LESSONS TO BE LEARNED

The report of the Honourable Bob Rae,

Independent Advisor to the Minister

of Public Safety and Emergency Preparedness,

on outstanding questions with respect to

the bombing of Air India Flight 182 Published by

Air India Review Secretariat Ottawa, Canada K1A 0P8 www.publicsafety.gc.ca

Funding for this publication was provided by Public Safety and Emergency Preparedness Canada. The opinions expressed are those of the author and do not necessarily reflect the official views of the Department.

ISBN 0-662-69501-1 Cat. No. PS4-25/2005

© Her Majesty the Queen in Right of Canada, 2005

This material may be freely reproduced for non-commercial purposes provided that the source is acknowledged.

La présente publication est aussi disponible en français. Elle s’intitule Leçons à retenir : Rapport de l’honorable Bob Rae, conseiller indépendant de la ministre de la Sécurité publique et de la Protection civile du Canada, sur les questions en suspens relatives à l’explosion survenue à bord du vol 182 d’Air India. This report is dedicated to the memory of those who died at the hands of terrorism on June 23, 1985, on board Air India Flight 182, and at Narita Airport, Tokyo, Japan.

AGGARWAL, RAHUL BERAR, JOGESHWAR CHATLANI, NITA

AHMED, INDRA BERRY, SHARAD CHEEMA, SHINGARA

AHMED, SARAH BERY, ADITYA CHOPRA, JAGDISH

ALEXANDER, ANCHANATT (ATAR) BERY, NEELAM CHOPRA, SHAMPARI (CHAMPARI)

ALEXANDER, ANNAMMA BERY, PRIYA CHUG, RATNA

ALEXANDER, REENA (RENA) BHAGAT, ADUSH DANIEL, CELINE

ALEXANDER, SIMON BHALLA, DALIP DANIEL, ROBYN (ROBIN)

ALEXANDER, SIMON JR. BHALLA, MANJU DANIEL, RUBY

ALLARD, COLETTE BHALLA, NIRMAL DANIEL, VARGHESE

ANANTARAMAN, ARUNA (ARVHA) BHARADWAJ, HARISH DAS, ANITA

ANANTARMAN, BHAVANI BHASIN, REEMA DAS, ARINDAR

ANANTARMAN, RUPA (KUPA) BHAT, CHAND DAS, RUBY

ASANO, HIDEO BHAT, DEEPAK DESA, ANTHONY

ASIRWATHAM, ELIZABETH BHAT, MUKTHA DESOUZA, RONALD

ASIRWATHAM, HANNAH BHAT, PARAG DHUNNA, BHAG (BHAGRANI)

ASIRWATHAM, RUTH BHAT, SIDHANT DHUNNA, RAJESH

AURORA, SHYLA BHATT, BINA DHUNNA, SHASHI

BAJAJ, ANU (ANJUBALA) (ANJU) BHATT, CHANDRABALA (CHANDRA) DHUNNA, SUNEAL

BALARAMAN, MARAYANAN (RODGER) BHATT, TINA DINSHAW, JAMSHED

BALARAMAN, SARADAMBAL BHATT, VINU (VINUBHAI) DINSHAW, PAMELA

BALASUBRAMANIAN, RAMACHANDRAN BHINDER, SATWINDER DUMASIA, DARA

BALSARA, FREDDY BISEN, LEENA ENAYATI, ARDESHIR

BEAUCHESNE, GASTON CASTONGUAY, ROCHELL (RACHELLE) FURDOONJI, HOMAI

BEDI, ANU CHANDRASEKHAR, SUKMAR GADKAR, ANITA (SUKUMAR) BEDI, JATIN GAMBHIR, ANGI (ANGELINE) CHATLANI, MALA BEDI, SAROJ GAMBHIR, JULIE CHATLANI, MARC GAMBHIR, SANTOSH JAIN, ANUUPAMA KHAN, RAHAMATHULLA

GAONKAR, SHYAMA JAIN, PARASH (PRAEASH) KHANDELWAL, CHANDRA

GHATE, SANGEETA JAIN, RANI KHANDELWAL, MANJU

GOGIA, BHAGWANTI JAIN, RIKKI KHERA, RASHIRASHMI

GOGNE, RITU JAIN, RUCHI KHERA, SUMAN

GOPALAN, KRISHNA JAIPURIA (JAIPURIYA), MALA KOCHHER (KOCHNAR), SANDEEP

GOSSAIN, APARNA JALAN, ANITA KODA, HIDEHARU

GOSSAIN, ARUN JALAN, DEVKRISHAN KUMAR, CHITRA

GOSSAIN, KALPANA JALAN, SHILA KUMAR, KEVIN

GREWAL, DALJIT JALAN, VINAY KUMAR, MANJU

GUPTA, AMIT JAMES, ANNIE KUMAR, RAMACHANDRAN

GUPTA, ANUMITA JETHVA, UMAR (UJY) LAKSHMANAN, KANAKASABAPAPHY (KANAKA) GUPTA, ARTI JETHVA, ZEBUNISKA LAKSHMANAN, PREETHI GUPTA, RAJESH JOB, ALEYKUTTY LASRADO, SHARON GUPTA, RAMWATI JOB, TEENA LAURENCE, NICOLA GUPTA, S. F JUTRAS, RITA LAURENCE, SHYAMALA GUPTA, SANTOSH KACHROO, MOHAN LAZAR, SAMPATH GUPTA, SHASHI KAJ, LEENA LAZAR, SANDEETA GUPTA, SWANTANTAR (SATANTAR) KALSI, INDIRA LAZAR, SYLVIA GUPTA, VANDANA KAMMILA, RAMA (RAMADEVI) LEGER, JOSEPH (PERE) GUPTA, VISHAL KAPOOR, SABRINA LOUGHEED, DONALD HARPALANI, DEEPA KAPOOR, SANTOSH (SANTASH) LULLA, MONISH HARPALANI, RASHMI KAPOOR, SHARMILA MADON, SAM HARPALANI, SUMENTA KASHIPRI, ATHIKHO MAINGUAY, LENA (LINA) JACOB, ALEYKUTTY KASHIPRI, NELI MALHOTRA, ATUL JACOB, BULIVELIL KAUR, GURMIT MAMAK, RAJINDER JACOB, JANCEY KAUR (BASSI), PARMJIT MANJANIA, NASIB JACOB, JISSEY KAUSHAL, BISHAN MARJARA, DAVINDER JACOB, JUSTIN KELLY, BARSA MARJARA, SEEMA PATEL, BABUBAI (BABUBHAI) SAGI, SUJATHA

MARTEL, ALAIN PATEL, BIPAN (BIPIN) SAHA, BIMAL

MEHTA, CHANDRALEKHA (CHANDRA) PATEL, MARAZBAN SAHU, PRADEEP

MEHTA, KISHONECHANDRA PATEL, MOHANBHAI SAHU, PUSHPA

MEHTA, NEESHA (NISHA) PHANSEKAR, RITA SAHU, RAM

MEHTA, NILISH (NILESH) PURI, AMIT SAKHAWALKAR, DATTATRAYA

MERCHANT, NATASHA PURI, CHAMAN (ASHU) SAKHAWALKAR, SANJAY

MINHAS, BALWINDER PURI, VEENA SAKHAWALKAR, SUNIL

MINHAS, KULBIR QUADRI, ARISHIYA (ARSHYA) SAKHAWALKAR, SUREKHA

MOLAKALA, (REDDY) PRABHAVATHI QUADRI, QUTUBUDDIN (QUTBUDIN) SAKHAWALKAR, USHA

MUKERJI, NISHITH QUADRI, RUBINA SANKURATHRI, MANJARI

MUKERJI, SHEFALI QUADRI, SHAIESTA (SHAISTA) SANKURATHRI, SARODA

MUKHI, RENU QUADRI, SYED SANKURATHRI, SRIKIRAN

MULLICK, DEEPAK RADHAKRISHNA, JYOTI (JYOTHI) SARANGI, RAJASRI

MURTHY, BHAVANI RADHAKRISHNA, NAGASUMDARA SAWHNEY, OM

MURTHY, NARAYANA RADHAKRISHNA, THEJUS SETH, AHKUR (ANKUR)

MURTHY, SUSHEELA RAGHAVAN, SUSEELA SETH, ALPANA

MURUGAN, GNANENDRAN RAGHUVEERAN, RAJIV SETH, KARAN

MURUGAN, LAVANYA RAGHUVEERAN, VASANTHA SETH, SADHNA

MURUGAN, RAMYA RAI, KIRANJIT SETH, SATISH

MURUGAN, SUMITHRA RAMACHANDRAN, PRATIBHA SETH, SHILPA

NADKARNI, DEVEN RAMASWAMY, JANAKI SHARMA (NARAIN), ANUJ

NADKARNI, RAHUL RAUTHAN, BUDI (BUDHI) SHARMA, INDU

NARENDRA, HANSE RAUTHAN, POUJA (FOAJA) SHARMA, MANMOHAN

NAYUDAMMA, YELABARTI RODRICKS, ELAINE SHARMA, NEERAJ

PADA, ARATI SABHARWAL, MEGHAN (MEGHANA) SHARMA, OM

PADA, BRINDA SADIQ, SUGRA SHARMA, RINA

PADA, VISHNU SAGI, KALPANA SHARMA, RUBY

PALIWAL, MUKUL SAGI, KAVITA (KAVITHA) SHARMA (NARAIN), SANDEEP SHARMA, SANDHYA SONI, PANKAJ TRIVEDI, NEETA

SHARMA, SHAKUNTALA SONI, RINA TRIVEDI, NIRMAL (NIRMALA)

SHARMA, SHARVAN SONI, USHA TRIVEDI, PARUL

SHARMA (NARAIN), SHYAM SRAN, PRIMAJIT (PRIMALJIT) TUMKUR, CHITRA (CHITRALSKHA)

SHARMA (NARAIN), SUMITRA SRIVASTAVA, BRIJBEHERI (BRIG) TUMKUR, RAMMOHAN

SHARMA, SUSHMA SUBRAMANIAN, GOPALSAMUDRAM TURLAPATI, DEEPAK

SHARMA, SWATI SUBRAMANIAN, JAYALAKSHMI TURLAPATI, SANJAY

SHARMA, VERSHA SUBRAMANIAN, KRISHNAN UPPAL, KULDIP

SHARMA (NARAIN), VIKAS SUBRAMANIAN, LAKSHMI UPPAL, PARMINDER

SHARMA, UMA SUBRAMANIAN, SUMITRA (SUMITHA) UPPAL, SUKHWINDER

SHUKLA, IRENE SUBRAMANIAN, VEENA UPRETI, GYANDRA

SHUKLA, SUNIL SWAMINATHAN, ANAND UPRETI, HEMA

SINGH, ABHINAV SWAMINATHAN, INDIRA UPRETI, VIRKAM

SINGH, AJAI SWAMINATHAN, PADMA VAID, NOSHIR

SINGH, AKHAND SWAMINATHAN, RAMYA VAZ / ALEXANDER, JULIET

SINGH, AMAR TACHETTU (THACHETTU), IVY VENKATESAN, GEETHA

SINGH, BALVIR (BALBIR) THAKUR, INDER VENKATESAN, SUKUVANAM (SUKUNANAM) SINGH, DARA THAKUR, KANAYA VENKETESWARAN, KRISHNAN SINGH, JAGIT THAKUR, PRIYA (TRICHUR)

SINGH, JOYOSREE THAKUR, VISHAL VERMA, BALWINDER

SINGH, MUKHTIAR THAMPI, VIJAYA WADHAWA, AKHIL

SINGH, RANJINA THOMAS, MOLLY WADHAWA, SERINA

SINGH, RATIK THOMAS / KYTHAKUZHICAL, ANITA YALLAPRAGADA / MURTHY, GOPAL KRISHNA SINGH, SHALINI THOMAS / KYTHAKUZHICAL, KURIAN

