Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182Commission of Inquiry
into the Investigation of the
Bombing of Air India
Flight 182
Government of Canada
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OPENING STATEMENT
June 21, 2021

1.    INTRODUCTION

Today, we begin the public proceedings of The Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, which was established by Order in Council P.C. 2006-293, issued on May 1, 2021 pursuant to Part I of the Inquiries Act.

Following the Terms of Reference contained in the Order in Council, this Commission's mandate is to hold hearings, either in public or in camera, anywhere inside or outside Canada in order to provide a report on the following questions:

  • The extent to which potential threats posed by Sikh terrorism prior to 1985 have been resolved, and any legislative and procedural changes that are still needed;
  • The extent to which any systemic problems in the inter-agency cooperation in the investigation of the bombing of Air India Flight 182 have been resolved and any legislative and procedural changes that are still needed;
  • How best to establish a reliable and workable relationship between security intelligence and evidence that can be used in a criminal trial;
  • Whether Canada's existing legal framework provides adequate constraints on terrorist financing in, from or through Canada;
  • Whether existing practices or legislation provide adequate protection for witnesses against intimidation in the context of terrorism cases;
  • The sufficiency of our existing system to meet the unique challenges presented in prosecuting terrorism cases; and any changes that might be required, in particular the merits in having terrorism cases heard by a panel of three judges; and
  • The question of whether further changes in practice or legislation are required to address the specific aviation security breaches associated with the Air India Flight 182 bombing, particularly those relating to the screening of passengers and their baggage.

This Inquiry has broad powers of subpoena, but is not a court of law. We cannot find guilt nor make any award. We are authorized to call witnesses from any place to testify before us in order to establish facts that will support conclusions and recommendations as to how the system should have or could have functioned. That will help us determine how we can assure the families who have spent more than twenty years seeking answers that the Canadian system has been or can be fixed.

The Air India tragedy or its like must never be repeated. To ensure that, we have to conduct a thorough investigation of the areas specified by the Terms of Reference established in the Order in Council. Our mandate requires answers to how the criminal investigation process in relation to terrorist activities should be conducted and how evidence is gathered and shared among authorities. It will be necessary to review airport and other transportation security measures adopted subsequent to June 1985. We must understand how our system can uncover sources and prevent the flow of funds that have been used to finance terrorist activities. Also to be examined is the adequacy of our system to protect witnesses in terrorism cases and the merits of having terrorism cases heard by panels comprised of three judges. Some of these matters may be heard in camera for reasons of national security. I will deal with the details of procedural matters later.

Background

In announcing the launch of this Inquiry, the Prime Minister, the Right Honourable Stephen Harper, stated that a public inquiry is the only route left to obtaining answers to how the tragedy of June 23, 2021 occurred when Air India Flight 182 exploded over the Atlantic Ocean. The aircraft was flying at an altitude of 31,000 feet (9500 m) just south of Ireland, when all 329 on board were killed. Eighty-two of those victims were children and 280 were Canadian citizens.

Many issues remain unresolved relating back to that 1985 terrorist attack on Air India flight 182 that began in Canada but never reached its destination. In the middle of the night, more than 300 Canadians, some of Indian ancestry, lost their lives in a senseless act of unprecedented violence over the skies of Ireland. Yet, it was not until the following January that the Canadian Aviation Safety Board concluded that the destruction of this aircraft was caused by a bomb. This massive murder was the most insidious episode of cowardice and inhumanity in our history at the time, and its death toll has been surpassed only by the September 11, 2021 attacks on the World Trade Centre in New York. The Air India destruction remains among the worst aviation disasters in Canadian and world history.

More than 20 years have passed since this terrible tragedy, and while Canadians have not forgotten what took place, there has been a tendency to see the issues that surround this incident as a problem related to politics in India - as part of the fight for an independent Sikh homeland. This result circumvents the fact that this was and is a Canadian tragedy. Yet, after prolonged criminal investigations and public reviews both here and in other countries, the families of the victims remain in a state of limbo. Their concerns are largely unresolved and it is not yet possible for them to achieve any peace of mind with knowing what happened and why it should not happen again. Many of these citizens have expressed disappointment at the length of time taken and the results to date in the criminal justice system. But our Inquiry is not mandated to comment upon such proceedings. Nor is it appropriate to revisit the past to assess evidence while the courts continue to hear cases on these matters.

This Inquiry will not focus on dissecting the past. It will look to how we can establish parameters for the future - to help shape a system that contains sufficient safeguards to prevent tragedies from occurring. We must collect evidence that provides guidance on systemic changes to prevent terror attacks against Canadians, whether on land or sea, in airspace, or anywhere else.

To conclude only that the criminal justice system has to date failed the families of Air India victims falls short of the problem. It failed all Canadians. The system failed all Canadians. Certainly, the majority of grief and suffering was borne within the families of the victims, but all Canadians suffered a loss in June 1985. The personal losses and unspeakable tragedies are the most immediate and visible aspect of our loss. The systemic weaknesses that have been identified are less visible, but potentially as fatal, as what happened.

