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A Major undertaking

Cover Story
|Written By Robert Todd
A Major undertaking

The morning of June 23, 1985 was a typical Sunday for John Major. At the time a highly touted litigator at Bennett Jones LLP, he enjoyed a pleasant Sunday morning round at the historic Calgary Golf & Country Club, one of the few hobbies the self-confessed workaholic partakes in away from the law. But as he left the course, a startling news report chimed in on the car radio. An Air India plane was reported missing over the North Sea. Major was well aware of India’s internal strife at the time: the country’s prime minister, Indira Gandhi, had been assassinated in October 1984 by two of her bodyguards as radical Sikhs rallied to create their own country in the Punjab. In an effort to quell the campaign, Gandhi had earlier ordered a raid of the revered Sikh Golden Temple. These factors led Major, as he wound his way through the golf course grounds, to assume the plane’s fate was attached to “internal” Indian turmoil.

It was later revealed that 329 passengers had been killed in the terrorist bombing of that plane, Air India Flight 182; 280 of the passengers were Canadian, many of them second- and third-generation immigrants. The shocking attack remains Canada’s worst mass murder. One would expect a terrorist act of this magnitude to spark a firm and calculated response from the Canadian government. Yet it took eight years for Ottawa to acknowledge that it was indeed a bomb that felled the plane named Kanishka, which plummeted 31,000 feet into the Atlantic Ocean off the west coast of Ireland.

In March 2005, British Columbia Supreme Court Justice Ian Josephson, acquitted Ripudaman Singh Malik and Ajaib Singh Bagri of their alleged roles in the bombing. The court decision came after an estimated $130 million was spent on the investigation and prosecution of the incident. Meanwhile, the man suspected of masterminding the bombings, Talwinder Singh Parmar, was killed in 1992 before charges against him were laid. The only person convicted in the attacks, Inderjit Singh Reyat, received a five-year sentence in 2003 on a manslaughter conviction for helping build the bomb (he is currently facing perjury charges for allegedly lying at the trial of Malik and Bagri). Later that year, then public safety minister Anne McLellan asked former Ontario premier Bob Rae to issue a report on whether “outstanding questions of public interest” regarding the bombing remained unanswered after the court decision. In the report, Rae remarked, “Many Canadians think that it was ‘9-11’ that initiated us into the modern world of terrorism. It should have been June 23, 1985.” Rae went on to recommend a “focused, policy based inquiry” into the incident. What was needed, said Rae, were answers to questions such as how Canadian authorities assessed the threat of such a bombing, how well the investigation was managed, and the adequacy of the country’s airport safety protocols.

That brings us to March 2006, when Canada’s prime minister, Stephen Harper, rang up Major. The new PM had long backed a full judicial inquiry into the bombing, and was seeking advice on whether it remained worthwhile two decades after the tragedy.

The request came at a particularly awkward time for Major. He had just returned to his old firm in Calgary after spending 12 years in Ottawa serving as a justice of the Supreme Court of Canada. Having left the top court a mere three months earlier, he was settling back into life in Calgary, reacquainting with old friends, and likely getting his golf swing back in shape. Nevertheless, the 75-year-old Major agreed to put his retirement on hold. At the prime minister’s request, he canvassed victims’ families to get a feel for their desire for an inquiry. Harper received Major’s findings, and on May 1, 2006, appointed him commissioner of the inquiry that would provide a “thorough and compassionate investigation” into the bombing. From all accounts, Major was an inspired selection to lead the inquiry, which threatened to go off the rails early on and dragged on years longer than expected.

Major was born in Mattawa, Ont., about five hours north of Toronto, where he lived until age nine. The family moved throughout his childhood to various Ontario mining towns, as his father William Major worked for the Canadian Pacific Railway, eventually becoming a station agent. The family ended up settling near Sudbury in Espanola, Ont., where Major, the middle child of five, graduated from high school.