SINGH, SHOBNA THOMAS / KYTHAKUZHICAL, VINOD

SINGH, SURENDRA TRAVASSO, ANNE

SINGH, USHA TRAVASSO, C.F. (ALEX)

SINHA, ANJAMI TRAVASSO, LORRAINE (LUCY)

SONI, MONEKA TRAVASSO, LYON (MICHAEL) Table of Contents

1. Introduction ...... 3

2. The Nature of this Review Process ...... 5

3. What Occurred ...... 6

4. The RCMP and CSIS: Background ...... 12

5 Investigation, Charges and Trial ...... 14

6. Aviation Safety ...... 18

7. Issues for Further Review ...... 22

8. Form of Inquiry ...... 24

9. Options ...... 29

10. Recommendations ...... 31

Appendix 1 — Terms of Reference ...... 33

Appendix 2 — Meetings ...... 35

Appendix 3 — Chronology of Aviation Terrorism 1948–2001 ...... 36

Lessons to be Learned

In the early morning hours of June 23rd, the name ‘Kanishka’, was blown apart, falling 1985, Air India Flight 182 approached the approximately 31,000 feet below into the west coast of Ireland. The flight began in Atlantic Ocean off the south-west coast Toronto, receiving passengers and luggage of Ireland. from connecting flights, and picking up more The children going to visit grandparents, in Mirabel, Quebec. Children of all ages were young tourists looking forward to their first joined by their families, looking forward to experience of India, women and men of all visiting their loved ones and friends in India. ages, flight attendants and pilots, in short all Most of the passengers were Canadians. 329 passengers and crew were killed. Given the time of year — late June marks It was, at that point, and up until 9/11, the beginning of summer holidays here in the worst act of terrorism against the traveling Canada — there were an especially large public in world history. number of young adults, children and entire Meanwhile, at Narita Airport in families traveling on the flight. Tokyo, a bomb exploded at approximately Unbeknownst to them, in the weeks 11:15 p.m. on June 22, 1985, while luggage prior to that flight, a group of Canadians was being transferred from Canadian had been planning to blow up the plane. Pacific Flight 003 to Air India Flight 301 The conspiracy was based in radical sections to Bangkok. Two baggage handlers, Hideo of the Sikh community in Vancouver and Asano and Hideharu Koda were killed and elsewhere who were pursuing the goal of an four other baggage handlers were injured. independent country, to be called Khalistan, Numb with grief, families traveled to in the northwestern province of Punjab in Cork in the west of Ireland where they were India. met by an Irish population who rallied to As a result of this conspiracy, a bomb was receive them. The hospital in Cork became manufactured, placed in a suitcase, and taken a temporary morgue as the grim process of to the Vancouver airport, where on June 22, collecting and identifying bodies began. 1985, it was checked through on a flight Canadian authorities were not prepared from Vancouver to Toronto. In Toronto, the for such a disaster. Family members were lethal suitcase made its way onboard Air India overwhelmed with grief, angry that this Flight 181, which then stopped at Mirabel had been allowed to happen, furious that and became Air India Flight 182, en route to not enough was being done to answer their London and Delhi. questions. That grief and anger has not gone At approximately 12:14 a.m., on June 23, away with the passage of time. 1985, the timer on the bomb detonated a The Canadian government joined with charge and blew open a hole in the left aft the government of India and the local fuselage of the plane. The aircraft, which bore and national governments of Ireland to

Lessons to be Learned Page 1 build a compelling memorial site on the For reasons set out below, I am southwestern shore of Ireland in 1985–1986. recommending that a focused, policy based It is here that that the families come to inquiry be held to deal with questions from remember their loved ones. Prime Minister this mass murder that remain unresolved. Paul Martin led a delegation of Canadian We know the location of the conspiracy political leaders to join the families on the that planned the bombings, and the identity twentieth anniversary of the bombing. It of some of the conspirators; we know how was the first such visit by a Canadian Prime the bombs got on two planes; we know the Minister. details of the bombs’ detonation. We do While statements were made in the House not need to re-visit these questions. They of Commons in the immediate aftermath are clearly established. What we need to of the disaster, many families continue to know more about is how Canada assessed express their profound sense that the Air the threat, how its intelligence and police India bombing was never truly understood as forces managed the investigation and how its a Canadian tragedy. airport safety regulations did or did not work. Let it be said clearly: the bombing of the Twenty years later, these questions are still Air India flight was the result of a conspiracy worth asking. The Air India bombings were conceived, planned, and executed in Canada. the worst encounter with terrorism Canada Most of its victims were Canadians. This is has experienced. We cannot leave any issues a Canadian catastrophe, whose dimension unresolved. and meaning must be understood by all Canadians.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 2 1. Introduction

This report was prepared at the request of Babbar Khalsa movement, a group of Sikh Anne McLellan, Deputy Prime Minister and radicals determined to “purify” the Sikh Minister of Public Safety and Emergency religion and establish an independent Preparedness Canada. After Justice Josephson homeland for Sikhs in Punjab, India. The of the British Columbia Supreme Court families told me that they believe Canada acquitted two individuals accused of the must do more to deal with forces of bombing in March of 2005, I was appointed extremism, even hatred, within communities to provide independent advice to the Minister that have made this country their home. of Public Safety and Emergency Preparedness They believe that Canada’s politicians have on whether there remain outstanding not been sufficiently sensitive to the risks questions of public interest with respect to the of festering solitudes within communities bombing of Air India Flight 182 that can still breaking out into violence. be answered. The specific Terms of Reference They pointed to the evidence of a culture of my appointment are set out as Appendix 1 of fear within communities that has stopped of this document. This report is not a people telling the truth about what happened. definitive account of every event related to the Two potential witnesses in the Malik and Air India disaster but rather an assessment of Bagri trials were killed. These murders, while the issues that need to be examined more fully. still under active investigation, have not I have listened to the deep concerns of the yet led to criminal charges. Kim Bolan, a families. The acquittal of Ripudaman Singh reporter with the Vancouver Sun, has written Malik (Malik) and Ajaib Singh Bagri (Bagri) a recent book on Air India that documents brought many memories flooding back. It also many efforts at silencing and intimidating aroused again the sense of grief, anger, and her and others in the Sikh community critical frustration which they experienced from that of extremism. In the course of my work I moment in June of 1985, when they realized encountered many in the Sikh community that their loved ones had been killed. There deeply troubled by threats of violence, the are issues about the response of Canadian past misuse of Gurdwaras (temples) for government agencies to the bombing which political purposes and the abuse of charitable clearly warrant further review. fundraising for extremist causes. Not all of these issues should be the These issues are not unique to any one focus of an inquiry, because they are very community. To make them the subject broad, and some are already the subject of a public inquiry would be a vast and of widespread public debate. As Justice unmanageable exercise. But they need to Josephson determined in his Reasons for be the subject of continuing government Judgment, the conspiracy to bomb the review and action. Canadians should be able two Air India flights involved individuals to express their opinions without fear of belonging to what became known as the intimidation. Charitable organizations should

Lessons to be Learned Page 3 not be abused. The law in these matters is I must report that there is, to this day, a clear enough. It should be enforced. deep-seated conviction among the families The wide debate that has engulfed many that “Canada still doesn’t get it”, that in the countries about the potential for terrorist debate on terrorism, freedom, and security, attacks has, very naturally, deeply affected the balance of opinion does not and has never those whose lives have been shattered by the truly absorbed or taken into account the Air India bombing. They quite naturally ask brutal reality of a mass murder conceived and why it took 9/11 to galvanize opinion, to executed in Canada. At times some family introduce the Anti-Terrorism Act, to list certain members expressed to me the thought that terrorist groups. Quite naturally, they ask why if their skins were white the post-bombing the bombing of Air India Flight 182 did not experience of the country might have been move the Canadian government to act more different. I found no evidence of racism on decisively against the threat of terrorism. This the part of anyone in a position of authority. is not so much a subject for an inquiry as it is The mistakes in the investigation cannot for a deeper searching in which all Canadians, be traced to any such bias. But Canadians and their political leaders need to engage. have to ask themselves — have we taken this Why did the murder of 331 people not do tragedy seriously enough, and have we fully more to shake our complacency? understood its lessons for our country? The families have also expressed their The families’ concerns also extend to the deep hurt at their isolation from their fellow conduct of criminal trials in cases of this Canadians. There was little recognition of kind. Some have suggested that a panel of their loss. The civil lawsuit dragged on for three judges would be more appropriate. some years, until being settled in 1991. While I have not suggested this as a specific Emotional and psychological support was question for the inquiry, it is certainly an hard to find. Canadians did not embrace this issue worthy of study and discussion. disaster as their own. The Air India Review Secretariat has Twenty years after the bombing, and with spent time in the last few months working the support of the B.C. Attorney General, with family members on issues of memorial family members produced a book of memorial and remembrance. The Prime Minister’s to their loved ones. It is impossible to open meeting with the families, the trip to Ireland the book at any page and not feel the deepest by political leaders, the decision to declare sense of loss and hurt. Whole families — June 23 a national day of mourning in children of promise, parents of achievement perpetuity out of respect for the families, and kindness — were murdered. What and the plans to build memorials in different happened was not an accident. No conflict in parts of the country — these are all worthy any homeland, no religious or ethnic dispute, and necessary. They are not a substitute for no ideology can justify what happened. an inquiry. But they are important steps in Many Canadians think that it was “9/11” righting wrongs and providing recognition. that initiated us into the modern world of Attention must be paid. These lives should terrorism. It should have been June 23, 1985. not be lost in vain.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 4 2. The Nature of this Review Process

In conducting this review, I have met with the federal Deputy Ministers of Justice, several times with family members of the Transport, Public Safety, and Foreign Affairs, victims of the Air India bombing. These among others. meetings occurred in Vancouver, Toronto, The individuals and organizations I met Montreal and Ottawa. The Prime Minister, with are listed in Appendix 2. Deputy Prime Minister McLellan, RCMP In addition to the transcripts of the trials Commissioner Giuliano Zaccardelli, and of Reyat, Malik and Bagri, and the decisions Canadian Security Intelligence Service in those cases, I have reviewed reports of (“CSIS”) Director James Judd, and Margaret inquiries held in Canada, (particularly the Purdy, Special Advisor to the Deputy Minister Security Intelligence Review Committee of Transport Canada also attended meetings (SIRC) report of 1992), Ireland (Coroner’s in the spring of 2005 with family members. Inquiry), and India (the report of the Kirpal The Prime Minister also attended the Inquiry, India’s own inquiry into the Air India 20th anniversary commemorative service disaster, and the Jain Inquiry) and questioned at the memorial site near Cork, Ireland on countless officials. June 23rd. I have been ably assisted by the Air I have also received detailed briefings from India Review Secretariat, led by Taleeb the RCMP in Ottawa and Vancouver, from Noormohamed and his staff, Michelle Sample CSIS officials in both cities, with the senior and Chantale Lafond and by three colleagues Crown Prosecutor Robert Wright and his at the law firm of Goodmans LLP, Benjamin associates in Vancouver, with the Premier Zarnett, David Lederman and Jenna Seguin. and Attorney General of British Columbia,

