It was two weeks to Canada Day, and John Nuttall still hadn't settled on a terror plot. He and his wife had been taken to a Kelowna hotel by undercover RCMP officers posing as members of a terror network. It was only after that trip, his lawyer says, that Mr. Nuttall agreed to a plan involving pressure-cooker bombs after intense pressure from the officers, who told him he was wasting time and money with his unrealistic ideas – such as firing rockets across the U.S. border.
Mr. Nuttall and Amanda Korody were found guilty this week by a B.C. Supreme Court jury of conspiring to murder persons unknown and making or possessing an explosive substance – in both cases for the benefit of, or at the direction of, a terrorist group. But the judge in the case will not enter the verdicts until an entrapment argument is heard next month, and the convictions could be stayed.
Legal experts say Mr. Nuttall and Ms. Korody appear to have legitimate grounds for entrapment. The five-month police investigation resembled a Mr. Big sting but differed in a key way: Instead of confessing past offences to a crime boss, the accused went on to commit new offences for which they would ultimately be arrested. Michael Mulligan, a Victoria defence lawyer who was not involved in the case, said Wednesday the trial appeared to show that the couple did not have the idea for the plot until they were approached by police.
They discussed backing out of the plot hours before the explosive devices were to be dropped off at the B.C. Legislature on July 1, 2013, but ultimately decided they could not.
At another point, Mr. Nuttall expressed his fear of the undercover officers and said he was worried that he and his wife would end up in "cement galoshes" if they didn't finish building the devices.
"All those are sort of signs that what went on here may have been something that police actually induced to occur and just wouldn't have occurred but for the police getting involved with it," Mr. Mulligan said.
When asked about the Mr. Big element of the case, Mr. Mulligan said he could not recall the technique being used in such a manner before. Mr. Nuttall and Ms. Korody met several members of the apparent terror network, including one who was said to be the leader.
Mr. Mulligan noted that the Supreme Court of Canada placed stricter restrictions last year on Mr. Big cases.
"If you put enough pressure on somebody, experience tells us you can get people to confess to terrible crimes they had nothing to do with. When you apply similar techniques to a circumstance where plainly no crime has occurred at the time you get involved … there are even greater concerns about what exactly went on there," he said.
Eric Gottardi, a Vancouver defence lawyer who is also chair of the Canadian Bar Association's criminal justice section, said that, from what he's seen reported on the case, there appears to be "a very credible basis" for entrapment.
But he said it would take a great deal of courage for the judge to rule in favour of entrapment in such a prominent case, adding that entrapment arguments are typically made in street-level drug cases.
David MacAlister, an associate professor of criminology at Simon Fraser University, said it could be difficult for Mr. Nuttall and Ms. Korody to prove they were entrapped. He said very few people who make the argument are successful.
Marilyn Sandford, Mr. Nuttall's lawyer, said immediately after the verdicts that "the RCMP manufactured this crime, and that's not permissible in our law."
The Crown denied the couple had been entrapped.
Mr. Mulligan said the leading case on entrapment was heard by the Supreme Court of Canada in 1988. The court ruled in favour of the appellant, who said he only sold drugs after a police informant pestered him over the course of six months. The case also laid out how entrapment arguments should be heard – after a trial, Mr. Mulligan said.
Mr. Gottardi said having the trial before the entrapment argument offers the advantage of allowing all the evidence to have already been entered.