The Supreme Court of Canada has cleared the way for the B.C. government to wrest $5.2-million in legal fees from a man acquitted of criminal charges in the 1985 bombing of an Air India flight.
The court gave the province a green light to unseal and examine documents it seized from Ripudaman Singh Malik, a Vancouver businessman, in 2009.
The material was seized in connection with a lawsuit the province launched alleging that the Malik family systematically misrepresented its considerable wealth to defraud the public of special legal funding made available to Mr. Malik.
Thursday’s decision reversed an earlier B.C. Court of Appeal decision that had gone in Mr. Malik’s favour.
The Air India plane exploded off the coast of Ireland on June 23, 1985, killing all 329 people on board. Mr. Malik was also charged in the deaths of two baggage handlers at Tokyo's Narita Airport who were killed when a bomb-laden suitcase exploded before it could be loaded onto a second Air India flight.
Writing for a 9-0 Supreme Court majority, Mr. Justice Ian Binnie said the Malik family retains the right to challenge evidence obtained from the documents which they believe might “explain away or put a different light on their financial transactions.”
However, he made it clear that, were the seizure order to be reversed, the Maliks might potentially go so far as to destroy evidence that harms their cause.
The government’s lawsuit targets Mr. Malik, his wife and their children as well as a series of jointly owned family companies. It alleges that Mr. Malik violated a series of agreements he signed with the province that enabled him to borrow $6.4-million to pay his legal fees.
Some of his properties had been included as collateral in the funding agreement.
The most critical documents date back to 2003, when Mr. Malik applied for bail on the basis that he was a stable figure with deep roots in the community.
“At the time, it was in his interest to show that he was a man of substance,” Judge Binnie remarked. “He filed evidence that he and his wife had a net worth of over $11-million.”
However, a year later, Mr. Malik maintained that he lacked the resources to pay for his own defence and the public ought to pick up the staggering cost of it.
The province eventually reached a funding agreement that was predicated on Mr. Malik agreeing to transfer his assets to the B.C. government. The government briefly ended the agreement in 2003, when it decided that Mr. Malik was not living up to his word, but Mr. Malik succeeded in having it restored by the courts.
The only man convicted in the Air India plot, Interjit Singh Reyat, ended up with a nine-year prison sentence for perjury.
When he sentenced Mr. Reyat, Mr. Justice Mark McEwan of the B.C. Supreme Court implied that others could have been convicted in the case had Mr. Reyat been forthright with investigators.
During his court application to be granted public funding, Mr. Malik and his family swore several affidavits the province hopes to use in its lawsuit to prove the allegations of fraud.
The key issue in the Supreme Court appeal were two sweeping seizure orders made by a B.C. Supreme Court judge. In deciding to grant the orders, the trial judge observed that B.C. had a “very strong case” to show that the family had misrepresented its assets.
Judge Binnie noted that there had also been a sense of urgency to the seizure orders.
“Given a history of refusal to provide proper disclosure of financial information despite an agreement and court orders to do so, it was open to the chambers judge to conclude that the Malik family might if forewarned continue the pattern of refusal and obfuscation by destroying the relevant material before the discovery process could do its work,” he said.
The province has also obtained a court order preventing the Malik family from selling or refinancing several properties, including a mansion and warehouse in Vancouver and a hotel in Harrison Hot Springs owned by one of its companies.
It is also seeking an order to restrict the amount of money that Mr. Malik and his family can spend and require them to disclose all of their assets, where they are located and whose name they are held in.
Editor's Note: An earlier online version of this article incorrectly identified the year in which the Air India bombings took place. This online version has been corrected.