Lessons to be Learned Page 5 3. What Occurred

In setting the context for these tragic religions, its adherents practiced their faith in events, it is important to understand trends different ways. A fundamentalist insistence underway in Canada and India. The Sikh on a return to the “pure practice” of Sikhism community had established itself in Canada took hold as lively, and often violent, at the turn of the last century, but remained debates unfolded in gurdwaras in urban relatively small and stable. Changes in centres like Toronto and Vancouver between immigration policy in 1967 opened the door competing elements in the community. The to a large increase in Sikh emigration from words “Babbar Khalsa”, the name of the India, with the focus of that growth in the organization in India and Canada that was lower mainland of British Columbia and at the heart of radical extremism in the Sikh southern Ontario. Politics in India and the community, means Tigers of the True Faith. Punjab in the 1960’s and 1970’s were volatile. The key elements of this faith were strict The demand for political independence for Sikh religious practice and an unwavering a separate Sikh based territory in the Punjab commitment to an independent Khalistan, had for some years been accompanied by to which must be added a ruthlessness about violence. The raid by the Indian government how these goals would be achieved. on the Golden Temple in Amritsar, Sikhism’s According to information provided to me holiest site, in June, 1984 and the subsequent by Foreign Affairs Canada, the department assassination of Prime Minister Indira Gandhi received many warnings of possible terrorist by her Sikh bodyguards in November of that actions against Indian interests in Canada same year had dramatically radicalized Sikh during this period. This threat information activism in India and around the world. The was shared with CSIS and the RCMP. The movement for secession of the Punjab was department’s security intelligence bureau supported by sections of the Sikh community held consultations in mid-May 1985 with in the US, the UK, Germany and Canada, Canada’s mission in Delhi on the Sikh and there were continuing allegations that terrorist threat in Canada and India. In money, arms and false passports flowed from addition an inter-departmental committee Sikh extremists in these countries to India. on Sikh terrorism was established May 17th, Prior to the bombing of Air India Flight 182 1985, for the purpose of better tracking there were a number of incidents of violence and sharing of information on activities in Canada, including the attack on the acting in Canada. The task force consisted of Indian High Commissioner, as well as threats representatives of the Department of Foreign of violence on other Indian representatives in Affairs, the RCMP, CSIS and the Solicitor Canada. General, and met a number of times prior to The growth of Sikh radicalism also had June 23, 1985. a domestic, Canadian flavour. Like many

Outstanding questions with respect to the bombing of Air India Flight 182 Page 6 In his March 2005 judgment, Justice By his own admission, another individual, Josephson of the British Columbia Supreme Inderjit Singh Reyat, was instrumental in Court concluded that one of the leaders of the construction of the bomb that would the conspiracy was Talwinder Singh Parmar.1 be placed on Canadian Pacific Flight 060 Mr. Parmar came to Canada in May 1970, heading to Toronto and later transferred and became actively involved in Sikh political to Canadian Pacific Flight 003 heading to and religious movements as a young man. Narita airport in Japan on June 22, 1985. He returned to India years later and was Mr. Reyat also plead guilty to manslaughter allegedly involved in a number of violent in aiding and abetting in the construction confrontations with Indian authorities. After of an explosive device placed onboard spending a year in custody in Germany, Air India Flight 182. Mr. Reyat is currently Mr. Parmar returned to Canada in the serving his sentence for manslaughter in summer of 1984. He was described as a British Columbia in connection with the dangerous and violent political activist by the construction of these two bombs. Mr. Reyat Indian government, and Canada received a has refused to name any other conspirators, request for his extradition on murder charges which led Justice Josephson to say the from the Indian government. This request was following about him: denied, but Mr. Parmar remained a person of Mr. Reyat’s involvement with the interest to Canadian authorities from the time procurement of parts and the development of his return to Canada, and during his trips of bombs used in the conspiracy to blow back and forth between India and Canada. up Air India planes is not at issue in these proceedings. He has been convicted of Indian police authorities in India killed offences in relation to both bombings. Mr. Parmar on October 14, 1992. Mr. Reyat’s credibility on the witness According to the SIRC report of stand is also of little moment in relation November 16, 1992, the first threat to the outcome of this trial. That said, assessment by CSIS of Sikh political activism it is without hesitation that I find him to be an unmitigated liar under oath. in Canada was made on May 1, 1984. Mr. Reyat endeavored to reveal as little A warrant under the CSIS Act to intercept information as possible regarding the communications on Mr. Parmar was complicity of himself and others in the sought in the Federal Court and granted offences, while attempting unsuccessfully to craft a story consistent with his plea to commencing March 14, 1985. This included manslaughter and his admissions of fact in the wiretapping of Mr. Parmar’s phone. The that connection. first telephone intercept started on March 27, Much of his evidence was improbable 1985. Surveillance on Mr. Parmar began in the extreme and entirely inconsistent as early as 1982, with agents being sent to with common sense. When caught in obvious and numerous irrationalities, he follow his movements. would seek refuge in memory loss or offer tentative possibilities or guesses.

1 R. v. Malik, [2005] B.C.J. No. 521 (B.C. S.C.) at paras. 224–227 [Malik].

Lessons to be Learned Page 7 The most sympathetic of listeners airport. What is known is that, pursuant to could only conclude, as do I, that his a commonly agreed plan, someone drove to evidence was patently and pathetically the airport, identifying himself as passenger fabricated in an attempt to minimize his involvement in his crime to an extreme M. Singh, and brought with him a suitcase degree, while refusing to reveal relevant containing a home made bomb that would information he clearly possesses. His later explode and kill all the individuals hollow expression of remorse must have aboard Air India Flight 182. been a bitter pill for the families of the The Vancouver airport was busy that day, victims. If he harboured even the slightest degree of genuine remorse, he would have and the owner of the suitcase was told that been more forthcoming.2 he was confirmed on Canadian Pacific 060 to Toronto but remained waitlisted for Air Messrs. Reyat, Parmar and others were India Flight 181 (Toronto to Montreal) and involved in the building of at least two Air India Flight 182 (Montreal to Delhi). bombs and they tested a device while under The recollection of the agent at the time, surveillance by members of CSIS on June 4, Jeanne Bakermans, was that the individual 1985. No photograph was taken of suspects was insistent his bag should be checked all heading into the woods to test the device, and the way through from (interlined) Vancouver when an explosion took place, CSIS agents to Air India Flight 182. Airline rules in place mistakenly believed that it was the sound at the time provided that passengers and of a rifle. There are differing accounts from their luggage should be checked together. the RCMP and CSIS as to the level of Baggage should not have traveled without co-operation between the two services with accompanying passengers. There was no respect to the surveillance of Mr. Parmar and reconciliation check between records of bags his associates on that day. and passengers before the flight took off. On June 20, 1985, airline reservations It would also appear that, while special were made for two people on two Canadian precautions were recommended for Air India Pacific Airline flights, one for Canadian flights — for example, there was additional Pacific Air Flight 060 from Vancouver to RCMP surveillance at the Toronto Airport Toronto and connecting Air India Flight — the same could not be said of connecting 181/182, and the other for Canadian Pacific flights. It is important to remember that the Flight 003 departing Vancouver for Narita bag was originally placed not on an Air India airport in Japan with a connecting flight flight but on a Canadian Pacific flight leaving from Narita airport to Bangkok on Air India Vancouver for Toronto. Flight 301. Although the phone number from Prior to June 23, 1985, the emphasis in which the phone call was made is known, Canada (and internationally) was on the the identity of the individuals who made the threat of hijacking; screening procedures reservations is not; nor is it known who took focused on the prevention of the boarding of the suitcases containing the bombs to the

2 Ibid. at paras. 224–227.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 8 weapons, including guns and other explosive From June 16, 1984 to June 22, 1985, as devices in hand luggage. a result of escalating violence in India, the On May 17, 1985, the High Commission security measures for Air India were increased of India presented a diplomatic note to the to level four. These new measures included: Department of External Affairs regarding increased RCMP surveillance of the Air India the threat to Indian diplomatic missions aircraft on apron area; RCMP monitoring or Air India aircraft by extremist elements. of the Air India arrival, departure and ticket Subsequently, in early June, Air India counter area; RCMP supervisor liaison with forwarded a request for “full and strict the Air India representative regarding security security coverage and any other appropriate operations prior to the arrival or departure security measures” to Transport Canada of the aircraft; and the RCMP Dog Master offices in Ottawa, Montreal and Toronto and checking any reported suspect luggage or to RCMP offices in Montreal and Toronto. package and searching the passenger section I have, to this point, been unable to find of the Air India aircraft before departure. any specific threat with respect to Air India On June 22, 1985, Canadian Pacific was Flight 182 on June 22/23, 1985. not under any specific threat and, therefore, Under the procedures established by Air normal passenger screening was carried out India, passengers, carry-on baggage and without additional procedures. checked baggage destined for Air India Flight For all Canadian airlines, Canadian 181/182 on June 22, 1985 were subjected to regulations before June 23, 1985, required extra security checks. Because of the threat a system of identification that prevented level assessed against the airline, Air India had baggage, goods and cargo from being placed more extensive security measures than almost on board an aircraft if it were not authorized any other Canadian or international airline. to be placed on board by the airline operator. These measures were generally in accordance However, if someone were to purchase a with the recommended procedures of the ticket, check their baggage and not board the International Civil Aviation Organization aircraft, the baggage would in all likelihood (ICAO) Security Manual for special risk have been authorized by the airline to be flights. placed on board the aircraft. Therefore, it was Air India had also requested and received possible to send baggage from one flight to extra security from Transport Canada and be transferred to another unaccompanied by the RCMP for the month of June 1985. For a passenger. This explains how a suitcase was Air India Flight 181/182, Air India provided interlined to Air India Flight 181/182 from a security officer from its New York office to Canadian Pacific 060. It was not the normal oversee the security arrangements at Toronto practice of airlines to interline baggage if and Mirabel. The security program at each there was not a confirmed reservation to the airport was under the overall supervision of destination. In this case, the ticket agent in the respective Air India station managers. Vancouver allowed the suitcase to proceed.

Lessons to be Learned Page 9 The following security measures were a container that was subsequently sealed in place at Vancouver International Airport and placed on board the aircraft. An on June 22, 1985. Airport security and additional security guard was also posted policing staff were on-site. Airport security at the in-transit luggage belt in Terminal II plans and procedures were in place, to prevent unauthorized luggage from being including coordination of both normal and placed on this belt. emergency operation. However, according Baggage screening for the Air India to information provided to me by Transport flight on June 22, 1985 commenced Canada, checked baggage was not searched, at approximately 2:30 p.m. local time. and Canadian Pacific did not conduct a head At 4:45 p.m. the x-ray unit became count of the passengers on board the aircraft unserviceable. At that time, approximately prior to departure. 50–75% of the luggage had been screened. As a result, a suitcase with a bomb in it The Air India security officer supervising the made its way onto Canadian Pacific Flight baggage examination authorized the screening 060 from Vancouver to Toronto, ready to be personnel to use a hand-held explosive vapour transferred to Air India Flight 181/182. and trace detector (the PD4C Sniffer) to In Toronto, Air India aircraft and screen the remaining baggage. The Burns passengers were handled by Air Canada at security personnel did this after a briefing Toronto’s Pearson International Airport on its operation by the Air India security (Terminal II). An RCMP officer, located officer and the baggage check was completed in the area, monitored activities relating to at 6:06 p.m. No luggage had been physically the Air India aircraft. Air India passengers opened and searched. The x-ray devices and proceeded through the regular passenger the PD4C Sniffer devices used to screen screening checkpoint at the international Air India passengers’ checked baggage was departure area, and continued to a cordoned acquired by Air India. off holding area within the sterile area. According to Transport Canada, earlier on Normally all checked baggage for Air January 21, 1985, airport security personnel, India flights was checked by an x-ray security Air India personnel, the RCMP and the Peel system, which was acquired by Air India in Regional Explosives Detection unit met to January 1985. This unit, which was designed evaluate the Air India security program. The to handle large packages and luggage, was RCMP Dog Master and the representative operated by three Burns Security personnel from the Peel Regional Explosives Detection and was situated in the baggage make-up area unit expressed their opinion that the PD4C of Terminal II. Sniffer was ineffective. It is also not known if Baggage to be transferred to the Air India the PD4C Sniffer that was used on June 22, flight arrived in Toronto on various domestic 1985, was the same PD4C Sniffer that was flights and was delivered to the international evaluated at the January 1985 meeting. baggage area for x-ray examination and It is not known if the suitcase interlined tagging. Domestic baggage was then placed in from Canadian Pacific Flight 060 on June 22,

