Nuttall and Korody trial: the case for an entrapment finding keeps getting stronger

Image description: courtroom illustration of John Nuttall, wearing a suit jacket and dress shirt, and Amanda Korody, wearing a green headscarf and robe, with a court security guard standing between them.

Convicted terrorists John Nuttall and Amanda Korody are one step closer to freedom today – and if you ask me, that’s a good thing.

Nuttall and Korody, you may recall, were found guilty in June of terrorist offences for their plot to plant explosive pressure cookers at the B.C. Legislative Building on July 1, 2013. The trial is ongoing, however, with the defence arguing that the pair were entrapped by the RCMP, which conducted an undercover sting operation involving 240 officers that guided Nuttall and Korody through the entire planning process.

If the B.C. Supreme Court Justice, Catherine Bruce, finds that the pair were entrapped, their conviction will be overturned.

For some people, the very fact that this is possible is sickening. For instance, Ed Bird of Victoria says in a letter to the Times-Colonist:

After viewing the videos in the Nuttall-Korody case, one would assume this case is clear-cut. However, nothing is simple when it comes to our legal system…

If it takes entrapment to catch terrorists, so be it. We are facing the most dangerous time in history and our leaders need to respond accordingly.

The other side is playing hardball while Canada insists on playing slo-pitch.

This point of view is as frightening as it is commonplace. This country has for some time now been drifting towards a two-tier justice system, with entirely different legal standards applied to cases ostensibly involving “terrorism”. Witness, for instance, the creation by the Harper government this past spring of secret tribunals which can revoke the passport of accused terrorists without formal trial or the possibility of appeal, or the noxious Bill C-24, which allows the government to revoke the citizenship of convicted terrorists. Then there’s C-51, which criminalizes certain types of terrorist-related speech and enables law enforcement and surveillance agencies to break laws in the pursuit of terrorist suspects. And despite all of this, the Conservative Party just ran a close second in the recent election following a campaign that was built almost entirely around eroding rights and empowering law enforcement to do even more to combat the menace of terrorists in our midst.

One gets the sense that, for many lawmakers and law enforcement agencies, there’s a feeling that the impartial and long-standing rules of the justice system are an impediment to the “fight against terrorism”. They would tend to agree with Mr Bird that we need to do whatever is necessary to catch these terrorists.

But there’s an obvious problem with this argument – what if there are no “terrorists” without the entrapment?

I’ve long held that that’s the case when it comes to Nuttall and Korody. This pair of recently-converted ex-heroin addicts living on welfare in a dingy basement apartment in the Lower Mainland were always unlikely jihadists, and when one reads about the lengths to which the Mounties had to go in order to get this plot off the ground, it becomes grimly laughable to imagine them ever carrying out any kind of plot, no matter how small or unambitious.

Consider the fact that their handler often had difficulty in getting them to put down the bong, turn off their video games, and leave their damn house. The fact that Nuttall’s initial far-fetched plans including hijacking a nuclear submarine and (somehow) building a missile and launching it at Seattle (which he believed was hundreds of kilometres closer than it actually was), plans that the pair’s RCMP handlers complained were frustratingly far-fetched and impossible to accomplish. The fact that the outline for the eventual plot, as well as the funding, material, and training necessary for its completion, were all provided entirely by the RCMP.

The fact that Nuttall feared for his life if he backed out.

In other words, without the RCMP’s involvement, there is no terrorist plot – just a pair of incompetent shit-talking ex-junkies playing Call of Duty in a Vancouver basement.

Earlier this week, Justice Bruce indicated that she feels there is some merit to this point of view, in a preliminary ruling which states that the RCMP may have engaged in illegal activity and facilitated terrorist activities in their pursuit of Nuttall and Korody.

The ruling, which is a necessary but not a sufficient step on the path to a finding of entrapment, requires that the Mounties turn over their legal opinions and advice to the defence.