He went on to attend Loyola College, now Concordia University, in Montreal, receiving his bachelor of commerce degree in 1953. He obtained his LLB from the University of Toronto in 1957, and was eager to get started in legal practice. But Law Society of Upper Canada rules at the time would have forced him to spend two more years at Osgoode Hall before qualifying for a call to the bar. He planned to sidestep that requirement by moving to Calgary to receive his call to the bar in Alberta, and then return to Ontario through a transfer. The first part of the plan worked — he was called to the Alberta bar in 1958 — but he never returned to Ontario. He says “inertia” and an affinity for his new home kept him in Calgary for good. “It was a pretty attractive place: 280,000 people compared to Toronto,” says Major. “There was a need for lawyers, so you got more significant work much earlier than you would have in Toronto, where the tradition of those days was carrying a briefcase for some senior for a certain period of time. It just was a better place for a young lawyer to be.”

He joined the firm that has become Bennett Jones, where he became a litigation partner in 1967. While there he represented several major clients, acting as counsel to the Calgary Police Service and the Canadian Medical Protective Association. Major also acted as counsel to a pair of key public hearings: the 1986 Commission of Inquiry into the Collapse of the Canadian Commercial Bank and the Northland Bank, and for the province of Alberta in the 1987 Code Inquiry into the collapse of the Principal Group of Companies.

Major stayed with Bennett Jones until 1991, when he was appointed to the Alberta Court of Appeal. Prime minister Brian Mulroney quickly appointed him to Canada’s top court the following year. He wrote majority reasons in cases such as 1999’s R v. Ewanchuk, which asserted that there is no defence of implied consent in sexual assault cases; 2004’s Peoples Department Stores Inc. v. Wise, with Justice Marie Deschamps, on the ambit of directors’ and officers’ fiduciary duties; and 2005’s British Columbia v. Imperial Tobacco Canada Ltd., which backed legislation allowing the province to sue tobacco companies for recovery of health-care costs.

Justice Ian Binnie, who has been at the Supreme Court of Canada since 1998, believes the profession has underestimated Major’s contribution to the top court. “Jack Major is an intensely practical man,” he says. “Probably his distinguishing feature is that he has excellent judgment, so that he very quickly seizes the point of the particular controversy, and goes after it without too much fanfare or getting distracted with too many side issues.”

Major departed from the Supreme Court in December 2005, with his term set to expire in February 2006. He returned to Bennett Jones as a consultant in January 2006, but any plans to smell the roses swiftly ended when Harper solicited him for the Air India file. Major says he was keen to take on the challenge of leading the inquiry, but admits he expected it to wrap up far sooner than it did. It took about six months just to set up the hearings, with menial tasks such as the search for rental space, hiring staff, setting up computers, and other logistics all part of the process. The inquiry staff completed what Major calls a “rough-out game plan” of how they would steer the proceedings, and on June 21, 2006, he laid out the inquiry’s terms of reference. They included an appraisal of how well Canadian law curtails terrorist financing, the adequacy of protection for witnesses in terrorism cases, and the need for improved aviation security.

Oral submissions from those seeking official standing were heard starting July 18, including a request from Malik. Major, who speculates that Malik assumed his bid would be swiftly denied, agreed to give him intervener status. Curiously, Malik never showed up when the hearings got underway.

The inquiry then moved to receiving testimony from victims’ families, who were not cross-examined and spoke generally about the impact the bombing had on them. That testimony has been chronicled in a volume from the inquiry’s phase-one report, titled, “The Families Remember.” Major recalls being touched specifically by the testimony of Dr. Chandra Sankurathri, a former biologist at Health and Welfare Canada, who lost his wife and two young children in the tragedy. In 1988, after years of hopeless grieving, Sankurathri quit his government job, liquidated his assets, and returned to India. He then established a charity in honour of his wife, Manjari, and opened a school for poor children named after his three-year-old daughter Sarada. Sankurathri later created an eye hospital in honour of his six-year-old son, Srikiran, who despite his young age planned to become a pediatric ophthalmologist. “That’s a remarkable story,” says Major. “Others didn’t respond quite as well.”

