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John Nuttall and Amanda Korody are seen in undated photos. (THE CANADIAN PRESS)

Were these accused
terrorists entrapped?

Lawyers for couple convicted of plotting to plant explosives near legislature say RCMP used inducements on vulnerable people, writes Sunny Dhillon

John Nuttall and Amanda Korody were high.

In June, 2013, the Muslim converts were at a hotel in the Okanagan city of Kelowna, where they were supposed to be working on a terrorist plan to kill revellers and first responders during an attack at the British Columbia Legislature grounds on Canada Day.

But the husband and wife, heroin addicts who had rarely ventured far from their Surrey basement suite and subsisted on welfare payments, spent much of their time smoking marijuana and playing video games.

It was on that trip, defence lawyers say, police “finally crossed over their own self-imposed line in the sand.” It was then, the defence argues, that the RCMP went from investigating a crime to manufacturing one.

Mr. Nuttall and Ms. Korody were arrested on July 1, 2013, hours after they placed potentially explosive pressure-cooker devices outside the legislature in Victoria. The plot was international news. The couple were found guilty by a jury in June, 2015, 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 their convictions have not been entered. Mr. Nuttall and Ms. Korody have argued that they were victims of police entrapment and, a year after those arguments began, Justice Catherine Bruce of the B.C. Supreme Court is to deliver her decision at the end of this month.

A courtroom sketch of John Nuttall and Amanda Korody during an appearance in provincial court in July, 2013.

The Public Prosecution Service says there have been entrapment motions in three Canadian terrorism cases; none was successful. But there is one key distinction in this case: Instead of manipulating Mr. Nuttall into confessing a past crime, the officers tried to determine what he and Ms. Korody would be willing to do in the future.

The court heard that the RCMP began looking at Mr. Nuttall after the Canadian Security Intelligence Service told the force in early 2013 that he had tried to purchase potassium nitrate, which can be used in explosives.

The Mounties had been contacted about Mr. Nuttall before. A man he met at a mosque in 2011 told police that Mr. Nuttall had talked about fighting a holy war in Afghanistan.

RCMP tactics revolved around a Mr. Big sting – a technique in which undercover officers bring a target into a purported criminal operation and hope that target will confess to a past crime. An undercover RCMP officer approached Mr. Nuttall, pretending to look for a missing niece. The officer posed as an Arab businessman and Mr. Nuttall almost immediately told the Mountie that he had plans for jihad. Mr. Nuttall also claimed to be a hacker who could bring down the computer systems of the government of Israel.

Mr. Big

The undercover operation that targeted John Nuttall and Amanda Korody was similar to a controversial tactic known as a “Mr. Big” sting, with some important differences.

In a typical Mr. Big operation, undercover officers make contact with suspects and then invite them into ficticious criminal organizations. As the targets get further into the organizations, they eventually meet the boss – Mr. Big – who demands complete honesty with the promise that any problems can be made to go away. The goal is to ellicit a confession, which is recorded as evidence.

In the B.C. terrorism investigation, there was one key distinction: instead of having Mr. Nuttall confess a past crime, the officers tried to determine what he and Ms. Korody would be willing to do in the future. One officer in his testimony described the investigation as a “non-traditional” Mr. Big. The Crown described it as an “innovative and effective undercover investigation.”

Harout Haladjian, a Montreal defence lawyer, said the RCMP’s use of the Mr. Big technique in this case was “unusual.” because the strategy is typically deployed to determine what a person did in the past.

Mr. Haladjian said he will be interested to see how the judge rules on the entrapment claim, particularly since the Supreme Court of Canada ruled on the Mr. Big technique itself in 2014. The high court called for new safeguards to prevent wrongful convictions and police misconduct.

Slightly more than three months later, the husband and wife were driven to Kelowna for the four-day trip that was intended to finalize the terrorist plot.

If the RCMP believed that the sting against Mr. Nuttall would be relatively simple, they were mistaken. Time and again he stymied undercover officers by offering terrorist plots that had little basis in reality. His plans included stealing a nuclear submarine and firing rockets across the U.S. border. He was so concerned that he would be killed at a meeting with the primary undercover officer in May – after he proposed hijacking a passenger train that no longer ran – he brought a paintball gun that had been modified to shoot marbles.

