A B.C. judge's harsh rebuke of an undercover RCMP terrorism sting and her decision to let the hapless couple who plotted to blow up the B.C. legislature walk free puts such U.S.-style investigative techniques clearly out of bounds in Canada and will force police to rethink their methods, lawyers and security watchers say.
On Friday, B.C. Supreme Court Justice Catherine Bruce refused to register the convictions against John Nuttall and Amanda Korody, agreeing with defence lawyers who said the pair were manipulated into planting what they thought were pressure-cooker bombs that would go off during Canada Day celebrations in 2013.
Although jurors found the pair guilty, Judge Bruce noted in a sharp criticism: "The world has enough terrorists. We do not need the police to create more out of marginalized people."
Lawyers for the pair described them as low-income former drug addicts who were easily manipulated. Mr. Nuttall had a criminal record for drug-related offences, mischief and carrying a concealed weapon, and was sentenced in 1996 for kidnapping and robbery as well as aggravated assault.
Court heard Mr. Nuttall proposed terrorist plots that had little basis in reality, including stealing a nuclear submarine and firing rockets across the U.S. border, and hijacking a passenger train that no longer ran. Out of concern he might be killed at a meeting with an undercover officer, Mr. Nuttall brought a paintball gun that had been modified to shoot marbles. Court also heard the pair tried to will themselves to forget a person's name.
"Realistically, the defendants had proven themselves to be marginalized, isolated people who espoused extremist jihadi views, but were neither motivated to act on their beliefs nor capable of taking steps to accomplish acts of violence in support of their beliefs," Justice Bruce wrote.
Mark Jette, lawyer for Ms. Korody, said he expects the RCMP is learning from the high-profile case, noting that further terrorism investigations are likely going on now.
"In any situation, surely the police must step back and say, 'What can we learn from this?' I know the RCMP do that. They're not stupid. And they don't want to fail."
Marilyn Sandford, lawyer for Mr. Nuttall, played down suggestions the ruling will have widespread impact. Instead, she said, it ensures such sting techniques do not take hold as acceptable investigation methods.
"This was a one-off. This was an aberrational investigational strategy based, in large part, on what's in the U.S.," Ms. Sandford said in an interview.
In the United States, such investigations probably would have withstood court scrutiny. But in Canada, she said, "Our law is far more appreciative of personal vulnerabilities and, of charter rights, and not wanting to manufacture crimes."
She said she doubted the RCMP will be in that situation again. "I suppose had the judge said it was all fine, it might happen again," Ms. Sandford said. "I would guess the RCMP are going to take this seriously to heart and realize that lines were crossed here. Perhaps there wasn't enough oversight."
The pair's trial heard that the RCMP focused on the couple after the Canadian Security Intelligence Agency informed the Mounties in 2013 that Mr. Nuttall had tried to buy potassium nitrate, which can be used to make explosives. As a result, the Mounties launched a Mr. Big sting. An undercover Mountie posing as an Arab businessman approached Mr. Nuttall, beginning a scheme over five months in 2013 that included a four-day trip to Kelowna to finalize a terrorist plot.
Eventually, the couple were arrested after planting three explosives made from pressure cookers that police had rendered inert on the grounds of the B.C. legislature. Although convicted by a jury in 2015, Justice Bruce held off registering the convictions pending the legal arguments by the defence that the pair were entrapped by the RCMP.
Justice Bruce noted in her ruling that, "during the trial there was little dispute as to what had occurred during the police investigation into the defendants' activities because most of the interactions between Ms. Korody and Mr. Nuttall, as well as the police interactions with the defendants, were audio and/or video recorded. The jury was provided with a lengthy chronology of events containing a detailed description of the words and acts of the defendants and the undercover police officers during the investigation."
The Mounties said in a statement on Friday that they respected the judicial ruling, but their efforts against terrorism will continue.
"The detection, disruption and deterrence of national security-related threats in Canada is a priority for the RCMP and its partner agencies. The RCMP and its partners remain committed to the safety and protection of the public," the statement said.
Michel Juneau-Katsuya, a former Mountie and operative with the Canadian Security and Intelligence Service, called the ruling a remarkable condemnation of the police. "We're not used to seeing the judge ruling that the police were the bad guys," he said in an interview from Ottawa.
Despite the profile of Friday's developments, law enforcement is used to victories and defeats, said Mr. Juneau-Katsuya, now the CEO of the security firm the Northgate Group Corp.
"It comes with the territory of law enforcement – sometimes you win; sometimes you lose," he said. "This is just reaffirming how challenging it is to remain within the rules of law, which we shall never abandon."