Defence argues RCMP entrapped hapless BC Legislature bomb plotters - could conviction be stayed?

RCMP explaining bomb plot - Carmine Marinelli/24 Hours photo

Judge orders document disclosure in case deciding if RCMP entrapped bomb plotters.

Bill Tieleman’s 24 Hours Vancouver / The Tyee column

Tuesday November 24, 2015

By Bill Tieleman

"In this case there is evidence that the RCMP's actions during Project Souvenir constituted the offence of facilitation of a terrorist activity." 

- BC Supreme Court Justice Catherine Bruce on BC Legislature bomb plot case

While police forces in France and Belgium battle fierce ISIL attackers, the RCMP is facing a potential entrapment ruling that could free two jailed but hapless B.C. "terrorists" convicted in the 2013 Canada Day bomb plot.

And even worse, presiding justice Catherine Bruce ruled in a disclosure decision last week where the defence is requesting RCMP solicitor-client communications that:

"I have found that the defence has raised a prima facie case that the RCMP violated s. 83.19 of the [Criminal] Code by providing money, services, and accommodation that helped them to commit terrorist activities."

"Illegality by the police can support a stay of proceedings based upon entrapment or the wider concept of abuse of process," she wrote.

Yes, while other police forces fight murderous armed extremists, the RCMP stands accused by a judge of possibly facilitating terrorism -- and could give John Nuttall and Amanda Korody a get out of jail free card!

Only in Canada, you say? Thank goodness!

The high-profile case RCMP codenamed Project Souvenir employed 240 officers for four months in an undercover investigation -- all to go after Nuttall and Korody, two methadone-dependent ex-drug addicts living on welfare in a Surrey basement suite, playing videogames and paintball.

Nuttall and Korody were wannabe al-Qaeda terrorists who couldn't mastermind their way out of a paper bag, defence evidence showed... until an RCMP undercover operative posing as a rich Arab businessman befriended them and assisted their plot.

Nuttall and Korody were convicted by a jury in June of conspiring to commit murder and possession of explosives for the benefit or on behalf of a terrorist organization for placing three pressure cooker bombs they wrongly believed were armed near the BC Legislature on Canada Day. (RCMP undercover agents ensured the bombs were inert.)

But that conviction cannot be registered until Bruce decides if the pair were entrapped by RCMP into taking their actions. If so, they could be off the hook.

Nuttall's defence lawyer Marilyn Sandford had an ominous warning after the conviction in June.

"The RCMP manufactured this crime, and that is not permissible in our law. We also have arguments that the police themselves committed crimes. They were involved in exactly the same activities as our clients were to a large extent, at least some of them," Sandford told media.

Crown prosecutor Peter Eccles disagreed outside the court, telling media: "They weren't entrapped. It was done using old-fashioned undercover police investigation technique."

'This trial is not a drama'

But now Justice Bruce in her disclosure decision appears to agree at least in part with Sandford.

And the Crown prosecution had already been in trouble with Bruce, coming very close to causing a mistrial for showing the jury a lengthy video that included police detonating a pressure cooker bomb that demolished plywood boards ringed around it.

"That dramatic video production... took my breath away with its impropriety," Bruce said to Crown prosecutor Peter Eccles in comments that were banned from publication at the time but subsequently made public in June after the jury was sequestered.

"I don't know how I can bring the jury from a state of inflammatory to a state of neutral after you have created this American-television view of this trial," Bruce said.

And Bruce also severely chastised Eccles again for raising arguments that the judge had ordered not be given to the jury.

In Eccles closing statement he explained and made a counter-argument against the defences of entrapment and duress -- but Nuttall and Korody's lawyers had never brought up in the trial.

"(This) is unspeakable... I've never experienced this before. Ever," Bruce told Eccles.

Eccles responded that the defence's closing arguments left the jury with the suggestion RCMP had manipulated and enticed Nuttall and Korody into the illegal activities, though the defence never used the words entrapment or duress.

