B.C. Superior Court Justice Catherine Bruce’s release of a heavily redacted transcript of last week’s secret in camera session in the ongoing trial of convicted terrorists John Nuttall and Amanda Korody didn’t shed a lot of light on what went on behind those closed doors. But it did clarify a few points which have up until now been obscure.
And with Bruce’s subsequent decision that CSIS be compelled to turn over any records they have relating to an alleged source of theirs means that we may soon know quite a bit more.
The transcript’s release came after a legal challenge was mounted by a coalition of media organizations, which I wrote about last week. (You can view the transcript online; here is the opening portion of the hearing, and here is the (much lengthier and much more heavily redacted) in-camera portion.)
We now know that the extraordinary in camera hearing, extremely unusual in the Canadian judicial system, focussed on requests from the defence for the disclosure of any records CSIS may have related to a certain [Redacted] X.
(In last week’s reporting on the issue, [Redacted] X was referred to as “Mr. X”, and at a few points in the transcript, despite the best efforts of the censors to black out all of [Redacted] X’s gender pronouns, it seems clear that X is male, but in keeping with the bulk of reporting on this case, and to emphasize the ridiculousness of all this redaction, I’ll be referring to [redacted] throughout as [Redacted] X.)
The defence alleges that [Redacted] X was likely a human source for the intelligence agency and that [redacted] had a major radicalizing influence on Nuttall.
This allegation, made by Nuttall through an affidavit presented by his lawyer, Marilyn Sandford, stands out clearly amidst a sea of blacked-out paragraphs and pages:
[Ms. Sandford]: Mr Nuttall advises that [redacted] X strongly encouraged him on many occasions to engage in violent terrorist acts and played a significant role in Mr. Nuttall’s radicalization. [P. 15]
The Province elaborates:
Sandford told the judge that Nuttall told her X had contacted Nuttall “out of the blue” and claimed to have met him previously, according to heavily-edited transcripts of the hearing.
She said that the context appeared to suggest that X was influencing Nuttall’s “big plan,” and added that it was Nuttall who initially contacted CSIS about some people he’d met at a local mosque, and then “mysteriously” X appeared on the scene.
Though there was no proof that X was a human source for CSIS, Sandford argued that if X was indeed such a source, it raised “serious questions” about the potential role of CSIS in inciting Nuttall to commit terrorist acts.
Sandford said that X’s involvement was potentially an abuse of process and potentially amounted to entrapment.
Sandford’s argument that manipulation by a CSIS human source could constitute entrapment is, incidentally, a novel legal argument; by Sandford’s own admission, there are no known cases of entrapment being committed by anybody other than a police officer.
Still, it’s Nuttall’s assertion that an alleged CSIS source encouraged him to commit violent acts of terrorism that is the headline-grabbing statement, and it is indeed an extraordinary claim which, if true, would constitute a major scandal for CSIS and would greatly undermine the Crown’s case.
But it’s not exactly news that CSIS may have had some shady involvement in this case.
The role of CSIS has long been a matter of dispute before the court. In late June of last year, this alleged involvement exploded into the headlines, as precisely these same allegations were aired before the court in an effort to get the RCMP, which conducted the sting operation against Nuttall and Korody, to turn over any documentation they may have related to CSIS involvement.
Those documents wound up consisting of a single-line notification from CSIS to the Mounties indicating that Nuttall may be a threat to national security. Both Sandford and Justice Bruce were unsatisfied with this, and Bruce suggested that CSIS may have communicated a great deal more to the RCMP verbally in order to avoid trial disclosure of documents.
Here, as far as the public was aware, the defence’s quest for documents seemed to go cold. But as we learned from the transcripts, they took the fight directly to CSIS itself, which necessitated a change of courts. Under Section 18.1 the CSIS Act of 2015, passed in the dying days of the last Harper Parliament, the Federal Court of Canada has exclusive jurisdiction to hear applications for disclosure from CSIS.
Sandford therefore appealed to that court in July 2015, and the proceedings there were subject to numerous delays on the part of CSIS which were egregious enough to provoke concern from the presiding judge. The proceedings also included an in-camera hearing in which the defence was not even allowed to be present, and had the process continued, CSIS would have been allowed to file their arguments to the judge on a confidential basis.
To be clear, this is apparently standard procedure for this type of case – secret one-sided court sessions and Crown arguments to which the defence has no access and no right of reply.
In November, a different judge in a separate case found that the CSIS Act did not apply retroactively, and as it was passed well after the events in question occurred, the whole process was terminated and transferred back to B.C. Superior Court for Justice Bruce to rule on.
In other words, the defence have been trying for nearly seven months to gain access to these documents, with CSIS stonewalling them at every step along the way.
In last week’s closed hearing, the Crown attorney, Peter Eccles, employed numerous lines of argument to try to convince the court not to compel CSIS to turn over any records they may or may not have about this alleged human source, but the one he came back to repeatedly and with the most force was John Nuttall’s inherent unreliability.
Eccles argued that the court had no evidence to prove Nuttall’s assertion of radicalization at the hands of [Redacted] X, nor indeed did they have any new evidence of any sort, merely a recap of points which had already been made at trial. Besides all this, as RCMP investigators had pointed out repeatedly in their testimony, Nuttall is prone to exaggerating and fabricating incidents.
