THE TROUBLING QUESTIONS AFTER TERROR TRIAL
Was investigators’ conduct so flawed that convicted couple should be freed?
The Canada Day terror plot trial has wrapped up, except for final submissions on whether the RCMP entrapped the hapless Surrey drug addicts convicted of the murderous 2013 scheme.
John Nuttall and Amanda Korody will have been imprisoned for three years by the time B.C. Justice Catherine Bruce retires to deliberate this summer.
Convicted by a jury last June of conspiracy to commit murder and possession of an explosive substance for terrorism, the pair faces life imprisonment.
The verdict has been on hold, though, while the judge considered defence allegations that someone associated with the Canadian Security Intelligence Service may have helped radicalize the couple in 2012 and set them up to be victimized by a sophisticated RCMP sting marred by misconduct.
There is much that is troubling about this case.
During the several months they were under surveillance by police and CSIS from late 2012 until their arrest on July 1, 2013, Nuttall and Korody were obviously vulnerable and challenged individuals. The pair, who converted to Islam in 2011, some days went hungry, unable to make their welfare last, and were struggling to repair damaged lives after years of living on the street battling addiction.
Surviving on a single methadone prescription in a suburban basement suite, they were lonely, dysfunctional people who saw as a veritable saviour the disguised RCMP officer who befriended them.
The officer, who cannot be named or described, pretended to be a jihadist Arab businessman.
He encouraged the couple’s Islamic extremism while creating the impression he had access to money, resources and a band of mujahedeen at his beck and call.
Video and audio surveillance from the massive undercover operation indicated the pair would have done anything to please him and gain the sense of belonging, purpose and better standard of living he appeared to offer.
Hours after planting inert explosive devices at the legislature, they were arrested while en route to what they believed was a private plane waiting to fly them to a better life.
There is no question they were needy poor people; no question they were not brain surgeons; no question they were not in the happy, average-Canadian-family snapshot.
They were disturbed people. The poisonous bile that poured from their lips, the scale of the slaughter they plotted, their professed enthusiasm for butchery in the name of Allah …
The question for the judge, however, is whether police misconduct in the investigation so tarnished the administration of justice as to demand a stay of proceedings.
The couple’s sang-froid, their state of mind was no longer important after the verdict; the legal focus shifted to police conduct.
The RCMP were impugned for facilitating terrorism, plying the couple with gifts, small sums of money, trips, exploiting their emotional neediness and generally waltzing them down the garden path.
Still, while the Mounties paved the road to hell, they did not appear to drag or entice the couple down the slippery slope: The police made no offer that they couldn’t refuse, put no gun to their head.
Yes, the police could have been more empathetic to the plight of the less fortunate and mentally compromised, and I wonder whether an operation of this magnitude and expense was necessary. But did RCMP behaviour rise to a level of misconduct that tarnished the administration of justice — especially given the nature of the offence, the planned massacre of women, children and men?
That is the biggest hurdle defence lawyers face — did police really create a dynamic in which the average person, for fear or favour, might have committed this offence?
Since we’re talking about constructing pressure-cooker bombs to detonate during national day celebrations causing maximum carnage, I don’t think so, having heard the evidence.
Note that Justice Bruce has not shown the common-law couple much love in this case. She refused to extend to them the ancient marital shield against conspiracy charges.
The defence of entrapment should succeed only in “the clearest of cases,” the Supreme Court of Canada said, and in my view, this is not one of them.
Although Nuttall appeared to be incapable of staging such an attack, he had a violent record and boasted of carrying a paintball gun modified into a lethal, marble-firing pistol. After receiv- ing the warning from CSIS that Nuttall was shopping for an explosives precursor, the police appear to have had legitimate reasons to target him.
Yes, this trial has revealed problems with the national security apparatus, with the anti-terror legislation’s lack of transparency, with the difficulties these prosecutions pose and shown the need for civilian political oversight.
It also raised issues about the risk posed by individuals such as Nuttall and Korody, how best to deal with those people, the tension between national security officers and major crime investigators and the involvement of justice department lawyers in operational police decisionmaking.
But have we heard proof of police misconduct that would constitute entrapment or abuse so offensive that Justice Bruce should issue Nuttall and Korody get-out-of-jail-free cards? I don’t think so. Perhaps defence lawyers will be more persuasive in June.