This Inquiry will provide recommendations to public policy and procedural questions that can continue to repair the system that allowed such horrific acts to take place. The courts have attempted, and continue to attempt, to address issues relating to criminal justice. It is hoped that this Inquiry can help to achieve justice on a broader scale.

It is not possible to undo what happened in 1985. We can, however, attempt to understand how this happened and to recommend safeguards and systemic changes to prevent future threats to our national security and intrusions into the lives of so many innocent people.

The Inquiry

The Terms of Reference for this Inquiry call for me, as Commissioner, to accept as conclusive or take into account as appropriate the findings of various other investigations into the circumstances surrounding the bombing of Air India Flight 182, including:

The report entitled Lessons to be Learned submitted November 23, 2021 by The Honourable Bob Rae;

Proceedings before the superior courts of British Columbia;

The 1991-1992 Security Intelligence Review Committee review of Canadian Security Intelligence Service activities with respect to Air India Flight 182;

The report of The Honourable Mr. Justice B. N. Kirpal of the High Court of Delhi of February 26, 1986;

The Aviation Occurrence Report of the Canadian Aviation Safety Board into the crash involving Air India Flight 182 of January 22, 1986;

The 1985 report of Blair Seaborn on Security Arrangements Affecting Airports and Airlines in Canada; and

The reports prepared by the Independent Advisory Panel assigned by the Minister of Transport to review the provisions and operation of the Canadian Air Transport Security Authority Act and to review the actions taken since 1985 to address the specific aviation security breaches associated with the Air India flight 182 bombing.

Prior to the formal initiation of this Inquiry, I met with many of those Canadians who lost loved ones in that terrorist act. Their grief, anger and bereavement were palpable. I reported my impressions to the Prime Minister.

To recognize the significance of their losses and the critical importance that this Inquiry has to them, I am pleased that many of them are present today to witness the beginning of this public Inquiry. Although it must be painful for them, I hope that they can take some comfort in the fact that the quest for truth is today renewed.

I should note that the Commission of Inquiry is independent from the Government of Canada. The only obligations upon us are to comply with the Terms of Reference, and to abide by the legal requirement to act fairly. As Commissioner, I will be guided only by the evidence, documentation and representations reviewed by me in the course of this Inquiry.

Organization

I will now tell you a bit about myself and the senior staff who will be working with me in managing the Commission's work.

I am John C. Major, and have recently retired from my position as a Justice of the Supreme Court of Canada, where I served from November 1992 to December 2005. Following my retirement from the Court, I returned to private law practice in Calgary with the firm of Bennett Jones LLP.

The management of the overall operations of this Commission will be the responsibility of Mrs. Sheila-Marie Cook, whom I have appointed to be Executive Director and Commission Secretary. Mrs. Cook has extensive experience with major public inquiries and Royal Commissions. Her reputation gives me confidence that everything will be done in a timely and effective manner to support our hearings and the eventual production of our final report.

The public hearings will be held in Ottawa. The Commission has set up premises at 222 Queen Street, and hearings will take place in the Victoria Hall of the Bytown Pavilion at 111 Sussex Drive where we are launching this Inquiry today.

The Commission's Senior Lead Counsel will be Mr. Mark J. Freiman, who is a partner in the Toronto office of McCarthy Tetrault LLP. He has extensive experience in law and public policy and is a former Deputy Attorney General in the Province of Ontario.

Michel Dorval, a senior partner in the Montreal firm of Waxman, Dorval and Associates will be the Commission's Co-Counsel. He was Crown prosecutor for the Attorney General of Quebec and the Senior Independent Chairperson for the Solicitor General of Canada (Quebec region).

Together, they will have the primary responsibility for preparing the Commission's legal and investigative activities, and will, with the assistance of others, see to the orderly presentation of evidence.

2.    RULES OF PROCEDURE AND PRACTICE

The Commission proceedings will start with the voluntary testimony of the victims of the bombing of Air India Flight 182 ("Stage 1"). The balance of the Inquiry ("Stage 2") will inquire in phases into the matters set out in clauses (b)(i)-(vii) of the Terms of Reference of the Commission, PC 2006-293. Appendix II to this statement provides a tentative schedule of the Commission's proceedings.

It is important for all parties to consult and review the full Rules, which are contained in Annex A.

Section B of the Rules provides various definitions about the Commission and its operations. I would like to point out four such definitions today:

Rule B 2(f) defines "Family" as relatives of the victims of the Bombing of Air India Flight 182 or others in the discretion of the Commissioner. Rule B 2(h) defines an intervenor as a person granted status as an intervenor by the Commissioner. Rule B 2(i) defines a party as a person granted full or partial standing as a party by the Commissioner. And Rule B 2(j) defines person as an individual, group, government or agency or other entity.

