The trial of Canada Day bombers John Nuttall and Amanda Korody has been indefinitely suspended after CSIS once again refused to turn over documents relating to their involvement in the plot.
Specific details on the reasons for the delay seem to be subject to a publication ban, as much of the past several weeks of the trial have been. But what is clear is that Canada’s spy agency is committed to doing everything in its power to keep its role in the affair under wraps. After weeks of efforts by the defence and the judge to compel CSIS to disclose any documentation they may have relating to an alleged human source of theirs, whom Nuttall says radicalized him and repeatedly urged him to commit violence in the name of Islam, the spy agency continues to stonewall.
For those unfamiliar with the Nuttall/Korody trial, here’s a brief rundown:
[T]he pair of ex-heroin addicts and recent converts to Islam were the subjects of a massive RCMP undercover sting operation. The ultimate conclusion of this operation was the planting of (completely inert) pressure cooker “bombs” on the grounds of the British Columbia legislative building’s ground on Canada Day 2013 by Nuttall and Korody, and the arrest of the pair by the RCMP to national acclaim.
As their trial has wound on, however, it has become increasingly clear that the RCMP didn’t so much foil the plot as fabricate it entirely, providing the clueless and unmotivated Nuttall and Korody with all of the cash, the training, the planning, the transportation, and the encouragement/intimidation necessary to ensure that the plot happened. The competence, willingness and ability of the pair to execute the plot on their own has been called into question multiple times throughout the trial.
Nuttall and Korody were found guilty of terrorist offences in mid-2015, but their trial continues as the defence seeks a finding of entrapment. If it is proven that the pair were manipulated into this plot by their RCMP handlers, the conviction will be thrown out.
In recent weeks, news of the trial has been dominated by allegations of shadowy CSIS involvement in the operation. There have been multiple closed-door hearings from which the public and press were barred as lawyers for the spy agency argued against defence requests for more information. In the end, B.C. Supreme Court Justice Catherine Bruce, the presiding judge in the case, ruled in favour of disclosure. Lawyers for Nuttall and Korody have been seeking this disclosure since last June, but it looks like it will take more than a court order to get it – as of yet, CSIS hasn’t complied. Madam Justice Bruce took CSIS’s lawyer to task this past Tuesday for the agency’s intransigence:
CSIS lawyer Donnaree Nygard told the judge she had no further information to provide as to why CSIS has yet to obey the order.
The judge said the lack of compliance was of “great concern” to her and was causing a delay in proceedings.
She said that if Nygard cannot provide an answer, she wanted a representative from CSIS to explain why she should not find the spy agency in contempt of court…
Nygard appeared later in the day and told the judge that the Attorney-General of Canada is expected to take days or several weeks to decide whether to disclose the materials.
If the attorney-general decides to withhold the material, citing a national security issue, the matter will be heard in the Federal Court of Canada.
The Minister of Justice and Attorney-General of Canada currently is Jody Wilson-Raybould, and her handling of this matter will be yet another indication from the not-so-new-anymore Liberal government on how they intend to handle surveillance issues in the wake of recent spy scandals.
If indeed the matter does end up before the Federal Court of Canada, it won’t be the first time. Lawyers for Nuttall and Korody argued for disclosure before that court for several months last year, before eventually being told that the court lacked proper jurisdiction to consider the matter. The proceedings before that court were marked by numerous and lengthy delays, and also featured at least one closed-door hearing from which the defence was barred. Had proceedings continued, CSIS would have been permitted to submit their arguments secretly and in writing. (For a detailed rundown of the defence’s seven-month-plus quest for these CSIS documents, see my summary here.)
Clearly, the FCC is a more friendly environment for CSIS than Madam Justice Bruce’s courtroom. Bruce has consistently denied the spy agency’s request for absolute secrecy, allowed the release of redacted transcripts of the court’s closed sessions, and ultimately ruled in favour of disclosure. CSIS undoubtedly feels that they stand to lose nothing by digging in their heels, making top-secret national-security-related my-dog-ate-my-homework excuses, and hoping the whole matter gets thrown back into the FCC, where it will take god knows how much longer to resolve and where they can operate in the secretive, defence-lawyer-excluding manner to which they are more accustomed.
In the meanwhile, the status of the ongoing trial is somewhat unclear. Lawyers for the defence argue that they can’t rest their case without first gaining access to these CSIS documents, as they may provide further strong evidence that Nuttall and Korody were entrapped. This effectively puts the proceedings in a state of limbo. One lawyer Global News spoke to predicted that the matter of CSIS disclosure could take a long time to wind its way through the court system, and could potentially wind up in front of the Supreme Court of Canada. The cost to taxpayers for the delay could be in the millions, he says, and all because CSIS is unwilling to comply with a basic tenet of the justice system:
“There appears to be a significant amount of disclosure from CSIS that they just don’t want to give up,” says Vancouver lawyer Paul Dorshenko, who is not involved in the case.
“It’s abhorrent really in our justice system to keep information from an accused that could be used to defend themselves.”
The news of the trial’s suspension comes on the heels of a week of damning testimony by a prominent Islamic expert, who condemned the behaviour of undercover RCMP police officers in the elaborate sting operation.
Omid Safi, head of Islamic studies at Duke University in North Carolina, was scathing in his discussion of the behaviour of undercover Mounties. He discussed the refusal of Nuttall’s handler to allow Nuttall to get advice from any outside source. Nuttall was repeatedly discouraged from discussing his concerns, apprehensions, and uncertainties with an imam, and was even forbidden to speak to his mother about his plans. These types of behaviours – barring somebody from associating with certain people, encouraging them to cut off contact with their families – will be familiar to many as red flags of abusive/coercive/controlling relationships.
Safi characterized the interpretations of Islam offered by undercover officers as “dubious” and “eyebrow-raising”, and argued that the pair were confused about their newfound faith and would have been much better served by spiritual counselling with moderate religious leaders.
Safi’s testimony was the latest argument in favour of an entrapment finding, the case for which grows stronger with each passing month. It is entirely possible that Madam Justice Bruce would rule in the defence’s favour even without the inclusion of evidence relating to CSIS’s involvement. But understandably, this is a gamble that the defence appears unwilling to make.
Going forward, it’s doubtful that the public will get many updates into this trial, as CSIS will seek to have its proceedings conducted behind closed doors and its progress shrouded under secretive publication bans. A lot now depends on how Minister of Justice Judy Wilson-Raybould, in conjunction with CSIS’s top brass, decides to handle this case. If it does wind up returning to the Federal Court of Canada, I fear we won’t hear another word about it for a very long time.