For nearly a year, defence lawyers for B.C. Legislature bombers John Nuttall and Amanda Korody have been doing everything in their power to compel the Canadian Security Intelligence Service (CSIS) to turn over evidence about the role one of their operatives or sources played in radicalizing the Surrey couple and encouraging them to commit violent acts of jihad.
Yesterday, after many interminable months of procedural delays and closed-door hearings, they abandoned those efforts.
Speaking in B.C. Superior Court, Marilyn Sandford, Nuttall’s attorney, told Justice Catherine Bruce that her client had simply had enough of waiting, and was willing to abandon his efforts to obtain this critical evidence if it meant the trial would be able to move forward.
“My clients have been in custody for a long time,” Sandford said. “They are anxious to proceed and they are anxious that there not be any further delay.”
“A long time” is certainly correct – Nuttall and Korody were arrested on July 1, 2013, at the climax of an elaborate RCMP sting operation involving over 240 officers. The pair were charged with multiple terrorism-related offences for planting inert pressure cooker bombs on the grounds of the legislative building in Victoria, and were found guilty of most charges last June.
But their trial has dragged on as their lawyers attempt to prove that they were entrapped by the RCMP into committing the plot. An entrapment finding would result in their convictions being reversed.
Even now, the pair are looking at a minimum of two more months before the entrapment phase of their trial concludes; final submissions aren’t scheduled to begin until June and may take several weeks.
As disappointing as this decision is, it’s completely understandable. As I wrote in February, when the pair’s attempts to get evidence from the spy agency left B.C. Superior Court for the more CSIS-friendly environs of the Federal Court of Canada, their trial could have been delayed indefinitely as CSIS deployed every procedural trick at their disposal to delay and deny their requests. Continuing to pursue this evidence could have meant many more months of legal limbo for Nuttall and Korody, and given the strength of the defence’s case to date, it’s entirely possible that the court will find in their favour on the question of entrapment even without firm answers about the murky role CSIS played in their radicalization.
There are a couple of points that I’d like to underline as we move on from this mysterious chapter of the trial.
First of all, CSIS was going to some pretty extreme lengths to keep this evidence under wraps. To begin with, they conducted counter-terrorist intelligence-gathering operations in the same small community mosque in which the RCMP were conducting a major counter-terrorist sting operation without communicating in writing with the Mounties. CSIS has a long history of using exactly this tactic to avoid having their name and their methods dragged into court proceedings. When defence lawyers that demanded the RCMP turn over any records they had relating to CSIS’s role in the operation, the Mounties could honestly answer that there was nothing there.
Then, when Nuttall and Korody’s efforts to secure evidence on CSIS’s involvement turned from the RCMP to CSIS itself, the agency employed so many procedural delays in the FCC that the presiding judge expressed concerns that they was acting in bad faith. Once an unrelated finding forced the proceedings back to B.C. Superior Court in January, CSIS requested – and received – an extraordinarily rare closed-door hearing, demanded the right to censor a redacted transcript of that hearing which was released to the press, and then flat-out refused to comply with Justice Bruce’s order that they turn over any documentation they had related to the case. It was this refusal – which apparently came all the way from the office of Jody Wilson-Raybould, the federal Justice Minister – which triggered the move back to the FCC in early February.
Those proceedings have either been subject to a publication ban, have happened behind closed doors, or haven’t been covered by the press, but based on Nuttall and Korody’s decision to abandon their efforts, CSIS has continued to be just as obstructive and uncooperative as ever.
This level of determined intransigence has been explained by CSIS as being a necessary defence of their sources and their methods. Throughout, they have refused to confirm or deny that anybody associated with the agency was in any way involved in the Nuttall/Korody affair in any way. These types of non-denial denials are of course routine for surveillance agencies, but as I pointed out in January, the level of secrecy CSIS was demanding (and receiving) from Justice Bruce was disproportional overkill:
There are, of course, completely valid and legitimate reasons to want to keep identifying details of certain people involved in court cases out of the news. And it’s done on a routine basis, not just for undercover operatives and informants, but also for minors and for victims of sexual assaults, to name just some examples. But it’s typically handled with a simple publication ban on identifying details.
This case has, by necessity, involved the use of multiple publication bans to hide the identity of the many undercover Mounties involved in the operation. These bans have worked perfectly well – I read virtually every article that comes out of this trial, and I haven’t got a clue what the actual identities of the undercover officers involved are. It would be entirely reasonable, in the case of this CSIS operative, for the Crown and DOJ to follow this standard practice and ask for a publication ban on any personally identifying details, and for the media to abide by that ban, or, to the extent that they found aspects of it overly censorious, to challenge those aspects.
