1985 bombings that targeted Air India and killed 331.