VANCOUVER, BC—Claiming a “miscarriage of justice,” a lawyer for Ripudaman Singh Malik was in court Monday making a last-ditch attempt to recover the legal fees paid to defend Malik in the Air India case — an amount he now claims is $9.2 million.
Bruce McLeod, a lawyer representing Ripudaman Singh Malik, one of two men acquitted in the Air India bombings, said the court had the inherent jurisdiction to make an order for costs in truly exceptional cases.
He conceded there was a “high hurdle” for Malik to meet but insisted that fairness required his client not carry the financial burden.
“This is a unique case, that was extremely burdensome on Mr. Malik as the defendant,” he told B.C. Supreme Court Justice Ian Josephson, who acquitted Malik and his co-accused, Ajaib Singh Bagri, at trial.
“The Crown charged Mr. Malik with monstrous crimes. He was acquitted in a strongly worded reasons for judgment after a trial of unprecedented length, complexity and costs. He spent four and a half years in pre-trial detention.”
McLeod told the judge that the Crown’s case at its root was based on fabricated evidence — the testimony of a disgruntled former employee of Malik who declared an intent to get back at him.
The concerns about the credibility of the witness, whose identity has been banned, should have been apparent from the outset, he said.
“Mr. Malik’s acquittal was met not with vindication but with ongoing publications in the press which disclose a reluctance to accept the clear verdict of the court of Mr. Malik’s innocence.”
The fact that the Crown’s case fell markedly short of proof beyond a reasonable doubt meant that a miscarriage of justice had occurred, he argued.
“The court cannot give back Malik the years he’s spent in prison. It cannot give back his previous good reputation. But the court does have the jurisdiction to award Malik for his legal costs.”
Following Malik’s arrest but before his trial began, the accused paid defence costs out of his pocket in the amount of $514,000 and borrowed another $525,000 from his wife, his brother and some acquaintances, said McLeod.
Then Malik sought funding from the attorney-general’s ministry, pending an application for legal assistance.
The Crown advanced $5.2 million to pay for Malik’s legal bills and the government had to go to court to enforce that agreement.
In February, after his appeals had failed, Malik paid back the $5.2 million plus interest, an amount coming to $6.3 million.
After the unsuccessful application for legal assistance, the Crown had also advanced funds to Malik on mortgages and other securities amounting to $1.6 million.
McLeod said his client has also paid back the $1.6 million, which with interest came to $1.8 million.
The total amount that his client has paid for his legal bills is $9.2 million, McLeod told the judge.
“I say it’s an enormous sum. Like everything else about this case , it’s completely unprecedented. But it’s not unjustified.”
The hearing in a Vancouver courtroom is scheduled to run three days.
Len Doust, a lawyer acting for the Crown, was expected to begin giving his submissions late Monday or Tuesday.
Malik and Bagri were acquitted of murder charges in the 1985 Air India bombings that claimed the lives of 331 people.
