On March 15, 2005, a Vancouver courtroom and indeed much of Canada was stunned to hear British Columbia Supreme Court Justice Ian Bruce Josephson read his acquittal of accused Air India bombers Ripudaman Singh Malik and Ajaib Singh Bagri.
The culmination of one of the country’s largest mega-trials, into what many describe as its worst mass murder, had ended. The government had failed to prove its case, and by simple reduction, Richard Peck, lead counsel for Bagri, had proven his. It was not the first time his arguments had stunned a province and perhaps the country. Four years earlier, Peck was successful with the argument to the Supreme Court of Canada that parts of Canada’s child pornography laws were akin to legislating thought, in R. v. Sharpe.
Peck is not always on the side of public opinion, then again criminal lawyers rarely are. He prefers to make his arguments before a court, rather than at a podium. And despite victories that propelled him into the upper echelon of the criminal bar in Canada, many both inside and outside the profession have likely never heard his name.
Sixty-year-old Peck is not a self-promoter, rather a living, breathing contradiction of the traditional idea of what a top criminal litigator is or what one acts like. His contemporaries, including Air India co-counsel Michael Code, say Peck has no territorial issues, is extremely modest, and “brings almost no ego issues at all to the courtroom.”
What he lacks in self-promotion, Peck certainly more than makes up for in promotion of the legal profession. “I’ve been intrigued by the lore of the profession particularly in Canada,” says Peck. “The great characters that have gone before us, some incredible people and I’ve known many of these people over the years and learned to admire and respect what they’ve done. This goes from the mighty to the less mighty, just having had the opportunity to spend time with people like [former B.C. chief justice] Allan McEachern, and over the years [former justice] Michel Proulx, to know people like [Supreme Court Justice] Morris Fish, people like the Greenspans, to have met [former justice] Arthur Martin, just a variety of remarkable human beings and what they’ve done, it’s always intrigued me. . . . I think these people set a model, set a standard as it were, that we can only inspire to ultimately.”
Where that standard is most evident for Peck is in the courtroom. He says the courtroom is the “one place that you really feel comfortable.” In that temple of justice, Peck’s persona is described as the model of civility, never blusterous like the litigators often portrayed on television. His contemporaries note his impeccable standards and his calm and professional manner. His language is thoughtful; he considers his words fully and truly in a way that only someone with the love for the English language can.
“He really cares about language,” Code says of Peck. “This makes him a really unusual lawyer, he loves the English language, he thinks about the English language, he chooses his words incredibly carefully. So he is probably the best read lawyer of any lawyer I know, because he is just so thoughtful and careful about the way he uses language, real precision and care.
Code says the first time he saw Peck in a courtroom it brought to mind great Canadian criminal lawyers such as John J. Robinette. Peck’s careful and considerate language means he holds his temper and never attacks opponents.
“I was always astounded when I saw him stand up in a courtroom, that he has the presence in the courtroom that I have not seen for 30 years,” Code says relating Peck’s presence to Robinette’s. “[He’s] so formal and incredibly professional and polite, [you] never see him say anything nasty or losing his temper or attacking his opponent on a personal level, he’s all straightforward business in the courtroom, in a very erudite, learned, formal kind of way.”
The voraciousness of Peck’s reading is almost legendary. Code tells Canadian Lawyer that during the Air India trial, he spent many evenings in Peck’s basement study, discussing the “massive library” of books that lined the walls. Indeed a memorable quote given to Globe and Mail reporter Robert Matas at the start of the Air India trial was that Peck was reading so much about the case he had very little time for leisure reading “other than some poetry.”
The Air India bombings on June 23, 1985, killed 331 people, 329 of those were on-board flight 182, a Boeing 747 that blew up off the coast of Ireland. Two more victims — baggage handlers — were killed 54 minutes earlier at Japan’s New Tokyo International Airport — today called Narita Airport. Until the Sept. 11, 2001, attacks on the World Trade Centre in New York, Air India was considered the worst terrorist attack in aviation history.
Both Bagri, a Kamloops, B.C.-based mill worker, and Malik, a Vancouver businessman, were central figures in B.C.’s Sikh community. They were each charged with 329 counts of first-degree murder, conspiracy to commit murder, the attempted murder of passengers and crew on the Canadian Pacific flight at the Tokyo airport, and two counts of murder of the baggage handlers.
Aside from the massive size of the case, Air India was politically charged, involving allegations of militant Sikh separatist groups, and the shooting death of another primary suspect by Punjab police. Of the passengers of Air India flight 182, 280 were Canadian citizens.