That CSIS chose not to take this route, and instead attempted to conduct all discussion of the matter behind closed doors and bar the press from even reporting that they couldn’t report what was going on, is indicative of a desire to keep more secret than the possible existence of a source. In fact, their pattern of behaviour lends credence (albeit circumstantially and inconclusively) to the defence’s allegations that a CSIS source was largely responsible for radicalizing John Nuttall and encouraged him on multiple occasions to engage in violent jihad. Surely the agency would go to great lengths to prevent this information from becoming public.
Now that Nuttall and Korody have elected to proceed with their trial without this critical evidence from CSIS, we may never know the full truth of the matter. But CSIS’s disruptive and uncooperative behaviour is likely precedent-setting; the agency has established that they are willing to subvert legal norms and defy court orders for disclosure, and they have suffered no consequences for these actions.
Secondly, as sketchy and disreputable CSIS’s conduct was during this trial, the Nuttall and Korody trial likely represents one of the last opportunities for the agency’s conduct to be meaningfully examined in open court. Under C-51, the surveillance agency has expansive new powers which will enable them to act far more aggressively and secretively in counter-terror operations, all while avoiding any legal scrutiny.
Those powers, which will likely remain mostly or completely intact after the Liberal government passes whatever meagre reforms they have planned, enable CSIS to take a far more active role than the agency has been used to in the past, while simultaneously avoiding legal oversight in much the same way that they did in the Nuttall and Korody case. Privacy experts Kent Roach and Craig Forcese explained the situation succinctly in a Walrus article last year:
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 andRCMP 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.
We now know that CSIS is using its new powers, although of course we don’t really know how, or how often, or against whom, and as things stand we never will. We only hear the evidence they choose to release publicly, with the spin they choose to put on it – director Michel Coulombe told a Senate committee that the “tools” have been used to disrupt roughly two dozen “terror threats”, and the agency has been rigorous in establishing standards to ensure the powers aren’t abused. As proof of all this, he offered nothing.
As secretive as CSIS’s behaviour was during this trial, at least we knew that they were trying to hide something. As outrageously offensive as the RCMP’s self-aggrandizing efforts at entrapping Nuttall and Korody were, at least they’re being examined in an open court. In a post-C-51 Canada, a case like this could be handled very differently – quietly, secretly, without the RCMP and its legally cumbersome requirements, and without review by anybody but a committee of toothless Parliamentarians meeting behind closed doors.
That a full repeal of C-51 is completely necessary is obvious to many, but I don’t see much acknowledgement in the #RejectFear community of the fact that the pre-C-51 surveillance environment was already pretty broken. Repeal of C-51 simply puts us back into a legal environment where the RCMP can blatantly entrap people and CSIS can bully judges and defendants into allowing them to keep critical evidence secret.
As things stand, however, CSIS’s ability to operate in near-total secrecy and with near-total impunity looks to continue indefinitely. Given what we know about their track record in the Nuttall/Korody affair, that’s terrifying.
Lastly, despite the fact that the defence must now move forward without the disclosure they were seeking from CSIS, in my estimation they still stand a very good chance of securing a finding of entrapment.
Documentary evidence of a CSIS source encouraging Nuttall to commit violent acts of jihad would have been electrifying, but as even defence lawyer Marilyn Sandford noted, there is no precedent for entrapment laws being applied to surveillance agents or sources.
Meanwhile, the case for finding that the RCMP entrapped the pair is quite strong, as I’ve argued before:
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.
Even senior Crown prosecutors working with the RCMP on the case expressed their reservations about Nuttall’s competence and capacity for committing terrorism. “My impression is, he has no plan and just sort of makes stuff up,” Martha Devlin told senior Mounties involved in the investigation just weeks before the “attack”. In late June 2013, worried that all their effort was going to be wasted as Nuttall expressed a desire to back out, the RCMP brought in an officer they characterized as a “closer” to get the job done. Within a week, the pair has planted their dud bombs.
If all of that doesn’t paint a picture of entrapment, then I don’t know what would.
Justice Bruce has already ruled that the RCMP acted illegally in the course of the operation, a necessary but not sufficient prerequisite for an entrapment finding. And she seemed to be sympathetic to the defence’s efforts to obtain documents from CSIS – although perhaps this was prompted more by CSIS’s contempt of court than anything else. Although trying to guess which way a judge is leaning is a fool’s game, there at least isn’t evidence to suggest Bruce is hostile towards the defence’s line of argument.
In short, there is a reasonable prospect of success for Nuttall and Korody, even without the CSIS evidence. It’s a shame we’ll never know exactly what happened, but ultimately, justice could still be served.
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