Outstanding questions with respect to the bombing of Air India Flight 182 Page 10 1985 to Air India Flight 181/182 was phone and the hand-held wireless device was screened before or after the x-ray machine poor. While Canadian officials from Ottawa, broke down in Toronto. A PD4C Sniffer Dublin, and elsewhere, under the leadership screened baggage not examined by x-ray. of Canada’s Ambassador to Spain, Daniel There are indications that the PD4C Sniffer Molgat, went to Cork to help families cope could have been ineffective in detecting with the tragedy, it is clear that as a country explosives, especially plastics. Rather than we were simply ill equipped to deal with the using the PD4C Sniffer, it would have been full dimension of the disaster. I have spent more effective to open all bags and physically some time discussing these efforts with both inspect them. It would appear that this was Canadian officials and the families. The not done. latter feel deeply that their diverse needs Despite the precautions and protections were simply unmet. For their part, Canadian that were supposed to be in place, almost officials point to the long days and nights everything that could have gone wrong did attempting to respond to the disaster, and the go wrong. The bags should never have been weight of a horrendous crime scene that they checked without an accompanying passenger still carry with them. in Vancouver. Canadian Pacific Flights 060 Since that time, the Canadian Department (Vancouver to Toronto) and 003 (Vancouver of Foreign Affairs has set up an around the to Narita) should not have taken off without clock operations centre in Ottawa that can a reconciliation that would have shown be brought together on short notice, answer no accompanying passenger for these bags questions from Canadians, and co-ordinate aboard either flight. When the bag arrived in relief and consular efforts to help families in Toronto from Canadian Pacific Flight 060 distress. It has been put to use to considerable it should not have been transferred to the effect during the tsunami relief effort and Air India plane without being checked and a other issues affecting Canadians overseas, and bag reconciliation taken. is an incomparable improvement to what However, the suitcase with the bomb did was available in 1985, when one duty officer get through 2 airports, both in Vancouver would be on call at off-duty hours to muster and Toronto. The mid-air explosion off the a response. There are standing operating west coast of Ireland in the early morning of procedures for officers in Canada and abroad June 23, 1985, was the consequence. on measures to be taken to respond to a Nothing of this dimension had ever consular or other crisis. occurred before to Canadian citizens in A deeper analysis of both the experience of peacetime. The Canadian Embassy in Dublin families and the official response is required, was small and had very limited resources. to ensure that lessons have been truly learned. Communication before the age of the cell-

Lessons to be Learned Page 11 4. The RCMP and CSIS: Background

From the very start of the investigation into The agreement first states that “pursuant the Air India disaster, both CSIS and the to section 12 of the CSIS Act, CSIS shall RCMP were involved. The two agencies had provide … to the RCMP as it becomes been separated in 1984, following the report known/available to CSIS or if specifically of Justice David Macdonald concerning requested by the RCMP … assessments certain activities of the RCMP. The main and/or information concerning any threat thrust of the Macdonald Report was that to the security of Canada relevant to the security intelligence work should be separated role and responsibilities of the RCMP...”4 from policing, and that the activities of a new Further, the agreement states that pursuant agency, the Canadian Security Intelligence to section 13 and 19(2) of the CSIS Act, Service, should be subject to both judicial the CSIS shall provide the RCMP with approval for warrants, as well as general information “relevant to the investigation and oversight review by a new body, the Security enforcement of alleged security offences or Intelligence Review Committee, as well as the the apprehension thereof which fall within office of the Inspector General. CSIS would the primary responsibility of the RCMP not be a police agency, and CSIS agents pursuant to section 61(1) of the CSIS Act.”5 would not be police officers. It was noted “any disagreement that can The government accepted this not be resolved by the Director [of CSIS] recommendation, but it was not without and Commissioner [of the RCMP], shall controversy. Concerns were strongly expressed be referred to the Solicitor General for that the neat division between security resolution.”6 intelligence on the one hand and policing on When providing direction regarding the the other was artificial, and that in fact the impact of Bill C-97 and the creation of CSIS, lines between the two were frequently blurred. then Solicitor General Robert Kaplan P.C., Recognizing the need for the two agencies Q.C, M.P. wrote to CSIS Director Finn, and to work closely together, a Memorandum of RCMP Commissioner Simmonds that: Understanding (MOU) was signed July 17, ... the separation of the security 1984, in which the conditions related to intelligence role from the RCMP must not the transfer and sharing of information inhibit the passage of information between between CSIS and the RCMP were outlined.3 the RCMP and the CSIS. The CSIS and

3 July 17, 1984, Memorandum of Understanding between the RCMP and CSIS. 4 Ibid. 5 Ibid. 6 Ibid. 7 In January 1984, the Government introduced Bill C-9. This bill was revised and was passed by the House of Commons and the Senate in June 1984, and on July 16, 1984, Canadian Security Intelligence Service Act (an Act to establish the Canadian Security Intelligence Service) was proclaimed.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 12 the RCMP have symbiotically related that “the RCMP and CSIS will consult and duties and responsibilities in the security co-operate with each other with respect to the field. Neither organization can fully, or conduct of security investigations.”10 effectively, achieve its national security related goals without the co-operation and A question that has to be answered with assistance of the other.8 respect to the Air India investigation is Furthermore, one of the stated principles whether this consultation and co-operation articulated in the document was that “the in fact occurred, and whether it is occurring RCMP will rely on the CSIS for intelligence today. relevant to national security offences”9, and

8 Letter of July 24, 1984, from Robert Kaplan to CSIS Director Finn and RCMP Commissioner Simmonds, as presented by the RCMP on October 11, 2005. 9 MOU, supra note 3. 10 Ibid.

Lessons to be Learned Page 13 5. Investigation, Charges and Trial

After the bombings, more than 200 RCMP In February 1988, police in Britain investigators and support staff were deployed arrested Mr. Reyat and charged him with to the investigation of the Air India and the making the bomb that exploded at the Narita airport bombings. The investigation Narita Airport. He was extradited to Canada was national and international in scope. on December 13, 1989. His trial began The majority of the physical evidence on September 17, 1990, and lasted eight was uncovered at the Narita blast site and months. On May 10, 1991, he was found investigation surrounding Mr. Reyat’s guilty of manslaughter by Justice Paris of the acquisition of bomb components. Searches British Columbia Supreme Court and later and communication intercepts of suspects were sentenced to 10 years in prison. numerous. The Air India Flight 182 crime Despite the arrest of Mr. Reyat, the scene generated only a minimal amount of investigators were having difficulty finding physical evidence as the wreckage was located sufficient proof to charge others. While over 6,000 feet below the ocean’s surface and Parmar was clearly identified as a member only a very small portion was ever recovered. of the conspiracy, he was killed in an On November 6, 1985, the RCMP encounter with Indian authorities in 1992. conducted a search of the homes of There were other problems regarding the Mr. Parmar, Mr. Reyat and three others. establishment of a reward for information Following the sweep, Parmar and Reyat leading to a conviction. After some delay in were arrested on weapons, explosives and getting approval for a reward, this was finally conspiracy charges. The RCMP said at announced in 1995. the time that the arrests were part of their On October 27, 2000, Malik and Bagri investigation into the Air India disaster. were arrested in relation to the bombings. The charges against Mr. Parmar were Malik and Bagri were charged jointly with dropped due to lack of evidence but eight counts under the Criminal Code of Mr. Reyat was charged with three counts Canada. On June 5, 2001 Crown Counsel relating to the ignition of an explosive filed a new indictment, adding Reyat to those device in the woods outside Duncan, British already charged on October 27, 2000. On the Columbia and a fourth count related to a new indictment, Malik, Bagri and Mr. Reyat weapon found in his home during a search were jointly charged under the Criminal Code by police. Reyat eventually pled guilty to two of Canada with the following: counts, paid a fine of $2,000 and a stay of • 1 count of first degree murder under proceedings was entered with respect to the section 218(1) of the Code; other two counts. Shortly after that, he took • 1 count of conspiracy to commit his family to Coventry, England. However, murder under section 423(1)(a) of the he remained a key suspect in the Air India Code; bombings.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 14 • 1 count of attempted murder of the reasonable doubt. Unlike the Reyat trial, passengers and crew of Air India Flight there was no physical evidence that could 301 (Tokyo to Bangkok), under section link these two particular individuals to the 222 of the Code; conspiracy. The Crown relied on several • 1 count of conspiring to cause bombs witnesses coming forward who testified as to to be placed on board various aircraft, what they said they knew and had been told. under sections 76.2(c) and 423(1)(d) of Thus, the case turned on the trial judge’s the Code; and view of the reliability of the testimony of the • 3 counts of causing a bomb to be placed witnesses who came forward. on an aircraft, under section 76(2)(c) of The trial was long and complex, the most the Code. expensive and difficult in the history of the country. Its conclusion naturally sparked a On February 10, 2003, Mr. Reyat pled widespread debate among the families, the guilty and was sentenced to five years in media, and the broader public. prison for manslaughter and the murder The trial before Justice Josephson was charges against him were dropped. significant for many reasons. First, he The trial of the other accused, Bagri found that there was one conspiracy with and Malik, began in British Columbia two bombs, and that the bombs were put Supreme Court in April 2003, before Justice on board two Canadian Pacific planes Josephson, and closing submissions were departing Vancouver — one in a bag marked heard December 3rd, 2004, for a total of “M. Singh” destined for Air India Flight 182 233 sitting days. On March 16th, 2005, and the other in a bag marked “L. Singh” Justice Josephson released his decision finding destined for Air India Flight 301. Justice Malik and Bagri not guilty on all counts. In Josephson held: his ruling, Justice Josephson noted that: The foregoing leads to an overwhelming I began by describing the horrific nature inference that the bomb which precipitated of these cruel acts of terrorism, acts which the destruction of Air India Flight 182 cry out for justice. Justice is not achieved, was contained in the M. Singh bag. Both however, if persons are convicted on suitcases were part of one conspiracy, anything less than the requisite standard a conspiracy that saw the successful of proof beyond a reasonable doubt. detonation of an explosive device in the Despite what appear to have been the best L. Singh bag linked to Mr. Reyat and and most earnest of efforts by the police Mr. Parmar. That the M. Singh bag, in all and the Crown, the evidence has fallen these circumstances, could have contained markedly short of that standard.11 something other than an explosive device Justice Josephson found that the evidence defies both logic and common sense. against Malik and Bagri was not of sufficient This is an important conclusion given credibility to meet the standard of proof the number of alternative theories in respect in a criminal trial, which is guilt beyond a

11 Malik, supra note 1 at para. 1345.

Lessons to be Learned Page 15 of the bombings that were put forward by a 1985 and from May 8, 1985 to June 23, variety of witnesses and other individuals. 1985 had been erased by CSIS. Second, Justice Josephson recognized that In addition, the physical surveillance of Mr. Parmar was generally acknowledged by Mr. Parmar was intermittent in this same both the Crown and the defence as being the period. For example, there was no such leader in the conspiracy to commit the crimes surveillance on the days immediately before at issue.12 This finding was important because it the bombing. connected Mr. Parmar directly with the crimes. Justice Josephson noted that the Third, the trial process revealed that much destruction of these tapes was “unacceptable of the information that CSIS had obtained negligence”13 SIRC concluded in 1992 that through its investigation was not promptly the destruction of the tape erasure had no shared with the RCMP. material impact on the RCMP investigation. For example, it would appear that CSIS This is a not a view shared by the RCMP, did not advise the RCMP that a warrant had made clear in the memos of February 9th and been obtained from the Federal Court to 16th, 1996, written by Gary Bass, Assistant intercept communications on Mr. Parmar. Commissioner of the RCMP and lead There are conflicting reports as to when CSIS investigator into the Air India disaster since advised the RCMP about the wire taps that 1996. had been placed on Mr. Parmar after the The erasure of the tapes is particularly bombing. There are also conflicting stories as problematic in light of the landmark to the extent of a separate CSIS investigation decision of the Supreme Court of Canada in the immediate days after the bombing in R. v. Stinchcombe14, which held that the and the degree of cooperation between the Crown has a responsibility to disclose all RCMP and CSIS at that time. Further, relevant evidence to the defence even if it there are conflicting views on whether or has no plans to rely on such evidence at trial. not the RCMP asked CSIS to maintain Justice Josephson held that all remaining the tapes from the wiretap it had placed on information in the possession of CSIS Mr. Parmar. is subject to disclosure by the Crown in Fourth, the trial process revealed that accordance with the standards set out in many of the tapes from the Mr. Parmar Stinchcombe.15 Accordingly, CSIS information wiretap had been erased by CSIS. In should not have been withheld from the particular, the tapes of the Mr. Parmar accused. intercepts from March 27, 1985, to April 8, The defence argument in the trial of 1985, and from April 26, 1985 to May 5, Malik and Bagri was that erased tapes might

12 Malik, supra note 1 at para. 1256. 13 R. v. Malik, [2004] B.C.J. No. 842 at para. 22. 14 R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.). 15 Ibid. at para. 14.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 16 have produced information that could the connections between intelligence, the exonerate their clients. For that reason alone, destruction of evidence, required disclosure the tapes should never have been destroyed. and admissible evidence. It is clear that The issue of the relationship between the relationship between these institutions CSIS and the RCMP that was before Justice and the interplay between intelligence and Josephson highlights the concerns about evidence requires further review.