The key to the Crown’s case was three witnesses including Inderjit Singh Reyat, who had already been sentenced for manslaughter for his role in the bombings. Malik and Bagri were both acquitted as the judge found inconsistencies with the three key Crown witnesses — including a woman who said Malik had confessed to her more than once.
The Crown’s witness list at one time had more than 1,100 names, eventually whittled down to 800. The trial heard from 81 Crown witnesses. Peck lead a team of nine lawyers in Bagri’s defence, the province had 18 lawyers, and Malik’ defence team consisted of six lawyers.
“[With] mega-trials, you are talking in effect, situations where teams of lawyers are created to act in cases whether for the Crown or defence,” says Peck. “So you are having to set up systems to try and analyze the material and get through it. Air India was probably a good example, although in some ways it is not a classic example, because we were able to work through a great deal of the issues, sort of, behind the scenes that resulted in the trial taking a lot less time than it otherwise would have.”
Code explains that a big reason the defence team was so effective in Air India was Peck’s lack of ego. He says Peck had no territorial issues about the case and was “very happy to share the case and work in a collegial way with counsel.”
In 2007, the province of B.C. turned to Peck’s renowned research and legal skills to look into the situation in Bountiful, the small town near Creston, B.C., that is home to an enclave of the Fundamentalist Church of Jesus Christ of Latter Day Saints. An offshoot of the Mormon faith, it is believed that this commune still practises polygamy. The commune has existed for nearly 60 years and almost 20 years ago the issue came to the attention of B.C.’s attorney general. There was a criminal investigation and the province sought a legal opinion from then-B.C. Court of Appeal chief justice Allan McEachern.
The fear was s. 293 of the Criminal Code, which made polygamy illegal, could be struck down as contrary to religious freedom rights under s. 2(a) of the Charter of Rights and Freedoms. No charges were ever laid against the men of the commune or its leader Winston Blackmore.
A decade later the questions surrounding Bountiful and allegations of polygamy were once again in the public eye. Media questioned how polygamy could seemingly be allowed, despite the practice being contrary to the Criminal Code.
This lead to criticism of the Charter and questions were once again raised about religious freedoms. The provincial government eventually sought out an RCMP review of the situation, then turned to Peck, a lawyer who not only understands the Charter but has also been successful in using it to challenge Canada’s laws.
The decision to use Peck to review the situation at Bountiful was made by the province’s criminal justice branch. However, the decision was likely due to the high regard in which he was held by B.C. Attorney General Wally Oppal. Peck says Oppal, a former B.C. judge, “has to be considered as one of the very top criminal defence lawyers in Canada.”
In regard to Bountiful, Peck wrote that, “after extensive study of the relevant material, I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all other alleged harms flow, and the public interest would be best served by addressing it directly.
“There is a substantial body of scholarship supporting the position that polygamy is socially harmful. With great respect to those who have given opinion to the contrary, I believe [s.] 293, may well be upheld by the courts as consistent with the Charter’s commitment to religious freedom.
“Religious freedom in Canada is not absolute. Rather, it is subject to reasonable limits necessary to protect ‘public safety, order, health, or morals or the fundamental rights and freedoms of others.’ Ultimately, in my opinion, there is a good case for upholding [s.] 293 as compliant with the Charter.”
Peck suggested a reference case as opposed to a straight challenge as he felt a challenge could be derailed at several stages and never get to the meat of the issue on the constitutionality of polygamy laws. Peck also showed an empathy rarely seen for residents of the commune, saying “they were investigated 17 or 18 years ago and after that investigation nothing was done and they’ve gone on and lived their lives in their peculiar belief system.
“To suddenly change this, there was an element of fairness there that concerned me and I thought the reference would be a clean way to get to the core issue, get it dealt with in a fairly timely fashion, and then, as I suspect, it was upheld and found out to be constitutional, everybody would be on notice, and then it is fair game.”
Peck agreed that continually threatening people with charges, yet never following through, seemed almost malicious. Despite the words of praise from Oppal, Peck’s opinion prompted the province to call for another opinion, this time from Len Doust, one of the special prosecutors who represented the government’s case in Air India. Doust also said the province should pursue a reference case. The province has now called for a third review.
Regardless of the next steps, there will no doubt be those in B.C. that pin the entire issue, and the inability of the province to get a resolution, as a fault of the Charter. Truly, whenever there is a perceived case of a criminal or a suspected criminal getting the better of the court system, radio call-in show are littered with listeners wishing to tear up the Charter. The airwaves are not the only place where you’ll find those who find enormous fault with the Charter. Peck says the legal profession has also seen its Charter skeptics.