The inquiry continued throughout the fall of 2006, notably receiving evidence from Rae, who discussed the security breakdowns that made way for the bombing. But Major met significant roadblocks from the RCMP and CSIS, which refused to make public parts of key documents, beginning in early 2007. Government lawyers said the information could not be made public due to ongoing security concerns, but an unsatisfied Major demanded the information be released. He put the hearings on hold on Feb. 19 of that year, saying he simply couldn’t carry out his mandate if portions of the documents remained blacked out. This prompted Harper to get involved, ordering government lawyers to take a less restrictive approach to the release of documents. Commission lead counsel Mark Freiman released a statement March 23 indicating he was now confident the inquiry would have the evidence needed to continue.

Major says the ongoing struggle the inquiry faced in receiving information was the main reason it dragged on until the release of his report this June, rather than wrapping up in the year or two he expected. “The thing is 25 years old,” he says. “We were not naming names. We were not going to attach specific blame to any person. If it was critical, it would be of the institution. But I didn’t get the assistance I thought might be coming. So we had to dig it out ourselves, and that took a lot of work.”

Parties to the inquiry have roundly applauded Major for standing up to CSIS and the RCMP and threatening to shutter the inquiry. Jacques Shore, co-lead counsel to the Air India Victims Families Association, says the gambit earned the commissioner his stripes early on. “He basically stared them down and said, ‘Either you make this meaningful by giving us what we need and provide us with the documents that are required to deal with this in a public hearing process, or what’s the point?’” says Shore, a Gowling Lafleur Henderson LLP Ottawa partner who represented over 250 victims’ families. “He basically insisted this was not going to be a charade.” Another commissioner may have been unable to take such a strong position, says Shore. “Maybe he didn’t have much to lose. He has had his distinguished career. Now he just has to do the right thing.”

Major says authorities gradually began to make more information public, but access to documents proved contentious throughout the inquiry’s proceedings. While accepting of the need to keep certain documents from prying eyes, he believes governments guard public information far too closely. “There were things redacted — that is, black lines drawn through — which I eventually got un-redacted, and you’d read what was redacted and you’d wonder, well why? What difference does this make, that sergeant so-and-so left the force four years ago? I don’t attribute any ill motives, it’s just a philosophy that’s misplaced.”

Major also attributes the inquiry’s slow pace to the RCMP’s practice of rotating officers through various departments. While the policy gives officers a better view of the force’s organizational structure, better positioning them for future leadership roles, he says it puts officers in the unenviable position of picking up a file that someone else has been carrying for years. It also creates havoc when a public inquiry seeks a cohesive narrative of how mistakes were made. “There was that complication of not having a lot of witnesses that could start at Chapter 1 and lead you through the whole book. It was piece by piece,” he says.

Yet the process could have taken much longer if not for the tight schedule Major imposed on hearing days. He typically instituted a five-days-a-week agenda, enforcing a 9-to-5 workday, with a one-hour lunch. That made for a far busier day than typical inquiries, which tend to follow a 9 a.m.-to-1 p.m. daily schedule, with afternoons used for preparation. “We didn’t have long coffee breaks, and everyone co-operated,” says Major, who spent evenings in his hotel room reviewing notes, keeping an eye out for inconsistencies with prior testimony.

Freiman, a partner at Lerners LLP in Toronto, says Major insisted on efficiency. He formed a tight definition of who would be recognized as a party and who would be an intervener, with only parties permitted full standing to examine, cross-examine, and suggest witnesses. Interveners could provide written submissions, and take part in oral hearings if he deemed it relevant. “He understood the strengths of the inquiry process, in terms of allowing him to ensure that only relevant issues were brought up,” says Freiman. “He wasn’t at all hesitant in his rulings, in terms of ensuring that irrelevancies didn’t clog up the commission’s time, that people didn’t go off on frolics. He kept a very tight rein on the inquiry and on its proceedings without ever losing track of the important stuff.”

Major’s straightforward approach also came through in June 2007. That’s when a potential witness suffered an apparent heart attack just as a group of others refused to offer testimony, as the commissioner said he couldn’t guarantee their identities would be kept private. They felt their safety would be compromised even if their testimony were heard in private. “We do live in a democracy where we’re governed by the Charter, where certain rights are defined and where freedom of the press is enshrined,” said Major at the time. “We live with that and act accordingly.”