He had to walk a pretty fine line with these argument, though, because they had the potential to pretty directly undermine a few key elements of the Crown’s case.
First of all, if the defence’s affidavit was entirely built on old information plus an unfounded allegation, what exactly was the purpose of conducting an in-camera hearing to hide sensitive information from the public?
Secondly, and more importantly, if Nuttall was such an inherently unreliable source, then why did RCMP officers so readily buy into the tall tales he told about his plans for jihad?
These concerns were shared by the Crown prosecutor who was assisting the RCMP during the sting operation, as testimony in the trial yesterday demonstrated:
[J]ust three weeks before arrests were made, a Crown prosecutor giving legal advice to RCMP operatives wrote to one of Project Souvenir’s senior officers. Martha Devlin revealed strong doubts about Nuttall and his capacity for committing terrorist acts.
“This guy really is a nut. Not sure there’s anything here,” Devlin told the Mountie, in an email exchange described in court this week. “My impression is, he has no plan and just sort of makes stuff up.”
Why would the advising prosecutor say that? Because, as the court has heard many times, Nuttall was prone to making ludicrous claims to undercover operators. At one point he said he’d witnessed unmarked white airplanes flying over his Surrey, B.C., home, making “chemtrails” to control population growth. “The next day I blow my nose (and) this yellow dust comes out of my nostrils,” he told one undercover Mountie.
Nuttall also bragged of having access to secret military information. The U.S. military had installed intercontinental ballistic missiles at a tiny Canadian Navy facility on Vancouver Island, he told an undercover Mountie. And “256 Canadian soldiers just returned from Afghanistan in Esquimalt (near Victoria). They came off submarines that came in here … and (on) a freighter and a battleship.”
These claims were, of course, completely baseless, and the Crown does have legitimate grounds to question Nuttall’s reliability as a credible source. (Eccles also cites [p. 48] as evidence of Nuttall’s unreliability a mysterious “poison samosa incident” which apparently came up earlier in the trial and which I’d love to know more about, and recounts an anecdote in which RCMP surveillance footage captured Nuttall slipping and recovering, an event in which Nuttall later told investigators he hit his head badly and “could have died”.)
But if indeed Nuttall is prone to just making stuff up, then doesn’t that suggest that the grand plans with which he regaled undercover RCMP officers – to hijack a nuclear submarine, or to build missiles and launch them at Seattle – might also have been unfounded nonsense spouted to provoke a favourable reaction from people Nuttall wanted to impress, rather than the evidence of serious intent to commit terrorism that the Crown contends it was?
Eccles can’t have it both ways – Nuttall cannot be a credible source when making vague jihadist threats and an unreliable source when accusing somebody of possibly being a CSIS human source.
In the end, Justice Bruce didn’t buy into Eccles’ arguments, nor the case brought forth by CSIS attorneys, much of which is also heavily redacted. Bruce ordered CSIS to turn over any records they have in relation to this alleged human source, as the Vancouver Sun details:
Justice Bruce on Jan. 6 ordered [CSIS] to produce any material in its possession about person X and Nuttall under a set of conditions that will protect its secrecy until its import is determined.
She said it may be “relevant to whether the RCMP initially had grounds to investigate based on a reasonable suspicion that (Nuttall) was already engaged in criminal activity or part of a bona fide inquiry. What transpired between X and Mr. Nuttall is also likely relevant to his particular vulnerabilities that may or may not have been exploited by the RCMP during the undercover operation.”
If [Redacted] X was unaffiliated with CSIS, there will obviously be no records to produce; if, on the other hand, [redacted] was a human source for CSIS, then we can expect more courtroom clashes over whether the records are relevant and have any bearing on the case. The Sun also reports that CSIS wants another secret hearing before the process can proceed any further, meaning that media organizations are doubtless gearing up for another round of litigation.
A few things are clear at this point.
One is that CSIS will fight this process at every step of the way, with every procedural tool at its disposal. They do not want a precedent established that there are cases in which information about their (alleged) human sources is subject to disclosure to the courts, and that is no doubt doubly true if Nuttall’s assertions are in this case well-founded.
The other is that the Crown’s case rests heavily on the delicate proposition that Nuttall’s (and to a lesser extent Korody’s) statements about jihad and professed plans for criminal acts of terrorism were credible and serious, a case which is becoming increasingly difficult to maintain as Crown attorneys are forced to disparage Nuttall’s reliability in other contexts. And now, in addition to having the RCMP’s fingerprints all over every aspect of Nuttall and Korody’s “plot”, we now have the very real possibility of CSIS involvement in their radicalization to contend with.
The longer the entrapment phase of these proceedings goes on, the stronger the case for the defence is looking.
It may be a while before we know the facts underlying this whole mini-drama of the possible CSIS source’s role in radicalizing Nuttall. We may never know the whole truth about what happened. But Justice Bruce’s order to CSIS is a necessary first step towards untangling this mess and getting to the bottom of what could turn out to be scandalous behaviour by a CSIS source.