Even Justice Bruce has questioned Mr. Nuttall and Ms. Korody’s intellects, last month referring to+ an incident in which the husband and wife tried to will themselves to forget a person’s name.

The Crown argued that the police conduct Mr. Nuttall and Ms. Korody complain of would not have induced an average person to carry out the offences. It said it did not warrant a stay of proceedings.

Prosecutor Peter Eccles told the court last month that Mr. Nuttall and Ms. Korody set the pressure-cooker devices to explode 15 minutes apart, not knowing that the RCMP had already rendered the devices inert. He said the couple wanted the first explosion to kill or maim innocent bystanders, and the second to target first responders and emergency personnel.

“They did it because they wanted to,” Mr. Eccles said.

The allegations against police – and they are still only allegations – might seem more at home in a U.S. case than a Canadian one.

A 2014 Human Rights Watch report dealt with more than two dozen U.S. terrorism prosecutions and raised concerns about aggressive sting operations, among other things. It said the Federal Bureau of Investigation at times “may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target’s willingness to act.”

The leading entrapment case in this country was heard by the Supreme Court of Canada in 1988. Norman Mack had been convicted of trafficking, but he argued that he sold drugs only because of a police informant’s persistence, use of threats and inducement of a large amount of money. Mr. Mack was a former drug user.

The court ruled in Mr. Mack’s favour, setting his conviction aside and staying the proceedings. It said entrapment occurs when authorities provide a person an opportunity to commit an offence without reasonable suspicion the person is already engaged in criminal activity, and go so far as to induce the commission of that offence.

The court said factors that may be considered in determining whether police went too far include their persistence, use of deceit, fraud, trickery or reward, and the existence of any threats, implied or express.

Other factors include whether an average person in the position of the accused would have been induced into carrying out the crime, and whether the police exploited a person’s particular vulnerability, such as a mental handicap or substance addiction.

An image from an undercover RCMP video that was shown in court.

Douglas Jevning, who was one of two lawyers representing Mr. Mack at the Supreme Court, said in an interview that while his client’s case involved a drug offence nearly three decades ago, the ruling holds up today – even for a terrorism case.

“Either the police have a reasonable suspicion that the person that they targeted is engaged in criminal activity, or they don’t. And if they don’t have a reasonable suspicion, and they offer the person an opportunity to commit an offence, and they engaged in the type of behaviour that [the Mack ruling] talks about … I don’t think it matters what the crime is,” he said in an interview.

Mr. Jevning declined to comment on the case involving Mr. Nuttall and Ms. Korody.

Kent Roach, a professor at the University of Toronto faculty of law who has written about terrorism prosecutions, said one significant difference between entrapment laws in Canada and the United States is that juries decide entrapment south of the border. In Canada, the motion is decided by a judge, on a balance of probabilities.

Prof. Roach said juries are more prone to being influenced by the seriousness of an offence.

Perhaps the most well-known of the U.S. terrorism cases in which entrapment was alleged is that of the Newburgh Four. An HBO documentary about the case was released in 2014. The first man approached by an FBI informant initially refused to participate in an attack on an airbase. However, he later lost his job and agreed to participate for up to $250,000. Three other men also joined the plot after being promised a large payday. All four were convicted and handed mandatory and lengthy prison terms.

The sentencing judge did, however, offer some harsh words for law enforcement. The judge said the first man, James Cromitie, showed “buffoonery” that was “positively Shakespearean in scope.” The judge went on to say “only the government could have made a terrorist out of him.”

Lorne Dawson, co-director of the Canadian Network for Research on Terrorism, Security and Society, said the use of undercover police or informants in stings is not as prevalent in this country as it is in the United States.

But Prof. Dawson, who also teaches at the University of Waterloo, said he believes that Mr. Nuttall and Ms. Korody’s argument will fall short. He said they demonstrated their intent by planting the pressure-cooker devices, regardless of the help they received from police.

On Day 3 of the Kelowna trip, Mr. Nuttall and Ms. Korody briefly got down to work.

The primary undercover officer, at a meeting the afternoon before, told Mr. Nuttall that a significant amount of money had been spent and it did not come easy. He said it was from the hard work of other brothers, according to defence counsel’s closing submission.