When the jury returned, Bruce told them to be cautious about the Crown's "dramatic ending."

"This trial is not a drama. It is a real-life situation in which the guilt or the innocence of these two people are in your hands," Bruce said. "You must put aside the drama and focus on the evidence that you saw and you heard in this trial."

'Facilitated' crime

From the beginning of this case, defence lawyers argued that their clients were incapable of taking violent action on their own, even raising questions about their mental status and saying the RCMP's covert operation was a "Mr. Big" sting, where suspects are approached by an undercover operative posing as a big-time criminal who befriends them to win their confidence and gain evidence against them.

And as I wrote back in 2013, there are many examples in the United States of sting operations where clueless and troubled individuals have been convicted of terrorist plots after undercover agents and informers "facilitated" their crimes in astonishing ways.

James Cromitie was an ex-drug dealer working at Wal-Mart when an FBI informant promised him $250,000 and a new BMW vehicle to fire surface to air missiles at U.S. military planes and bomb Jewish targets in New York.

"Only the government could have made a 'terrorist' out of Mr. Cromitie, whose buffoonery is positively Shakespearean in its scope," said judge Colleen McMahon.

"I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition," McMahon said, but still gave Cromitie 25 years in jail.

That case illustrates the challenge to defence lawyers to successfully argue entrapment in the United States.

To be continued...

In Canada, as Justice Bruce wrote, there are significant cases outlining the test for entrapment that she will reference in her final decision. In her recent disclosure decision, she wrote that the intent of the RCMP officers, whether they acted in bad faith, and whether they committed illegal acts, are all relevant factors in her determination of entrapment and abuse of process.

Bruce goes on to say that the RCMP's actions certainly made Nuttall and Korody's bomb plot and actus reus -- Latin for "criminal act" -- more possible.

"Clearly the evidence supports a conclusion that the actions of the police in providing money, tools, a location in which to work, and services to the accused made their commission of the terrorist activity easier or more probable from an objective perspective, and thus constitute the actus reus of the offence."

Bruce also cautions that if police were warned by their legal counsel not to take certain actions but did it anyway, the consequences are serious.

"A finding of illegal acts, standing alone, may not be sufficient to establish an abuse of process warranting a stay of proceedings. However, evidence that the police ignored legal advice or acted contrary to legal advice and, conversely, evidence that the police acted in good faith based on legal advice is relevant to the seriousness of their misconduct, which in turn is relevant to whether a stay of proceedings should be ordered. Illegal acts by the RCMP are also relevant to the entrapment claim."

And Justice Bruce cites the significant case of R. v. Campbell where she cites Supreme Court of Canada Justice Ian Binnie -- and underlines his words for emphasis in her own ruling:

"Police illegality of any description is a serious matter. Police illegality that is planned and approved within the RCMP hierarchy and implemented in defiance of legal advice would, if established, suggest a potential systemic problem concerning police accountability and control. The RCMP position, on the other hand, that the Department of Justice lent its support to an illegal venture may, depending on the circumstances, raise a different but still serious dimension to the abuse of process proceeding," Bruce quotes Binnie.

The judge continues: "[66] I have found that the defence has raised a prima facie case that the RCMP violated s. 83.19 of the (Criminal) Code by providing money, services, and accommodation that helped them to commit terrorist activities. Illegality by the police can support a stay of proceedings based upon entrapment or the wider concept of abuse of process.

"[67] While the question of whether a stay of proceedings is warranted in all of the circumstances is to be determined at the end of the voir dire after all of the evidence is heard, there is a sufficiently close link between the illegal acts committed by the RCMP and the prosecution of the accused to support an abuse of process claim."

"[72] Accordingly, I find that the legal opinions and/or legal advice received by the RCMP in connection with Project Souvenir, in whatever format, must be disclosed under the first stage of the innocence at stake exception to solicitor/client privilege, including advice or opinions as to the following:

"1. What evidence was required to meet the elements of the offences under consideration.