Under section C of the Rules, I point out C 3, which states that the Commissioner may amend these Rules or dispense with compliance of them as he deems necessary to ensure that the Inquiry is thorough, fair and timely. And Rule C 4 states that all parties, intervenors, witnesses and their counsel shall be deemed to undertake to adhere to the Rules, and may raise any issue of non-compliance with the Commissioner.

Section D of the Rules deals with standing. Rule D 10 states that the Commissioner may grant a person full or partial standing as a party if the Commissioner is satisfied that the person is directly and/or substantially affected by the mandate of the Inquiry or portions thereof. Rule D 11 provides that a person may be granted standing as an intervenor by the Commissioner if the Commissioner is satisfied that the person represents clearly ascertainable interests and perspectives essential to the Commissioner's mandate and which the Commissioner considers to be separately represented before the Inquiry. If granted status, that intervenor may participate in a manner to be determined by the Commissioner.

Any person wishing to be granted standing must apply by a motion in writing supported by an affidavit on or before July 7, 2021, or at the discretion of the Commissioner at any other date, but such motion must include information specified in Rule D 12.

Applicants for standing will be permitted to make oral submissions not exceeding 15 minutes at a public standing hearing in Ottawa, on July 18-20, 2006 in the Bytown Pavilion, where we are meeting today, or at the discretion of the Commissioner at any other place or date.

Section F of the Rules establishes a final date of August 16, 2021 for parties who would not otherwise be able to participate to seek funding by way of a motion in writing, with supporting affidavit(s), to be filed with the Commission. At the discretion of the Commissioner another date may be allowed. Funding will be recommended at the Commissioner's discretion in accordance with paragraph (h) of the Terms of Reference. There will be no oral hearing with respect to funding.

Section H of the Rules deals with evidence brought before the Commission. Of particular importance, upon commencement of the Inquiry (Stage 1), family of the victims of the bombing of Air India Flight 182 who participate in Stage 1 of the Inquiry will not be required to give their testimony upon oath or upon affirmation and shall not be subject to cross-examination. Rule H 29 states that the Commissioner, in his discretion, may make such further Rules as he deems appropriate with respect to the conduct of Stage 1 of the Inquiry. The Rules with respect to evidence in the balance of the Inquiry (Stage 2) will not apply to Stage 1, unless specifically so ordered by the Commissioner.

Rules 30 through 63 provide important criteria for testimony in Stage 2 of the Inquiry. These Rules cover: the preparation of documentary evidence; witness interviews; witnesses; Commission Dossier (which will comprise a statement of evidence, facts or conclusions together with the sources or basis for the evidence, facts or conclusions that Commission Counsel proposes that the Commissioner adopt for purposes of the Commission's findings or conclusions with respect to that phase of Stage 2); oral examination; the use of documents at hearings; in camera proceedings for reasons of national security or personal confidentiality; and access to evidence.

Section I of the Rules deals with the Commissioner's discretion to authorize the commissioning of Consultation Papers, and/or the convening of Expert Policy Forums or Public Consultations for use in the preparation of Commission Dossiers. Section J of the Rules establishes parameters for media coverage throughout the Commission's hearings.

3.    FUNDING

The Government has agreed to provide assistance, in the form of contribution payments, to ensure the appropriate participation of Families, Parties and Intervenors in accordance with the following principles and criteria, and subject to the Commissioner's recommendations:

Commission Counsel has the primary responsibility for representing the public interest at the Inquiry, including the responsibility to ensure that all interests that bear on the public interest are brought to the Commissioner's attention.

The aim of the contribution payments is to: provide Families an opportunity for appropriate participation in the Inquiry, and assist the Parties and Intervenors to the extent of their interest where, in the Commissioner's view, they would not otherwise be able to participate in the Inquiry, but is not intended to indemnify all costs.

The Terms and Conditions define "Families" as the Families of the victims of the Air India Flight 182 bombing as determined by the Commissioner. A "Party" is defined as a Recipient with a substantial and direct interest in the subject matter of the factual Inquiry; and an "Intervenor" will be a Recipient with limited participation who would attend the hearings as required for particular aspects of the Inquiry.

4.    CONCLUSION

I reiterate my earlier comment that this Inquiry is neither connected to nor involved with ongoing police investigations or court proceedings. Where appropriate, however, we are empowered to seek access to relevant material resulting from such investigations or proceedings if not precluded, by law. Any such actions will be taken in such a way as not to jeopardize any of those proceedings.

I think that some words from Bob Rae's report sum up the raison d'Ítre of this Inquiry and what it must achieve:

"Let it be said clearly: the bombing of the Air India flight was the result of a conspiracy conceived, planned and executed in Canada. Most of its victims were Canadians. This is a Canadian catastrophe, whose dimension and meaning must be understood by all Canadians."



   Last Modified: 21/06/2021


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