The police investigation into the couple accused of plotting a terrorist attack on Canada Day may have involved the assistance of U.S. authorities and the controversial Mr. Big technique, the couple's lawyer said on Tuesday.
Tom Morino, legal counsel for John Nuttall and Amanda Korody, made the comments after the suspects briefly appeared in Surrey provincial court on Tuesday morning. The case is in the process of being transferred to the B.C. Supreme Court.
Mr. Morino said it was his understanding that U.S. authorities were involved in the investigation, but did not say which agencies may have taken part. "I believe I know, but I have to wait until I've had the opportunity to review the materials," he said.
The RCMP said in an e-mailed statement that it would not "respond to the comments of Mr. Morino as the matter is currently before the courts."
Mr. Morino also indicated the undercover aspect of the investigation may have included a technique that has drawn controversy in Canada for years.
"While it's very premature, it's my understanding that there was, as we've all come to know it, a 'Mr. Big' operation," Mr. Morino said. "There was that component to this investigation."
The Mr. Big technique uses undercover officers posing as underworld kingpins to draw out confessions about past crimes. Defence lawyers have argued these confessions are unreliable, and in 2012, the Newfoundland Court of Appeal overturned a murder conviction due to concerns over the technique. The Supreme Court of Canada announced this year it will hear the Crown's appeal of the case.
But the Mr. Big technique is used specifically by police to get confessions about crimes that have already been committed, making it unclear how it would apply to an alleged terrorist plot that hadn't yet taken place.
"The Mr. Big technique differs from routine kinds of undercover tactics," said Kouri Keenan, a PhD criminology student at Simon Fraser University who co-wrote a book on the technique's use in Canada. "Rather than infiltrate a criminal organization, the undercover officers create one."
The ultimate goal of the operation is to extract evidence that can be use to convict the suspect in a trial.
"They carefully weave this fake world around their target, introducing him into what they see as a legitimate organized crime gang," Mr. Keenan said. At a certain point, an investigator posing as the leader of the organization – Mr. Big – attempts to elicit a confession about the crime in question.
Peter Copeland, a defence lawyer from Toronto who has specialized in Mr. Big cases, said the technique causes problems when the confession is extracted in "an unduly coercive environment" that the fictitious criminal gang puts the suspect in. In the case of a terrorist plot, he said it was possible the creation of a false world around the suspect would create concerns of entrapment.
"I would draw a distinction between a traditional Mr. Big technique and entrapment … but there doesn't necessarily have to be a bright line," Mr. Coleman said.
Outside court on Tuesday, Mr. Morino said he expects the evidence will show aspects of entrapment in the investigation into Mr. Nuttall and Ms. Korody. "I think it's safe to assume there were certain elements of that. As for whether it constitutes the legal definition of entrapment, that remains to be seen," he said.
Mr. Nuttall and Ms. Korody have been held in solitary confinement since their arrest, Mr. Morino said. "It's 23-hour lockdown, they're allowed out for one hour a day."
When he appeared in court, Mr. Nuttall had shaggy hair, an unkempt beard and was holding a Koran. Ms. Korody entered the room shortly after and was seated in a separate box. Her face broke out in a huge smile when she saw Mr. Nuttall, who was seated with his back to the gallery.
The two suspects are scheduled to appear in B.C. Supreme Court on Wednesday morning in Vancouver, when Mr. Morino is expected to ask for a delay in proceedings for a bail hearing until he is able to study the evidence.
Editor's Note: Lawyer Peter Copeland was misidentified as Peter Coleman in a previous online version of this article, and in Wednesday's print edition. This version has been corrected.