Defence lawyers say the Mountie also disparaged Mr. Nuttall’s rocket plan and pushed the pressure-cooker plan on him. Mr. Nuttall had been told on the drive to Kelowna that he would be given the explosive C4, and defence counsel said it was on this trip that police “openly advocated for one particular plan above all others … with the result that it became their plan.”

A courtroom sketch of John Nuttall and Amanda Korody during their trial.

The Crown said Mr. Nuttall had agreed that the rocket plan was not feasible and wanted a larger body count than bombings in Boston a couple of months earlier in which pressure-cooker devices were used.

The day after the meeting, an audio recording captured Mr. Nuttall inside his hotel room telling Ms. Korody to research pipe bombs.

“I need this done. If this doesn’t get done, we are done. Get it? We will be dropped. We will be deleted,” he said, according to the defence submission. The submission was jointly filed by Marilyn Sandford, Mr. Nuttall’s lawyer, and Mark Jetté, Ms. Korody’s counsel.

This was not the only time Mr. Nuttall appeared to fear for his or Ms. Korody’s life. In addition to the incident with the marble gun, he later told his wife that he worried they would end up “wearing cement galoshes at the bottom of the ocean.” The Crown has said Mr. Nuttall and Ms. Korody were given opportunities to back out of the plot, but the defence has said the couple did not believe they could.

RCMP Sergeant Bill Kalkat, who led the investigation, testified that the Kelowna trip did not go as hoped. He said Mr. Nuttall and Ms. Korody accomplished little work, but did reaffirm their resolve to commit mass murder.

Defence counsel objected to several more elements of the police investigation. Ms. Sandford told the court that the undercover officers gave Mr. Nuttall flawed spiritual advice, dismissing his concerns about the morality of committing violence in the name of Islam.

Ms. Sandford said her client and his wife lacked money, weapons and even a mode of transportation before they were approached by undercover police. They had few friends and were dependent on methadone.

She said the Mounties did not give adequate consideration to Mr. Nuttall and Ms. Korody’s vulnerabilities. Both were highly suggestible, she said, noting Mr. Nuttall’s belief in a conspiracy about chemtrails and Ms. Korody’s mentions of being part of an “alien cult.”

Mr. Nuttall was in his late 30s when he was arrested and Ms. Korody was about a decade younger. They had previously resided in Victoria and spent time living on the street. Some of the friends they had expressed surprise when the couple were charged, saying that while Mr. Nuttall and Ms. Korody had seemed anti-establishment, they appeared to care more about rock and roll than anything else. Mr. Nuttall had played guitar in a rock band.

A U.S. expert on Islamic studies testified at the entrapment hearing and told the court that Mr. Nuttall appeared to be drawn to Islam because it could serve as a shorthand for his political grievances, particularly those involving the United States.

Ms. Sandford said that even if police had reasonable suspicion to launch their investigation, it should have become clear that Mr. Nuttall was not involved in terrorist activity and was “all talk.”

Mr. Eccles, the prosecutor, told the court that some of Mr. Nuttall’s plots might have seemed impractical but that’s how “lone-wolf terrorists” operate – they start with “crazy ideas” and then settle on one.

He said a nurse in 2012 said Mr. Nuttall may have been “developmentally delayed” but he was not diagnosed with a mental illness. There was even less evidence of a mental-health issue for Ms. Korody, he said.

One challenge the RCMP faced was how to wrap up the investigation. Mr. Nuttall and Ms. Korody felt very close to the primary undercover officer and the Crown said police could not simply walk away and wait to see what the couple would do.

There were no deradicalization programs in the Lower Mainland at the time, a fact Prof. Dawson said remains true today. He said Montreal and Calgary have such programs, and noted that the federal government has said it will create an Office of the Community Outreach and Counter-radicalization Co-ordinator.

Ms. Sandford acknowledged that the case involved a crime “that in 2016 I would expect the public would put very near the top, if not at the top, of their list of the most disturbing and alarming and serious of offences.”

But she said the RCMP undertook “an unprecedented operation in the manner in which it interacted with vulnerable targets and the manner in which it resulted in the manufacture of a crime.”

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