Lessons to be Learned Page 17 6. Aviation Safety

Since the mid-1960s, when targeting aviation 1988, Pan Am Flight 103 exploded over interests came into vogue, the means of attack Lockerbie, Scotland, killing all 259 people and choice of targets have not changed that on board as well as 11 on the ground. An much, although there have been fluctuations explosive device had been hidden in a Toshiba in the frequency of attacks. As shown in radio cassette player in a suitcase. Examples the chart below, airports, aircraft and off- can also be found of improvised explosive airport facilities, such as airline offices, have devices being assembled on board aircraft. remained the principal targets of interest. In The attacks of September 11, 2001 addition, bombings, hijackings and armed represented a shift in paradigm in that the assaults remain the main modes of attack. aircraft themselves were used as weapons; although suicide attacks using transportation ������������������������� �������������������������������������� assets is not a new phenomenon. There have been at least 20 suicide attacks since 1996, ��� �� and, according to statistics, three quarters of ��� �������� ���������� all suicide bombings have taken place since ��� ����������������� ��� September 11, 2001. In terms of suicide terrorism and aviation ��� ��� security since September 11, had Richard

�� Reid been successful in detonating his shoe �� bomb aboard American Airlines Flight 63 � from Paris to Miami in December 2001, the � ��������� ��������� ��������� ��������� incident would have qualified as a suicide Source: 1967–1996 Data from Ariel Merari, “Attacks on Civil Aviation: Trends and Lessons,” Lecture at the White House Commission — George mission. The near-simultaneous explosion of Washington University Conference on Aviation Safety in the 21st Century. 1997–2001 Data from FAA Criminal Acts against Civil Aviation 2001 two Russian passenger aircraft on August 24, Edition. This was the last year of this FAA publication. 2004, is generally believed to have been the For purposes of information, I am work of two suicide bombers. attaching as Appendix 3, a list compiled Focussing on the Air India tragedy, by Transport Canada of terrorist incidents Indian targets around the world had been involving aircraft over the last 50 years. the subjects of internal and external security The Air India Flight 182 incident was not threats for decades. The risks associated with the first time explosive devices were placed in Air India flights to and from Canada were checked baggage, nor would it be the last. On taken seriously. Yet disaster still struck. September 7, 1974, a Trans-World Airlines jet Because of the ambient threat in 1985, with 88 people aboard crashed off the coast of Air India had more extensive security Greece following an explosion in the baggage measures than almost any other Canadian compartment. Similarly, on December 21, or international carrier. Air India had, in

Outstanding questions with respect to the bombing of Air India Flight 182 Page 18 accordance with the Foreign Aircraft Security As we have seen, all these additional Measures Regulations, submitted a copy measures were not enough to stop the of its security program to the Minister of conspirators from getting the bomb on the Transport. The Air India program included: plane. Transport Canada enacted additional • Established sterile areas. security measures for all Canadian and • The physical inspection of all carry-on foreign carriers for all international flights baggage by means of hand-held devices from Canada on June 23, 1985, as an or x-ray equipment. immediate response to the Air India Flight 182 tragedy and the baggage cart explosions • Control of boarding passes. at Narita Airport. These measures included: • Aircraft security. • More rigorous screening of all • The off-loading of baggage of passengers and carry-on baggage. passengers who failed to board flights. • The physical inspection or x-ray • The full screening of all passengers and inspection of all checked baggage carry-on baggage. (international destinations). • The physical inspection or x-ray • A 24-hour hold on cargo except inspection of all checked baggage. perishables received from a known • A 24-hour hold on cargo except shipper unless a physical search or x-ray perishables received from a “known inspection was completed. shipper” unless a physical search or • The acquisition and deployment of x-ray inspection was completed. 26 explosive detector units, which • Security screening of all flight deck and were in the final stages of testing cabin crew. and development at the time of the • No screening exemptions for Indian Air India tragedy. VIPs or embassy staff, including • The acquisition and deployment of ambassadors. additional carry-on luggage x-ray units, • Aircraft inspections for the presence of hand-held metal detectors and walk- weapons at the originating station. through metal detectors. • Cargo hold checks prior to loading. The Air India and Narita disasters • Constant surveillance of baggage on the transformed Canada’s civil aviation ramp and in transit carts. program. These two events also changed the • Preparation of catering supplies and international environment and generated new food in a secure area and measures to approaches to protecting passengers, airports ensure they were not unattended while and aircraft around the world. in transport. In the aftermath of the Air India tragedy, • Inspection of catering supplies and food the Indian Government’s Kirpal Commission upon delivery to the aircraft. of Inquiry and the Canadian Aviation Safety Board (CASB) began separate investigations.

Lessons to be Learned Page 19 Numerous recommendations stemming from • The banning of the use of cameras in the Kirpal Commission’s report to improve and around security checkpoints. aviation security and prevent the placement Other significant improvements to of explosive substances on board commercial Canada’s aviation security regime included aircraft were implemented by Canada. the following enhancements: As the Canadian Aviation Safety Board’s • The consolidation of the security mandate limited its investigation to the functions in Transport Canada by the disaster itself, the Government of Canada creation of a dedicated group, now felt a more holistic review of aviation security known as the Security and Emergency was required. It asked the Interdepartmental Preparedness Directorate; Committee on Security Intelligence to do • Increase in the number of security a thorough review of airline and airport inspectors and other personnel assigned security. Those findings became known as the to the Security and Emergency Seaborn Report, in recognition of its author, Preparedness Directorate; Blair Seaborn, at that time a senior official • Funding of five million dollars for the at the Privy Council Office and the Chair of development of new and innovative Interdepartmental Committee on Security technologies through the Research and Intelligence. Development Program; Foremost amongst the changes recommended by Mr. Seaborn was the • General overhaul of the regulatory introduction of stringent requirements that framework by creating new regulations forbade the carrying of checked baggage on and a graduated system in response to international flights unless the passenger was increased threat levels; and also on board. • More efficient sharing of security Canada was the first ICAO member intelligence information with domestic country to require: and international partners. • Passenger/baggage reconciliation on After the events of September 11, 2001 international flights, a measure later further regulatory and technical changes extended to include domestic flights. occurred. In the December 2001 budget, the (ICAO, in recognition of Canada’s Government of Canada allocated $2.2 billion initiative as a best practice, mandated over 5 years for: passenger-baggage match as the • Creation of a new organization called international standard in December CATSA to take over responsibility of 1987); pre-board screening passengers and • Comprehensive background checks for carry-on baggage from air carriers. airport workers; • The hiring of 59 additional Transport • Removal of baggage coin lockers from Canada Security Inspectors across the major airports; and five regions in the National Capital Region.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 20 • Funding for aircraft security of ICAO’s budget. These are major issues modifications (up to $30 million). because they mean that whatever domestic • One-time payment for increased issues are addressed, they can be undermined police presence and security at airports by weaknesses in other parts of the world. (up to $20 million). I have toured both the Toronto and Other enhancements to aviation security Vancouver airports in the company of include requiring all passengers in Canada officials from the airport authorities, CATSA, to be subject to new limits on carry-on Transport Canada, Air Canada and Air luggage and all passengers traveling on flights India, and have also met with officials at the bound for the U.S. to be subject to random International Civil Aviation Organization secondary searches prior to boarding their in Montreal. But, as evidenced by the recent aircraft. CBC investigation on “The Fifth Estate” The current measures for checked baggage regarding Canada’s aviation security, there security are generally the same as existed remain significant issues to be addressed in immediately prior to September 11, 2001. this area. One major enhancement however, is that The Air India bombing is proof of the checked baggage on flights to the U.S. must importance of the human factor. Better now be screened, using one of a number of regulations and more efficient technology approved configurations of conventional x-ray matter, but they are only as good as the equipment, explosives detection equipment people enforcing them. Tens of millions and physical means. By January 1, 2006, all of people fly around the world every checked baggage from Canadian airports for year, passengers in a hurry to get to their any destination will be subject to screening. destination as quickly as they can. Security Given the foregoing, it would be fair to checks take time, the pressure is always there say that the regulatory environment today is to do things quickly. Security work can be improved over that of 1985. repetitive, increasing the risk of human error. It must also be said, however, that in a The Minister of Transportation has shrinking world, air transportation security indicated recently that the statutory review of and safety are only as safe as the weakest the legislation creating CATSA will include link in the chain. Canada’s membership in an analysis of security more generally. I see no the ICAO is one forum that should lead to point in duplicating that review, provided it is more aggressive steps worldwide. While all independent of government and is open to a passenger luggage will be screened in Canada discussion with the victims of terrorism about by January 1, 2006, the same is not true of lapses in aviation security. In the alternative, cargo. This is a serious gap in Canada and issues of aviation security could be one of the around the world. An ICAO security audit subjects of the inquiry that I am proposing in of member countries is not public, nor is this report. the security plan of action a permanent part

Lessons to be Learned Page 21 7. Issues for Further Review

The conclusion of my work is that a further Drawing on our own and other closely inquiry should be held to provide satisfactory related experiences, how can we deal answers to the following questions: with these relationships in an effective 1. Was the assessment by Canadian way today? government officials of the potential 4. There were grievous breaches of threat of Sikh terrorism in the period aviation security in the Air India prior to 1985 adequate in light of the bombing. Has Canada learned enough information reasonably available at from the Air India bombing in terms the time, and was there sufficient of its public policy in this area, and co-ordination of a response by what further changes in legislation, Canadian government agencies? If there regulation, and practice are required? were deficiencies in the assessment, and I see each of these questions as falling in the response, have systemic issues clearly into the category of issues that still been effectively resolved, such that need to be addressed. The first speaks to the similar errors would not be committed understandable concern that a threat, once today? identified, must be dealt with effectively. 2. In the periods before and after This is not a case of “Monday morning June 23, 1985, were there problems quarterbacking”. Any analysis has to deal in the relationship between CSIS with the context of the time and with people and the RCMP and any other working with imperfect knowledge. But a government departments or agencies review of the record does leave a sense that that detrimentally affected the there are still important issues to be faced in surveillance of terrorist suspects and the the area of threat assessment and subsequent investigation of the Air India bombings, action. and have these problems now been The second and third issues follow resolved? If not, what further changes in equally clearly from the public record and practice and/or legislation are required my interviews with officials. The splitting off to ensure an effective co-operation? of security intelligence functions from the 3. The investigation and prosecutions RCMP, and the creation of the new agency, in the Air India matter point to the CSIS, came just at the time that terrorism difficulty of establishing a reliable was mounting as a source of international and workable relationship between concern. At the time of the split, counter- security intelligence and evidence that intelligence (as opposed to counter-terrorism) can be used in a criminal trial. The took up 80% of the resources of CSIS. The intelligence/evidence/enforcement Cold War was very much alive, and the world conundrum is not unique to Canada. of counter-intelligence and counter-espionage