"2. Whether providing money, supplies, and /or transportation to the accused:

"(a) would or may constitute incitement and/or entrapment;
"(b) would or may be unlawful including whether it would constitute facilitating or participating in a criminal act; and/or
"(c) would or may require an authorization under s. 25.1 of the Criminal Code."

Justice Bruce will decide on whether to disclose some or all of the RCMP's legal advice to the defence on Tuesday Nov. 24 by 4 p.m.

But it is Bruce's ultimate decision on whether the RCMP entrapped Nuttall and Korody that will not only determine their fate but also set a precedent for future cases where police "facilitate" criminal activities to stop crime.

So while other police forces around the world battle ISIS, Canada's RCMP will await word from a judge on whether its own officers assisted incompetent, methadone-addled would-be terrorists in such a legally offensive way that it will spring them from jail.

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The Paris Terrorists Will Never Win - Not if we fight fear, keep travelling, and shelter refugees from terror's vengeful wake

Paris - le Jardin du Luxembourg - Bill Tieleman photo

Why the Paris terror attacks demonstrate the weakness, not strength, of ISIS

Bill Tieleman’s 24 Hours Vancouver / The Tyee column

Tuesday November 17, 2015

By Bill Tieleman

"A walk about Paris will provide lessons in history, beauty, and in the point of life." 

- Thomas Jefferson, third U.S. president, 1743-1826

The Paris terrorists will never win.

Their attack on unarmed civilians in one of the world's most visited cities illustrates their weakness, not their strength.

The Islamic State of Iraq and Syria (ISIS) has claimed responsibility for killing 129 people and wounding 352 in six coordinated attacks.

ISIS got what it wanted through this slaughter -- to instantly dominate the news, sparking enormous concern among people around the world.

I understand that because I have family living in Paris -- my cousin, his wife and daughter -- all thankfully safe, though they live near the site of several attacks, the Place de la Republique.

But indiscriminately murdering innocent people in restaurants, clubs and concert halls before killing themselves with suicide bombs demonstrates the terrorists' inability to win in Iraq, Syria and the Middle East or anywhere else.

They cannot succeed militarily, so they resort to cowardly attacks on "soft targets" -- civilians -- in foreign countries where the very liberty ISIS denies in the small areas it controls in the Middle East makes such massacres possible.

The Paris attacks are sadly echoed by the earlier deadly assaults on the magazine Charlie Hebdo and other sites in that city in January.

But terrorists have used the same approach for centuries, particularly in the recent past.

The infamous Sept. 11, 2001 New York airliner hijackings, the 2002 Bali hotel bombing, the 2004 Madrid train station bombing, and countless others -- all unconscionable massacres.

And yet, have they changed the course of history in the way al-Qaida, ISIS or other terrorists hoped? No.

'Should we fear it? No'

Last week before the Paris attacks, Canada's new Liberal Defence Minister Harjit Sajjan commented about ISIS, with the worst possible timing.

"ISIS is a threat, no doubt about that. Should we fear it? No," said Sajjan, a former army lieutenant-colonel who served in Afghanistan. "The Canadian population should have full confidence in all the security services to keep us safe."

Sajjan is quite correct -- ISIS is a threat, once again exhibiting the same ruthless brutality it used to parade foreign hostages in front of cameras and later behead them.

And Sajjan is also right that we should not fear it.

ISIS's goal with these attacks is simple -- gain global publicity in order to "terrorize" the public and presumably force governments to leave it alone.

While people are horrified, the terror hasn't worked to win its broader goals, nor will it.

ISIS and other terrorist have additional goals: to damage the global economy; to devastate tourism and travel around the world; and to stop aid to refugees fleeing from terror in Syria and Iraq.

And ISIS is fundamentally opposed to the basic tenets of democracy.

