My very first post here at The Alfalfafield, way back in April(!), detailed the ongoing trial of John Nuttall and Amanda Korody, two accused terrorists in British Columbia. I’ve been following the story closely ever since, and with the sudden insertion of CSIS into the drama in the last week, it seems about time for an update.
In case you’re too lazy to click through and read my summary of the events leading up to the trial (henceforth acronymized as ICYTLTCTARMSOTELUTTT), here’s a quick run-down: Nuttall and Korody, two impoverished recovering heroin addicts, were the subject of a 240-Mountie “investigation” which culminated in an “attempt” to bomb the B.C. legislative buildings in Victoria on Canada Day 2013. I use scare quotes for “attempt” because the plot never had any chance of succeeding, as the pressure-cooker “bombs” the couple planted had previously been rendered inoperative by the Mounties controlling the operation.
The pair were recently found guilty, but their sentencing has been delayed while the trial judge considers the question of whether they were entrapped by the RCMP. To a totally-not-impartial outside observer like myself, this seems like a foregone conclusion: the two recent converts to Islam had the most half-baked of plans, proposing wild schemes like hijacking nuclear submarines or building and launching missiles at the Parliament Buildings, or, failing that, Seattle, which they mistakenly believed was ten times closer to them than it actually was. The actual scheme they eventually carried out was pushed on them by undercover cops who alternately bullied and flattered the pair, cajoling them to consider more practical and easily achievable goals, including specifically urging the use of the explosive C-4 inside pressure cookers at the BC Leg on Canada Day. The RCMP even paid for the couple to have a weekend getaway at a Kelowna hotel, where undercover cops gave them detailed instructions on how to use C-4, instructions it’s hard to see them getting elsewhere. In short, this is a plot that could never have existed absence the active involvement of over two hundred cops. (For sources on all of the above – click the damn link! It’s all there!)
The criminal justice system being what it is, however, I’ve not been overly optimistic about the pair’s chances for acquittal. But the case took a totally unexpected turn last week when the defence demanded that CSIS turn over any documents it had relating to the couple, arguing that it had direct bearing on the question of entrapment.
From the Vancouver Sun:
The Canadian Security Intelligence Service had “human resources” operating in Metro Vancouver mosques between 2011 and 2013 who may have acted as Jihadi agents provocateur, the Surrey couple found guilty of terrorism are suggesting.
John Nuttall was so concerned after meeting one or more of these people while attending a local mosque that he met with the spy agency to turn them in.
In a bizarre turn to an already strange trial, the court heard that in late 2011 or early 2012 Nuttall had his landlord set up a meeting with CSIS in which he offered to inform on the Islamic extremists.
As a result of the meeting, defence lawyers implied that Nuttall became a target while the extremists he identified may have been or became “human resources” for the agency.
Now they are demanding to know what information was exchanged between CSIS and the RCMP.
The Mounties, however, are saying that there’s nothing to see here – move along, people!
The court heard that documents disclosed by the Mounties consist of little more than a single line from CSIS advising police that Mr. Nuttall may be a national security threat.
“We have the RCMP saying, ‘there’s nothing here,’” said [defence attorney] Ms. [Marilyn] Sandford. “Well, there seems to be a lot more here than what meets the eye.”
Crown lawyer Peter Eccles opposed the application, insisting that CSIS has no obligation to share information with anyone and that any information would be irrelevant to the defence’s case.
The RCMP can ask for information and the spy agency is fully entitled to tell the Mounties “to pound sand,” Mr. Eccles told the court.
So, to recap: undercover CSIS agents infiltrating Vancouver mosques were behaving in such a provocative way that John Nuttall – a man who was later successfully entrapped into a plot to blow up a legislative building – was so concerned about the danger they posed that he went to CSIS to report on them. Then – somehow! – he became the subject of an RCMP investigation which eventually involved – all together now – two hundred and forty officers. And despite the fact that CSIS was apparently keeping close tabs on the mosque that Nuttall attended, in an active search for radicals and would-be Islamic terrorists, that’s the entire extent of the relationship between the two agencies on this case.
I think the defence has good reason to be skeptical here, and BC Supreme Court Justice Catherine Bruce was quite right to make this demand in particular:
She said the RCMP must also provide to the defence information from CSIS that was not reduced to writing because it was obvious police knew more than they put into “cryptic” notes.
Now, that’s an oddly specific request. Why would CSIS go to great lengths to avoid putting information it gave to the RCMP in writing?
It turns out that this goes way back to the Air India bombing of the 1980s, as Craig Forcese and Kent Roach explained in their excellent and insightful April article in the Walrus on “The Real Agenda behind Bill C-51“:
One large reason why CSIS is so slow to share information with the police is that Canada has extremely broad criminal trial disclosure obligations under the Supreme Court of Canada’s landmark 1991 Stinchcombe decision. That judgment dictated that the Crown must provide the criminally accused with all relevant evidence—even evidence that is not cited directly by prosecutors.