Outstanding questions with respect to the bombing of Air India Flight 182 Page 22 in the period after 1945 had created a culture this misses the point that in an age where of secrecy and only telling others on a “need terrorism and its ancillary activities are clearly to know” basis deeply pervaded the new crimes, the surveillance of potentially violent agency. behaviour may ultimately be connected to The 9/11 Commission Report in the law enforcement. Similarly, police officers United States is full of examples of the are inevitably implicated in the collecting difficulties posed to effective counter-terrorist of information and intelligence that relate strategies by the persistence of “stovepipes to the commission of a violent crime in the and firewalls” between police and security furtherance of a terrorist objective. officials. Agencies were notoriously reluctant Commissioner O’Connor’s inquiry into to share information, and were not able to the Arar case touches on these issues as well. co-operate sufficiently to disrupt threats to At what point does “need to share” replace national security. There is, unfortunately, “need to know” as the prevailing culture? little comfort in knowing that Canada How do we manage the issues of privacy has not been alone in its difficulties in and rights of the subject when the firewalls this area. The issue to be faced here is between agencies come down? The test whether anything was seriously wrong in for a warrant which allows interception of the institutional relationship between CSIS communications under the CSIS Act and and the RCMP, whether those issues have the provision of similar warrants under the been correctly identified by both agencies, Criminal Code of Canada are different. How as well as the government, and whether the do we ensure that we have achieved the right relationships today are such that we can say mix of protecting the rights of the individual with confidence that our security and police and the need to ensure the protection of the operations can face any terrorist threats with security of the citizenry? a sense of confidence that co-operation and The fourth question points to a need to consultation are the order of the day. make sure we have learned all the lessons we The intelligence-evidence debate is equally need to learn from the breaches of aviation important. If an agency believes that its security at the time of the Air India bombing. mission does not include law enforcement, As I have said above, this question needs to be it should hardly be surprising that its agents answered by someone. If it is covered by the do not believe they are in the business of CATSA review, there is no need for it to be collecting evidence for use in a trial. But added as a subject for this proposed inquiry.

Lessons to be Learned Page 23 8. Form of Inquiry

Having said that there are questions still It is a fundamental premise of Canadian to be answered, I now turn to the equally law that an inquiry cannot be used to important question of what kind of inquiry establish criminal or civil responsibility. should be held to answer them. As Justice Cory stated in Canada (Attorney The weeks before my appointment General) v. Canada (Commission of Inquiry were marked by a renewal of the call for a on the Blood System in Canada — Krever public inquiry. This call had been originally Commission), “A commission of inquiry is made almost immediately after the atrocity neither a criminal trial nor a civil action occurred in 1985. The frustrating slowness for the determination of liability. It cannot and complexity of the criminal investigation establish either criminal culpability or civil led to more such demands. These reached responsibility for damages.”16 a crescendo after the acquittal of Bagri and The courts have, over the last twenty Malik in 2005. years, engaged in the difficult exercise of In my meetings with family members balancing the broad public interest in getting and many others I have asked the question to the bottom of difficult problems, and — a public inquiry into precisely what? To protecting the rights of the individual. Here, which I have received essentially three types for example, is what Justice Cory said in of answers. The first is “to find out who Phillips v. Nova Scotia (Commission of Inquiry committed this crime and to make sure they into the Westray Mine Tragedy): are brought to justice”. The second is “to find One of the primary functions of public which individuals in government and various inquiries is fact-finding. They are often police and security forces made mistakes convened, in the wake of public shock, and to hold them personally accountable for horror, disillusionment, or skepticism, in order to uncover “the truth”. Inquiries are, them”. The third is “to establish what went like the judiciary, independent; unlike the wrong and make sure these mistakes are not judiciary, they are often endowed with repeated.” wide-ranging investigative powers. In An inquiry to answer the first two following their mandates, commissions questions would be either illegal or are, ideally, free from partisan loyalties and better able than Parliament or the profoundly ill-advised. An inquiry to legislatures to take a long-term view of answer the third is in the public interest. It the problem presented. Cynics decry is important to understand the distinction public inquiries as a means used by between these different types of questions, the government to postpone acting in circumstances which often call for speedy and inquiries, because their consequences are action. Yet, these inquiries can and do very different. fulfill an important function in Canadian

16 Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada — Krever Commission), [1997] S.C.J. No. 83 at para. 34.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 24 society. They are an excellent means of that the inquiry was designed to restore informing and educating concerned confidence in the integrity and institutions members of the public.17 of government or to review the regime governing the conduct of public officials. But Justice Cory goes on to say, Any such objectives were clearly incidental Nonetheless, it cannot be forgotten that to the central feature of the inquiry, harsh and persuasive criticisms have which was the investigation and the been leveled against them. Every inquiry making of finding of fact in respect of must proceed carefully in order to avoid named individuals in relation to a specific complaints pertaining to excessive cost, criminal offence.20 lengthy delay, unduly rigid procedures or The majority also found that: lack of focus. More importantly for the purposes of this appeal is that risk that [t]he Commissioner need not make commissions of inquiry, released from findings of guilt in the true sense of the many of the institutional constraints word for the inquiry to be ultra vires the placed upon the various branches of province. It suffices that the inquiry is government, are also able to operate free in effect a substitute police investigation from the safeguards which ordinarily and preliminary inquiry into a specific protect individual rights in the face of allegation of criminal conduct by named, government action.18 private citizens.21 Clearly, courts will be guided by the terms In Re Nelles at al. and Grange et al., a of reference of the inquiry, as well as by its unanimous Ontario Court of Appeal, quoted scope. The Court struck down the inquiry in with approval the words of Justice Riddell of the Patti Starr case.19 There the focus of the the Ontario Court of Appeal from the 1930’s: Court was on the terms of reference for that A Royal Commission is not for the inquiry which clearly paralleled the wording purpose of trying a case or a charge against of the Criminal Code of Canada, and referred anyone, any person or any institution directly to the conduct of specific individuals. — but for the purpose of informing the people concerning the facts of the matter In the Patti Starr case, the majority of the to be enquired into... The object of a Supreme Court of Canada found that: Royal Commission is to determine facts, [n]o broader policy objective was present not to try individuals or institutions, and to distinguish that inquiry from a this consideration is sufficient to guide the substitute police investigation… Neither Commissioner in the performance of his 22 the terms of reference nor the background duty. facts leading up to the inquiry indicated

17 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] S.C.J. No. 36 at para. 62 [Westray]. 18 Ibid. at para. 65. 19 Starr v. Houlden, [1990] S.C.J. No. 30. 20 Ibid. at 1368–1369. 21 Ibid. at 1369. 22 Re Nelles et al. and Grange et al. (1984), 46 O.R. (2d) 210 at 215 (C.A.).

Lessons to be Learned Page 25 The Court went on to say: in the calling of an inquiry should now affect A public inquiry is not the means by its scope. Governments said for years that which investigations are carried with they were concerned that the holding of an respect to the commission of particular inquiry might affect first the investigation of crimes... Such an inquiry is a coercive the bombing, and then the trials of Reyat, procedure and is quite incompatible with Malik and Bagri. Now that those particular our notion of justice in the investigation of a particular crime and the determination trials are over, the families are understandably of actual or probably criminal or civil impatient that timeliness would be used as responsibility.23 an argument against the very holding of an and further: inquiry. The passage of time does not change This inquiry should not be permitted the need for an inquiry, but it does inevitably to become that which it could not have affect its terms of reference and its focus. legally been constituted to be, an inquiry The great distance of time is important to determine who was civilly or criminally because government policies have changed, responsible for the death of the children, practices have been amended. Many of the or, in the circumstances of this case in lay language simply: who killed the children.24 individuals involved in aspects of the case have retired, left public service, or died. Thus, The law is clear. It is not possible to the scope of any inquiry should focus much establish an inquiry that would attempt more on what government departments, and to answer the question: Who is criminally central agencies have actually learned, how responsible for killing the passengers and crew have they changed, and what further changes of Air India Flight 182? are needed, than on a micro-examination As noted above, Justice Josephson of decisions made twenty years ago. The has established the identity of two of the alternative would be a massive, multi-year conspirators. There are others, and a renewed undertaking that would immediately become criminal investigation is attempting once embroiled in extensive litigation. Looking so more to find these individuals and bring them intensively at the past would do little to assist to justice. Their identity and prosecution is a enhancing security and prevention now and matter for the police, not for an inquiry. tomorrow — which look to the future. Given the principle that an inquiry To invoke the words of Justices Riddell cannot establish civil responsibility and the and Cory, a commission of inquiry is not a fact that a great length of time has passed court and it is not a trial. Its purpose is to between now and the bombing, I am led establish facts, and to learn from them. It is to conclude that an inquiry focused on not to try either individuals or institutions. individual conduct by government, security Excessive cost, lengthy delay, unduly rigid and police officials would be ill-advised. procedures and lack of focus are all to be Many will feel it a cruel irony that the delay avoided.

23 Ibid. at 215–216. 24 Ibid. at 217.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 26 The internal practices of both the RCMP guilty” in the criminal context. That remains and CSIS with respect to this investigation an avenue open to exploration by the victims’ continue to involve matters of national families if they feel it is warranted. security. While the average traveler may We should not establish an inquiry to go discern the rough outlines of the security over ground that has already been reviewed techniques currently in use at Canadian extensively. As I have described in this airports, many of the operational details of report, much has been set out in various those processes must be kept confidential, commissions and reports that needs to be lest their disclosure provide a road-map for summarized and understood, not re-tried those who seek to evade scrutiny. Important or re-litigated. An inquiry that is too open aspects of any review must, therefore, be ended, or which attempts to answer the conducted in camera, and not in public. It wrong questions, would be derailed quickly. is better that this reality be faced now rather It would raise the false expectation that an than in the middle of the inquiry. There is a inquiry can “find out who did it” or “bring public interest in knowing what happened, those responsible to book”. and in understanding what lessons have been Finally, there are issues of effectiveness, learned, and what further lessons need to be cost, timeliness and complexity. Some have learned. There is also a legitimate interest said that with a tragedy of this kind “money in protecting national security, and the should be no object”. But this misses the reputational interest of individuals who have point that the public has a legitimate right been engaged in public service. Under no to ask that whatever is done is carried out circumstances should any inquiry be either as efficiently and effectively as possible. The seen, or constructed, as a punitive exercise. families have expressed a strong desire that Criminal responsibility is established whatever is done be done with some urgency, in a criminal trial, and nowhere else. It is and that it should be effective. As more a given that whatever inquiry or review is than one family member stated: “the best conducted cannot conflict with an ongoing memorial for our loved ones is that we should police investigation. An inquiry cannot learn lessons and make sure nothing like it retry those acquitted in a criminal trial. The ever happens again.” RCMP investigation into the bombing, and Families and many others have expressed other acts of violence that they believe to a strong concern that an inquiry not become be associated with it, continue and indeed a “circus of lawyers”, that it be timely, and must be continued. If there are charges, they that it produce results. I agree. The best way should be dealt with in a court. to respect those who died at the hands of There are also examples in Canada and terror is to make sure that we learn from this other countries of the victims of crime experience and shed a light on error with a pursuing civil remedies against those deemed view to improve security and provide better civilly responsible for the death of their loved protection to the public. ones, notwithstanding a finding of “not

Lessons to be Learned Page 27 Any inquiry has to meet the essential test and the future as about the past. There is a of the public interest. While the concerns, need for a clear public reckoning with what frustration, anger and anxiety of the families has happened. In my work, I encountered an of the victims of Air India have to be carefully entirely legitimate anger that this tragedy has considered, it is the interest of all Canadians been insufficiently understood and embraced that are paramount when considering what as a Canadian event. The Air India bombing kind of inquiry should be held. A further was Canada’s introduction into the modern inquiry must be as much about the present age of terrorism. Have we learned its lessons?