“It is a lot harder to adapt to a sea change that was wrought by the Charter if you’ve been entrenched in thinking in pure common law, criminal law systems for 20 or 30 years and suddenly you’ve got this new machine, this new engine, this vibrant engine that is affecting criminal law,” says Peck. “The odd thing about lawyers, and it doesn’t matter whether they are criminal lawyers, civil lawyers, tax litigators, lawyers as a group tend to be very conservative, and I don’t mean politically conservative, conservative by nature.”
Peck, called to the British Columbia bar in 1975, had only been practising law for eight years when the Charter was enacted. He agrees with many of his predecessors that it is a living document, a “living tree” to borrow the description of the British North America Act given by Lord Sankey in the Person’s case. Peck marvels at the Charter’s flexibility in enabling Canadians, their politicians, and the courts to cast off traditional belief systems.
“I don’t think we should be afraid to use it and to use it to challenge ideas that we have historically accepted without question,” he says. “I think that it is to be used for important issues, I don’t think it should be in any way trivialized. I think that sometimes people tend to use it for purposes or reasons that I don’t think it was intended for. At the same time, it seems to me, that when you are dealing with core issues that mark the strength of a democracy such as privacy, I think that the Charter is there for our use and protection.
“At the same time, I have to say to you, that I firmly believe that although the Charter grants us rights, some of which I think are new rights, but some of which are historic rights, at the same time I firmly believe that with every right comes a concomitant responsibility. So I’m not a person that says the Charter is there to protect evil things, in a sense, although it is certainly there to protect every person, some of whom who are evil.”
In R. v. Sharpe, Peck found a question that certainly challenged widely held ideas and principals. To many people, John Robin Sharpe was seen as the embodiment of “evil.” In 1995, he was charged with two counts of possession of child pornography and two counts of distribution of child pornography. At the core of the evidence were volumes of writings depicting fictitious sexual acts with adolescents.
In 1999, B.C. Supreme Court Justice Duncan Shaw threw out the charges, writing in his decision that, “there is no evidence which demonstrates an increase in harm to children as a result of pornography.”
The province appealed to the B.C. Court of Appeal, where it was upheld 2-1. The dissenting opinion was written by McEachern, who argued that, “the protection of persons possessing child pornography, for any purpose, is so far removed from the core values of the Charter that it rates very low on any scale of importance, and the general right of our citizens to the privacy of their lives is threatened hardly at all by this definition.”
The province appealed, this time to the Supreme Court of Canada. In the 2001 landmark ruling R. v. Sharpe, the SCC ruled that a person could not be prosecuted for what they created through imagination for personal use.
“At some point, if that case had gone in a certain direction it would ultimately mean that the state could effectively legislate thought,” says Peck. “In other words it could prescribe thought, it could preserve the recording of thought, I believe for a democracy to succeed we need a zone of privacy around the individual.”
The court did, however, uphold much of Canada’s child pornography laws. For Peck, it was the law that seemed to legislate thought that most concerned him. “The reductio [ad absurdum] of Sharpe, you see, if it went a certain way was that the state could dictate to a citizen what the citizen could write to himself in the confines of his private study for his personal use and nothing more, or what pictures that person could draw for themselves, for their own use in their own study and not the world.
“At some point it went beyond, it reached into what I think is a protected zone of privacy that at its core we should all be prepared to enjoy and work within and that was what disturbed me about it. I saw that legislation as having the potential to breach that, to reach into that protected core that had been developed over a number of centuries in terms of protected thought.”
Today, Peck is involved in just about every facet of the legal profession in B.C. He is the director of the International Society for the Reform of Criminal Law. He is a mentor, adjunct professor at the UBC Law School, and president of the Legal Historical Society of British Columbia.
He is also the national co-chairman, along with Ontario Superior Court Justice Michelle Fuerst, of the Federation of Law Societies of Canada, national criminal law program. The program helps train members of the criminal bar of Canada and the 2008 edition marked the program’s 35th year.
“If you are a person who cares about the profession, if you like what you do, if you believe that this is in fact a historic, honourable profession, then I think that you tend to become dedicated to ensuring that you can do what you can to enhance its image and enhance its professionalism and assist those you work with,” says Peck.
“We’ve got a long history in this country, I think, and certainly in B.C. of collegiality, and I’m talking about the criminal bar, and a long history of assisting each other in various ways and I think these are just manifestations of that, there is no extrinsic value in it, it is something you get some gratification out of personally in terms of contributing to the betterment of the profession.”