From The Province:

“In my view, the defence have raised at least a prima facie case that the RCMP officers involved in Project Souvenir [the RCMP’s code name for the operation] were engaged in unlawful acts during the undercover operation,” said the judge.

“Further, it is apparent that they sought legal advice concerning this aspect of their investigation.”[…]

The Crown argued against the disclosure of the legal opinions in part on the basis that it would violate solicitor-client privilege, but the judge said that the privilege had been waived expressly or by implication.

In particular, the fact that the RCMP had relied on portions of their legal opinions in making their case for conviction was a factor in the judge’s ruling that the opinions in their entirety should be provided to the defence.

Critically, the judge maintained that a finding that the RCMP acted illegally would not automatically guarantee a finding of entrapment:

The judge added that a decision on whether to stay the charges can be made only after all of the evidence at the hearing is concluded.

“A finding of illegal acts, standing alone, may not be sufficient to establish an abuse of process warranting a stay of proceedings,” said the judge.

“However, evidence that the police ignored legal advice or acted contrary to legal advice and, conversely, evidence that the police acted in good faith based on legal advice is relevant to the seriousness of their misconduct, which in turn is relevant to whether a stay of proceedings should be ordered. Illegal acts by the RCMP are also relevant to the entrapment claim.”

If there is going to be an eventual finding of entrapment, then a finding that the RCMP acted illegally is pretty much a necessary precursor.

However, there’s an interesting question that’s raised by the judge’s order: What happens if it turns out that the RCMP’s actions, while illegal, were in line with the legal advice they received? Will it then be presumed the police “acted in good faith based on legal advice” which was wrong/misguided? Or will the Justice question whether the legal opinions drafted for the RCMP may have been written with the possibility of trial disclosure in mind?

If this sounds paranoid, consider this: law enforcement and surveillance agencies have been known to go to extreme lengths to keep certain communications and facts from emerging during trials. In this very case, there’s compelling evidence that CSIS was involved in the entrapment of Nuttall and Korody from the earliest stages of the operation, and that they deliberately didn’t communicate with the RCMP in writing about the case in order to avoid disclosure of their role through the trial discovery process. (I wrote about this aspect of the case in my article “ICYMI – CSIS agents infiltrated Vancouver mosques, and way overplayed their parts.”)

These operations are built to win convictions, and there’s every reason to believe that level of planning extends to the legal department. After all, you don’t put 240 officers on one single case (especially when you’re as cash-strapped as the RCMP perennially claims to be) if you don’t intend to win conviction in that case. That’s why, for instance, the RCMP brought in a “closer” for the final week of the operation, who was tasked with getting the job done at a time when it looked like the whole plot might fall apart. (We may never fully know what methods he used to accomplish this task.)

In reading about this trial, it seems that the RCMP was consistently far more determined to plant these bombs than Nuttall and Korody ever were. And again, all of this happened in a pre-C-51 legal environment. If the court doesn’t find that the pair were entrapped, this will have frightening implications for police powers in this country, even assuming the Liberals follow through on their promise to “fix” C-51 with more oversight and stricter limits on covert law-breaking.

That Nuttall and Korody planted explosives on the grounds of the B.C. Legislative Building is beyond doubt. But that they are terrorists is certainly a dubious proposition. “Patsies” seems a far more accurate label. As subjects of emotional manipulation and threats on their lives, it’s questionable whether they could be said to have freely participated in the plot, and as the recipients of considerable resources and training from the RCMP, it’s questionable whether they were in any way capable of conducting such a plot on their own.

Notwithstanding the Islamophobic histrionics of Mr Bird et. al., who insist that we must destroy our justice system and curtail our rights in order to fight the terrorist menace, the only truly just finding in this case would be a finding of entrapment.


National Security Sunday is a weekly series examining Canada’s military/intelligence/law-enforcement complex. You can contact me at matt@thealfalfafield.com, or leave a comment below.

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