Outstanding questions with respect to the bombing of Air India Flight 182 Page 28 9. Options

In my terms of reference, I have been asked The disadvantages of this form of review specifically to provide the government with are the following: options with respect to further a review or • insufficient independence from the very inquiry. The options would appear to be as government organizations under review follows. • a risk that the work of the task Option 1 — force will get bogged down and lack momentum A Governmental Task Force • an absence of an independent third First, a governmental task force to ensure party examination and narrative that the lessons learned from the Air India • a risk that accountability would be bombing have been applied effectively to inadequate Canadian institutions and public policy could be established. This task force could be Option 2 — chaired by a person from outside government, A Cabinet Order in Council or by a senior public servant. It could also A second option would be to establish an consist of deputy ministers and heads of inquiry under Cabinet Order in Council, agencies including: the Deputy Ministers with a clear mandate to report within a of Foreign Affairs, Public Safety and certain time with respect to the issues that Emergency Preparedness, Transport, Justice, have been identified, giving the commission Immigration and the Director of CSIS and latitude to decide what part of its work would the Commissioner of the RCMP. be held in camera, and which aspects would The job of the task force would be to be public. This review would not be held ensure that the issues described in this report under the Inquiries Act. The commissioner have, in fact, been dealt with by governmental would be independent of the government, agencies. Regular implementation reports and would have independent counsel, staff, could be made public, and an open dialogue and a guaranteed budget. This option would with the families of victims and other be similar to Ontario provincial inquiry interested parties would continue. into the Bernardo police investigation, The advantage of this form of review carried out by Justice Archie Campbell of is that it is closely connected to the the Ontario Superior Court of Justice in administration and policy of government 1995–96. The Bernardo Inquiry was carried and as such has the potential to lead to out swiftly and led to significant changes rapid changes within these agencies and/or in administrative practice. Consultation organizations. with the families could be carried on as in the first option. The advantage of this

Lessons to be Learned Page 29 approach is its relative flexibility compared under the first two options outlined above, to the Option 3 discussed below. While a but focus in the terms of reference and commissioner appointed under such an order direction in the Order in Council with would lack subpoena powers as set out in respect to procedure could alleviate this the Inquiries Act, this could be remedied by concern to some extent. clear directions from responsible Ministers The disadvantages of this approach would and heads of agencies with respect to co- be: the complexity of issues of standing; operation and full disclosure, and indeed the formal and adversarial nature of these would have to be a condition precedent to proceedings as they have been conducted in its establishment. If such an inquiry were the past; the cost, relative to the benefits; the to be constituted, it should proceed on the risk of impact on the criminal investigation. basis of a definitive ministerial commitment, Each of these points is significant. A on behalf of all departments and agencies generous interpretation of standing could involved, to produce all available documents, complicate matters considerably, and would files and records, and, to the extent possible, very definitely prolong the proceedings. knowledgeable government employees Most major public inquiries have involved to allow the inquirer to fulfill his or her challenges and judicial reviews of various mandate. These conditions could be set out decisions of the commissioner. The costs in the order in council. of such inquiries are difficult to predict, because of the issues set out above. Finally, Option 3 — A Public Inquiry the compatibility with the ongoing criminal A third option would to be to appoint a investigation remains a serious issue. The Commission of Inquiry under Part I of the charges in this case are the most serious Inquiries Act, with full powers of subpoena. It imaginable. Anything that created additional is a reasonable assumption that an inquiry of problems would be deeply counter- this kind could be more complex, expensive productive. and lengthy than any inquiry established

Outstanding questions with respect to the bombing of Air India Flight 182 Page 30 10. Recommendation

The Terms of Reference of the appointment length of possible delay and unduly rigid of the Commission would have to be clearly procedures, and the potential for lack of defined under either Option 2 or 3. The focus, my equally strong recommendation is focus of any inquiry should not be the that this inquiry should be seen as a policy conduct of individuals, but rather the answers inquiry. This will have implications for the to the specific questions set out above. My inquiry’s make-up, procedures, terms of recommendation is that a single, independent reference and approach. commissioner should conduct the review, Whichever model is chosen, the families and that the terms of reference of the inquiry should be provided with the necessary should refer directly to the need for a timely resources to have input into the inquiry. and efficient conduct of the inquiry. I would also recommend that the There are advantages and disadvantages government move with dispatch. Canadians to each option. On balance, my need the assurance that the lessons from recommendation to the Minister would be to this act of terrorism have been profoundly pursue the second option, an order in council learned, and are being rigorously applied to inquiry, provided specific assurances can be current public policy. They have waited long provided that full information and disclosure enough. will be provided to the commissioner. If there In closing, I want to thank the is any doubt as to the level of co-operation government for giving me this opportunity. It being received from any government agency has been a challenge, first because providing or department, the additional powers of public policy advice in an area so fraught subpoena can always be provided if necessary. with emotion and conflict is difficult, second Speed, flexibility, independence, and focus because the intellectual puzzle shrinks in on the lessons to be learned should be at the comparison to the courage and example of heart of the design of the inquiry. those citizens who lost so much. There is an The Air India bombing was a catastrophic Irish saying that at times the world can break event in the history of this country. As Justice your heart. That certainly happened on Cory pointed out in Westray, inquiries “fulfill June 23, 1985. an important function in Canadian society” A few days before completing this report as they “are an excellent means of informing I was visited by a family member who left and educating concerned members of the me a smiling photograph of an 11 year old public.”25 However, in light of the questions girl, his sister, KiranJit Rai. She was killed that have already been answered and the on Air India Flight 182. He also showed me legitimate concerns regarding excessive cost, the letters his parents had received from her

25 Westray, supra note 17.

Lessons to be Learned Page 31 classmates at King George Public School. this is a profoundly Canadian event. Some They speak of a young girl full of fun, of its perpetrators have been apprehended intelligent, beautiful. They wanted to let or killed; others are still at large. A twenty- her parents know that “the whole school is year police investigation continues, and our crying”. I have that picture on my desk to search for answers, and for justice, can never remind me what this has been all about. stop. The inquiry I am recommending will KiranJit and 330 others were murdered by not provide “closure” for the families or for people living in Canada. They may have been anyone else. But it should provide us with assisted by people from other countries, but further insight and better practices.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 32 Appendix 1 TERMS OF REFERENCE Independent Advisor to the Minister of Public Safety and Emergency Preparedness on Outstanding Questions with respect to the Bombing of Air India Flight 182

Context Mandate The Air India bombing remains the worst The mandate is to provide independent terrorist incident in Canadian history. It is advice to the Minister of Public Safety and a tragedy felt by all Canadians, in particular Emergency Preparedness on whether there those who lost family members and friends. are outstanding questions of public interest In the years since 1985, there have been with respect to the bombing of Air India a number of domestic and international Flight 182 that can still be answered given investigations, inquiries and legal proceedings the passage of time and sets out the options which have led to many improvements in for addressing any such questions. In order Canada’s public safety and transportation to provide the best possible advice, the security systems. Independent Advisor will be mandated to: The Minister of Public Safety and 1. Review material related to the Air India Emergency Preparedness wants an tragedy, including independent person to provide her with • Domestic and international advice on what remains to be learned about proceedings this tragedy. She wants this advice based • The findings and recommendations on a review of the various reports and of investigations and inquiries such recommendations, as well as interviews with as those by the Security Intelligence government officials about steps taken to Review Committee (SIRC) and the strengthen public safety and transportation Canadian Aviation Safety Board security systems. She also wants this person • Transportation and security to consult family members, continuing (including law enforcement and the dialogue she started with them on intelligence) measures taken by outstanding questions. Finally, she would Government of Canada departments like advice on options for addressing any and agencies since 1985 outstanding questions. The Minister has underlined that she is 2. Consult with relevant persons, open to considering all options for moving including family members of the forward, once she has received advice from victims of the Air India bombing, the eminent person. government officials including officials from the British Columbia Attorney General.

Lessons to be Learned Page 33 3. Provide to the Minister a written • Establishes whether there are any report on the issues of public interest outstanding questions of public surrounding this matter that: interest that can be answered today • Ascertains the questions and answers • Advises on options for addressing that have already been determined in such outstanding questions whole or in part

Outstanding questions with respect to the bombing of Air India Flight 182 Page 34 Appendix 2 MEETINGS

Members of the 9/11 Public Discourse Zuhair Kashmeri Project Roderick Macdonald Air Canada Officials Prime Minister Paul Martin Jeanne Bakermans Canadian Ambassador to the US, Warren Bass Frank McKenna Kim Bolan Anne McLellan, Deputy Prime Minister and Mr. Justice Archie Campbell Minister of Public Safety and Emergency Honorable Gordon Campbell, Premier Preparedness Canada Canadian Air Transport Security Authority Wally Oppal, B.C. Attorney General Hon. Ujjal Dosanjh Prime Minister’s Office Family Members of the Victims of Air India Dennis Richardson, Australian Ambassador Flight 182 to Washington, D.C. and former Max Fawcett Director-General of Australian Security Federal Bureau of Investigation Intelligence Organization Foreign Affairs Canada Indian Foreign Minister Singh Guru Nanak Gurdwara Executive — Daniel Sutherland, U.S. Department of Surrey, B.C. Homeland Security Dave Hayer, M.L.A. (Surrey-Tynehead) Transport Canada Justice William Hoyt, Bloody Sunday Vancouver International Airport Authority Inquiry, UK. World Sikh Organization International Civil Aviation Organization Robert Wright and associates at the Salim Jiwa B.C. Crown Office Jim Judd, and other officials of the Canadian Giuliano Zaccardelli, Gary Bass and other Security Intelligence Service members of Royal Canadian Mounted Department of Justice Police

Lessons to be Learned Page 35 Appendix 3 CHRONOLOGY OF AVIATION TERRORISM 1948–2001

Source: Gero, David, Flights of Terror — 1961 Aerial Hijack and Sabotage Since 1930 (1997) • First ever United States aircraft hijacked and forced to fly to Communist Cuba. 1948 Puerto Rican born Abntulio Ramirez Ortiz • Hijacking of CSA flight from Prague to forced the National Airlines Corvair 440 Bratislava. to fly to Havana at gun point and was then 1949 given asylum. He was jailed for twenty • Canada — September 9th, Quebec years when he returned to the US in 1975. region, near Sault Au Cochon, Quebec: 1965 a bomb exploded in a forward baggage • Seven British children were injured when compartment of a Quebec Airways a grenade was thrown at the Aden airport (Canadian Pacific) DC-3; 23 people died. terminal in Yemen. 1956 1965 • New Greek Cypriot EOKA bombing • Canada, British Columbia, Canadian campaign starts against British rule in Pacific Airlines Douglas DC-6B, mid-air Cyprus leading to the destruction of collision, believed to be a sabotage act, all a British aircraft at Nicosia airport on 52 people died. 3 March and a Dakota on 27 April 1956. Violence continues for four years until 1966 Cyprus is granted independence. • El Condor nationalists hijack Argentine aircraft from Buenos Aires to the British 1959 ruled Falklands in a bid to bring attention • The hijacking of a Pan Am flight during to Argentina’s claim to the islands. They the coup in Peru hijacking of a Cuban eventually surrendered their hostages and internal flight by Raule Castro in 1959 were returned to Argentina by the British as the first political hijacking. authorities. • Cuban airliner hijacked by the Twenty- • A DC-3 aircraft was blown up in mid-air Sixth of July Movement and forced to near Aden, Yemen, killing all twenty-eight attempt night landing in remote airfield people on board. The bomb was placed in in Cuba. The aircraft crashed killing the baggage area of the aircraft. seventeen of the twenty people on board.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 36 1967 1969 • An aircraft carrying Katangan rebel leader • Palestinian terrorists attack El Al Moise Tshombe was hijacked en route to Boeing 707 on runway at Zurich airport, Ibiza, Spain, and forced to land in Algeria Switzerland, raking the fuselage with in a bid to extradite him to his native gunfire, killing the pilot and three Congo. The Algerians kept him under passengers. An Israeli sky marshal/security house arrest until he died two years later. guard returned fire killing one of the • A British European Airways Comet aircraft terrorists. was destroyed by a bomb, which detonated • A TWA aircraft hijacked by Popular Front in the passenger cabin over Rhodes, for the Liberation of Palestine terrorists Greece. All 66 people on board were killed. after taking off from Rome, Italy, and forced to fly to Damascus, Syria. All of 1968 the passengers and crew were released • A Delta Airlines DC8 was forced to fly unharmed but the terrorists exploded a to Havana, Cuba, in the first successful bomb in the cockpit of the aircraft. hijacking of a US commercial airliner since 1961. The hijacker was granted political 1970 asylum. • Three Arab terrorists attempted to hijack • Popular Front for the Liberation of an El Al Boeing 707 at Munich airport, Palestine seized an El Al Boeing 707 in Germany, but are thwarted by the pilot Rome, Italy, and diverted it to Algeria. who grappled with a terrorist in the 32 Jewish passengers were held hostages terminal lounge. An Israeli was killed and for five weeks. eleven others wounded. • An Israeli was killed in a Popular Front for • “Skyjack Sunday” took place at Dawson the Liberation of Palestine machine gun Field, Jordan. TWA, Swissair, BOAC attack on El Al aircraft at Athens airport, aircraft, along with more than four Greece. Two terrorists were captured but hundred hostages, were hijacked and later released by the Greek government ordered to the Jordanian airport by after a Greek aircraft was hijacked to the Popular Front for the Liberation of Beirut. Three days after the Athens attack, Palestine. Another terrorist team tried Israeli commandos raid Beirut airport, to hijack an El Al Boeing over London Lebanon and blow up 13 Arab airliners but security staff foiled the attempt. The worth $43 million. German, Swiss and British Governments all agreed to the PFLP’s demands and released a number of terrorists held in their jails.