The commissioner took steps to establish his impartiality during the hearings, taking pains to not appear as siding with victims’ families — he has avoided attending memorial services for this reason — nor the government, RCMP, or CSIS. He says his role was to put together a “puzzle” from the pieces of evidence the inquiry received. “There are a lot of holes; a lot of things that need explaining,” says Major. “You get explanations. Well, which one makes sense? Which one is supported by evidence? Where did the evidence come from? Why hadn’t it been made public before? All that sort of thing. So you’re occupied with trying to find out what happened, not what some people thought happened.”

While the stakes were high at the inquiry into the biggest mass murder in Canadian history, Major says he felt no external pressure in leading it. He was nagged, however, by a desire to reach the finish line. “I wanted to get it done, particularly after we were into it for a couple of years. I thought, I’ve passed the biblical prediction of age, and we’re into this, and there’s been money spent. If I got hit by a car or left this world in other circumstances, it would be terrible to start over.”

Major credits inquiry counsel for taking care of the “heavy lifting.” It was up to them, led by Freiman, to interview witnesses and collect evidence before presenting it at the hearings. He singles out the work of the inquiry’s eight junior counsel, who spent endless hours scouring documents. “They were quite heroic, I thought. Young, in a room in Ottawa that was secured, and they’d be in this room with no windows, sorting out documents, piles of documents, trying to get some sequence to the whole thing. Without them, without the commission counsel with the help of the juniors, it just couldn’t have been done.”

The inquiry’s work culminated in the June 17 release of Major’s final report, titled, “A Canadian Tragedy.” Said Major upon release of the five-volume, 4,000-page tome: “A cascading series of errors contributed to the failure of our police and security forces to prevent this atrocity. The level of error, incompetence, and inattention which took place before the flight was sadly mirrored in many ways for many years, in how authorities, governments, and institutions dealt with the aftermath of the murder of so many innocents: in the investigation, the legal proceedings, and in providing information, support, and comfort to the families.”

Major’s recommendations include an expanded role for the national security adviser in the Privy Council Office, a move he believes would improve co-ordination among agencies managing national security. He would also like to see amendments to the Canada Evidence Act, eliminating the two-court system on national security confidentiality in terrorism prosecutions. He rejected the notion of a three-judge system for the handling of complex terrorism prosecutions. Victims’ families should also be compensated through ex gratia payments, says Major, as a “demonstration of solicitude” by the government.

The victims’ families are deeply thankful for Major’s work, says Dr. Bal Gupta, who lost his wife in the Air India bombing. “The report offers answers to all the questions which were asked in the terms of reference,” he says. “The families are, by and large, quite satisfied with his recommendations.” Gupta notes that many of the families pressed for an inquiry for over 20 years, and suggests the report vindicates that effort. “It was very important for the families to get to the truth. They felt an inquiry was important to bring out all of the facts as clearly as it was possible, and at the same time, to come out with the lessons which could be learned from those facts, to prevent a similar incident in the future.” Meanwhile, Gupta says the government must now implement Major’s recommendations.

The families plan to keep in touch with Harper to push for that, and Major believes the government will follow through on his proposals. It has already targeted airport cargo-screening protocols, a move set in motion in late May. Yet he stresses more must be done. “All our cargo is not X-rayed going onto airplanes, and it should be. We X-ray baggage, but we don’t X-ray cargo.” It’s impossible to say just how seriously the government will take Major’s findings, but he’s confident he gave it his all. “I made as persuasive a case as I could in the report.”

Meanwhile, his first order of business now that he is back in Calgary — for good, one presumes — is to return to the Calgary Golf & Country Club. Other than that, he isn’t quite sure what the future holds, aside from his role as a consultant at Bennett Jones. “I’m supposed to be retired,” he says. “I think that I’m inadequate in that I didn’t develop other interests. . . . You can legitimately say to me, ‘Well look, after close to 50 years, isn’t it time you tried something else?’ And I’d say, ‘Yes, but what?’”

One plan Major hopes to soon finalize now he has some spare time is a trip to County Cork, Ireland, where families travelled to identify bodies and the first memorial for victims of Air India Flight 182 was erected in 1986. “I have a natural curiosity that it’s a memorial to Canadians — the first one, for the biggest air tragedy in history — in a foreign country. It would be interesting to see it and meet some of the people that can still remember.” 

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