CSIS does not want its lifeblood of informers leaked via RCMP disclosures to defendants. The police, in turn, have learned to live with less CSIS-provided information than would be ideal, because they often share CSIS’s reluctance to reveal secret information.
As the article points out, the extremities of this information drought have extended to CSIS withholding information from the RCMP about a potential terrorist training camp in Canada and a known Russian spy in the Canadian navy, all because it wants to keep its agents’ names out of court documents. Those particular cases eventually came out and gave it some pretty bad press, so it’s reasonable to suspect that the agency would try a new tactic – keeping things verbal. After all, this is a tactic which has been pursued by the public sector, where major policy decisions are done without anything being put in writing to avoid eventual disclosures to Freedom of Information requests.
Forcese and Roach consider the sinister implication that Bill C-51 has for this situation:
Critically, C-51 will not fix the above-described intelligence-to-evidence problem. Yes, the bill broadens the possibility of information sharing—something that always has been a prospect for CSIS and RCMP in criminal cases. But it does not follow the Air India commission’s recommendations in compelling CSIS to notify other agencies of information regarding suspected terrorists.
Instead, C-51 offers CSIS an alternative strategy: the agency will be able to do an end-run around the dilemma of handing information to the police by exercising its new disruption powers. It will be able to so unilaterally, without participation by the police or anyone else, and avoid the problem of subsequent disclosures during criminal prosecutions…
At some level, this CSIS unilateralism may sound attractive: by keeping sensitive information within one silo, it may help agents do a better job of keeping our country safe from terrorism and other deadly threats. But caution is warranted. The new physical role that C-51 gives CSIS amounts to sidelining the traditional criminal justice model of anti-terrorism in favour of a more fluid, potentially more lawless covert disruption approach…
Under the post-C-51 result, there may never be any criminal proceeding. There is no prosecution, no negative publicity in the media, no revelation about how these would-be terrorists were penetrated and exposed by police agents. Several of the key functions of criminal law in our society—denunciation and deterrence—are not achieved.
So here’s my admittedly uninformed and evidence-free take on this whole situation.
John Nuttall, reformed rockstar heroin addict, is a recent convert to Islam, and encounters some pretty friggin radical people at his mosque. Their ideas seem pretty extreme and dangerous, and he takes what must have been a big step for him, and reports them to CSIS. Of course, the people he’s reporting on are actually CSIS assets, so nothing actually comes of it. But they mention, in a terse one-line communique with the RCMP, that Nuttall himself may be a national security threat – maybe they’ve heard him mouthing off and trying to sound big, maybe they just want to get him off their case. Who knows?
But that’s not the extent of their communication, of course. As both CSIS agents and Mounties are actively involved in the same small community centred around one Vancouver mosque, their paths are crossing frequently, and regular communications are essential to make sure they’re not stepping on each others’ toes. These communications, however, are all verbal. They may even go to stereotypical spy-like lengths, like using burner cellphones or dead drops. Whether CSIS actively aided in the entrapment of Nuttall and Korody, or whether they simply stood by and watched it happen, is something we can’t know – because there’s no paper trail to look at. Either way, though, they must have known more than the scant written record suggests.
Which is a sad statement to make – CSIS (which was founded in 1984, of all years), in response to allegations of RCMP lawbreaking, may now be complicit in a way-overblown RCMP entrapment scheme which (as I detail in the above-linked article) was apparently part of a plan to win greater funding for the Mounties’ “terror”-disrupting INSET teams, but the public may never know one way or the other, because CSIS has quite likely gone to great lengths to keep their actions hidden from the purview of Canadian courts.
But consider how much worse it would be – will be – in a post-C-51 environment. Instead of going to the RCMP with their suggestions (which, who knows, may have been well-founded and well-intended), CSIS now has all kinds of incentives to deal with the perceived problem themselves, outside of the law. Their newfound disruptive powers give them the ability to literally break not only laws but the Charter of Rights and Freedoms if they deem it necessary in the interests of national security. So the folks who so overzealously played the part of Islamic extremists now have the power do things the Mounties couldn’t dream of doing, even in an extreme entrapment case such as this, simply because they’ll never have to present either their findings or their methods in an open court.
That this Nuttal/Korody drama was possible pre-C-51 is indicative of how deep the rot in our surveillance state runs. That the RCMP and CSIS were able to cooperate on this operation without leaving a paper trail for the public to examine is troubling at best, and points to the need for serious reform in the way the state’s law enforcement and surveillance agencies relate to one another. (Or, you know, the abolition of state surveillance agencies – but that’s a post for another day.)
But Bill C-51 has actually made this conflicted dynamic worse by giving CSIS more incentives to avoid communication with law enforcement agencies and new abilities to take the law into its own hands. Given CSIS’s track record of pretty reckless behaviour in cases like this, the Harper government may have created a monster.