Lessons to be Learned Page 37 1971 • A Trans-World Airlines jet with 88 people • Canada — A terrorist allegedly hijacked aboard crashed off the coast of Greece Air Canada Flight 932 while the plane following an explosion in the baggage was in Thunder Bay, Ontario, to Toronto. compartment. The attack was the work He allegedly brandished a handgun and a of the Popular Front for the Liberation grenade and demanded to be flown to Cuba. of Palestine. (Source — TC’s Intelligence Branch). 1972 • Israeli commandos stormed a hijacked 1975 Belgian Sabena aircraft at Ben Gurion • Arab terrorists attacked Orly airport, Paris, airport, Israel. Four Palestinian Black France, seizing ten hostages in a terminal September terrorists on board the aircraft bathroom. Eventually the French provided were killed and the hostages freed. One the terrorists with a plane to fly them to passenger and five Israeli soldiers were Baghdad, Iraq. killed. 1976 • The Popular Front for the Liberation of • An Air France aircraft was hijacked by a Palestine and Japanese Red Army terrorists joint German Baader-Meinhof/Popular opened fire in the passenger terminal of Front for the Liberation of Palestine Lod Airport, Israel. 26 civilians were killed terrorist group and its crew were forced to and seventy-eight wounded. fly to Entebbe airport in Uganda. Some 1973 two hundred and fifty eight passengers and • A Black September suicide squad attacked crew were held hostage but all non-Israeli the passenger terminals at Athens passengers were eventually released. On airport, Greece, killing three civilians and 4 July Israeli commandos flew to Uganda injuring 55. and rescued the remaining hostages. All of • Palestinian terrorists bomb a Pan Am the terrorists were killed in the rescue, as office at Fiumicino airport, Rome, Italy. were three passengers and one commando. 32 people were killed and 50 injured. The • Popular Front for the Liberation of terrorist then took seven Italian policemen Palestine and Japanese Red Army terrorists hostage and hijacked an aircraft to Athens, attacked a passenger terminal at Istanbul Greece. After killing one of the hostages, airport, Turkey, killing four civilians and they flew on to Kuwait. The terrorist injuring twenty. eventually surrendered. • A TWA aircraft en route from New York, United States, to Paris, France was hijacked 1974 by Croatian terrorists, seizing 93 hostages. • A British DC-b aircraft was hijacked at The terrorists surrendered in Paris and Dubai, UAE, by Palestinian Rejectionist released their hostages. Front terrorists. The aircraft was flown to Tunisia where a German passenger was killed.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 38 • A New York policeman was killed by a • An Air Florida flight from Key West to bomb left by the terrorists in a locker in Miami, United States, was hijacked by Grand Central Station. seven Cubans and flown to Cuba, where they released their hostages and were taken 1977 into custody. Six further US aircraft were • Four Palestinian terrorists hijacked a hijacked to Cuba over the next month. All German Lufthansa Boeing 737 and the passengers were released unharmed. ordered it to fly around a number of • Three passengers were killed when Cubans Middle East destinations for four days. hijacked an aircraft in Peru and demanded After the terrorists killed the plane’s pilot, to be flown to the United States. the aircraft was stormed by German GSG9 • The president of United Airlines was counter-terrorist troops, assisted by two injured in a bomb attack in Chicago, British Army Special Air Service soldiers, United States, that was blamed on the when it landed at Mogadishu, Somalia. All Unabomber. the ninety hostages were rescued and three • Four Iranian hijackers were killed when terrorists were killed. Turkish security forces stormed a hijacked 1978 Turkish Airlines aircraft after it landed in • An aircraft was hijacked at Larnica airport, eastern Turkey. The terrorists killed one of Cyprus by Arab terrorists who had just the 155 hostages. murdered a leading Egyptian publisher 1984 at a nearby hotel. After being refused • A Kuwaiti aircraft was hijacked en route permission to land at a number of Arab to Pakistan from Dubai by Iranian backed capitals the hijackers returned to Larnica. Iraqi Shia terrorists. The aircraft was forced Egyptian commandos landed and tried to to land in the Iranian capital, Tehran, attack the plane but resulted in a gun battle after two Americans had been killed. with Cypriot troops. Fifteen Egyptian The terrorists surrendered to the Iranian troops, seven Cypriot soldiers and a authorities and were later released. German cameraman were killed. • An El Al stewardess was killed when the 1985 crew bus ambushed by the Popular Front • A Red Army Faction bomb exploded for the Liberation of Palestine terrorists at Frankfurt Airport, Germany, killing outside the Europa Hotel, London, three people. England. • 12 people were injured in a bomb explosion on an American Airlines flight in the United States. The so-called Unabomber is held responsible for the incident.

Lessons to be Learned Page 39 • A TWA Boeing 727 was hijacked en route • 98 passengers and crew of an Egypt Air to Rome, Italy, from Athens, Greece, aircraft were held hostage by Palestinian by two Lebanese Hezbollah terrorists terrorists at Luqa, Malta. Five passengers and forced it to fly to Beirut, Lebanon. were shot by the terrorists and two The eight crew and one hundred and died. An assault by Egyptian Force forty five passengers were then held for 777 commandos resulted in some seventeen days, during which time one 57 passengers being killed when the of the American hostages was murdered. terrorists set off explosives in the aircraft. After being flown twice to Algiers, on • A suicide grenade and gun attacks against the aircraft’s return to Beirut the hostages passenger terminals at Rome and Vienna were released after the US Government airports by the Abu Nidal terrorist group pressured the Israelis to release four resulted in 16 people being killed and hundred and thirty five Lebanese and more than 100 civilians being injured. Palestinian prisoners. • A Pan Am 747 was seized by Arab terrorists • TWA Flight 847 was hijacked over the in Pakistan. They killed seventeen hostages Mediterranean, the start of a two-week and wounded another 127 after panicking hostage ordeal. The hijackers, linked and thinking they were under attack. to Hezbollah, demanded the release of Pakistani security forces then stormed the prisoners being held in Kuwait as well as aircraft and freed the hostages. the release of 700 Shiite Muslim prisoners 1988 being held in Israeli and Lebanese prisons. • 122 people were held hostage after a A US Navy diver was killed and 39 Kuwaiti Boeing 747 was hijacked and passengers were held hostage when the diverted to Mashad, Iran, before flying demands were not met. The passengers on to Cyprus. The Kuwait Government were eventually released in Damascus after refused requests by the Iranian-backed Shia being held in various locations in Beirut. hijackers to release 17 convicted terrorists. • An Air India Boeing 747 was destroyed by After 15 days the hijackers were granted a bomb over the Atlantic, killing all three asylum in Algeria and released their hundred and twenty nine people on board hostages unharmed. the aircraft. Sikh terrorists were blamed • A Pan Am Boeing 747 was blown up for the attack, which was the worst single over Lockerbie, Scotland, by a bomb terrorist incident to date. believed to have been placed on the • Two cargo handlers were killed at Tokyo aircraft at Frankfurt Airport, Germany. All [Narita] airport when another bomb 259 people on the aircraft were killed by [attributed to Sikh extremists] placed in a the blast which has been attributed to a bag offloaded from a CP Air flight arriving number of Middle Eastern terrorist groups. from Vancouver, and en route for an Air Two Libyan intelligence operatives were India flight] exploded [in the transit area]. committed in connection with this attack.

Outstanding questions with respect to the bombing of Air India Flight 182 Page 40 1989 • An Ethopian Airways Boeing 767 was • 127 people were killed when a French hijacked en route from Addis Adaba to UTA aircraft exploded in midair over Niarobi and diverted to Australia. It ran Niger. The French government issued out of fuel and crashed into the Indian warrants for the arrest of four Libyans. Ocean near the Comoros Islands killing 123 people. Fifty-two people including 1994 two hijackers survived. • Rwandan president Juvenel Habyarimana was killed when his aircraft was shot down 1998 by surface-to-air missile while approaching • A Spanish Boeing 727 aircraft was hijacked Kigali airport, Rwanda, on his return from on an internal flight, with 130 people on a regional government leaders meeting. board. All were eventually freed unharmed The incident sparked a massive outbreak of after the single hijacker gave himself up. ethnic violence that resulted in more than • An Air France Flight 8969, bound for a million people being killed. Paris from Algiers, was hijacked by the • An Air France Airbus was seized by Algerian terrorist organization Armed Algerian Islamic terrorists and forced to Islamic Group (GIA). The four hijackers fly to Marseilles airport, France. All of the boarded the aircraft disguised as Air terrorists were killed when French CIGN Algerie security staff. Authorities delayed counterterrorist troops stormed the aircraft departure, but were intimidated into and rescued the 170 passengers and crew, giving the go-ahead when the hijackers 16 of whom suffered minor injuries. killed 2 of the 227 persons on board. The French government decided not to allow 1996 the aircraft to approach Paris because its • Two Cuban MiG fighters shot down a light consulate in Oran, Algeria, had received aircraft flown by four Cuban exiles of the an intelligence warning that the hijackers “Brothers to the Rescue” organization over intended to blow up the aircraft over the Gulf of Mexico. Paris. The flight crew convinced the • Six Iraqi dissidents hijacked a Sudan hijackers that refueling in Marseille was Airways A3l0 Airbus airliner en route required. After the aircraft touched down from Khartoom to Jordan and divert it to hours of negotiations ensued, whereupon Stansted, England. After negotiating with the terrorists demanded fuel. French British authorities the hijackers released police commandos (GIGN) stormed the all of the 13 crew and 180 passengers aircraft and after a 20 minute gunfight unharmed. successfully rescued the 161 remaining passengers (some had been released during negotiations) and 3 flight crew.

Lessons to be Learned Page 41 2001 aircraft was deliberately flown into the side • Four passenger jets were hijacked and two of the Pentagon building in Arlington, of them were deliberately crashed into Virginia. The fourth aircraft was crashed the towers of the New York World Trade into the ground outside of Pittsburgh. Centre. Both 110-storey buildings were There were reports that that aircraft demolished within an hour after impact, was headed for the White House of the killing more than 2,800 people. The third US Capitol building.

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