In addition to committing barbaric acts of murder, it has blown up historic sites of antiquity that have value to the entire world, such as the destruction of the ancient Temple of Baalshamin in Palmyra, Syria, in August.

Similarly, in the alleged ISIS claim of responsibility for the Paris massacres, the group says the city was targeted because it is a "capital of prostitution and obscenity."

As a regular visitor to Paris, such views are both absurd and offensive. Paris has long been a beacon of civilization, tolerance and culture.

As the late actress Audrey Hepburn said: "Paris is always a good idea."

Keep on travelling

That's why those who value democracy, liberty and freedom around the world must not let ISIS succeed.

Canada's humanitarian effort to help 25,000 Syrian refugees find a better life here must not become another victim of terrorism.

Yes, we must take all appropriate security measures to ensure only legitimate refugees are admitted, as we should with anyone coming to Canada.

But we must not let terrorists frighten us into failing to do the right thing.

Early reports that one of the terrorists had a Syrian refugee passport should not be taken as gospel truth -- the facts will come out in the full investigation, and the trade in stolen and fake passports is enormous.

What's more, remember that those Syrian refugees are the victims of ISIS, not its supporters.

Aaron Zelin, an analyst of jihad, made this central point in response to the fear of some refugees being future terrorists.

"For those who want to blame the attacks on Paris on refugees, you might want to get your facts straight. The reality is, (ISIS) loathes that individuals are fleeing Syria for Europe. It undermines (ISIS's) message that its self-styled caliphate is a refuge," Zelin wrote.

And we must personally not allow ISIS to stop us from seeing the world and its wealth of different cultures.

Add to what Jefferson said above these words from the great American travel guide Rick 

Steves: "We owe it to the victims of this act not to let the terrorist win by being terrorized. 

That's exactly the response they are hoping for... keep on travelling."

Exactly. Je suis Paris. 

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Christy Clark Runs Ghastly Ghost Government - Operating in the Shadows, Deleting All Traces of Public Records

Premier Christy Clark - leader of scary ghost government

Casper the Friendly Ghost - never deletes his email

Unlike Casper, the BC Liberal version, which makes email records invisible, is extremely scary. 

Bill Tieleman's 24 Hours Vancouver / The Tyee column

Tuesday November 10, 2015

By Bill Tieleman 

"A reformed and modernized system will make this ghost government more accountable to the public it serves."  

- Kentucky auditor Adam Edelen, 2012 

Premier Christy Clark is running her own ghost government in British Columbia -- and unlike Casper the Friendly Ghost, this BC Liberal version is extremely scary.

Clark's ghost government operates in the shadows, illegally triple deleting emails so no record remains anywhere, communicating verbally and on Post-It notes later destroyed -- all to keep the information that forms the vital public record invisible to media, the public and opposition parties.

Kentucky's ghost government was discovered by state auditor of local government Adam Edelen, who found in 2012 that $2.7 billion was being spent by over 1,200 special districts, with absolutely no legal, financial or organizational reporting to taxpayers. 

Here at home it was Elizabeth Denham, B.C.'s independent information and privacy commissioner, who investigated and blew the whistle on Clark's ghostly government and its ghastly practices of flagrantly breaking freedom of information (FOI) laws. 

"We uncovered negligent searches for records, a failure to keep adequate email records, a failure to document searches, and the willful destruction of records responsive to an access request," Denham said in her October report titled "Access Denied." 

The RCMP was even alerted after Denham reported that George Gretes, then-ministerial assistant to Transportation Minister Todd Stone, had during her investigation "admitted to giving false testimony under oath, and aspects of his testimony was contradicted by other evidence." 

Denham -- and through her the public -- only uncovered this outrageous behaviour because Tim Duncan, another transportation ministry staffer, contacted her - through the BC NDP opposition - with allegations that Gretes wilfully deleted government records related to the Highway of Tears.

Last week, Technology Minister Amrik Virk -- no stranger to his own controversies on following the rules -- hired former FOI commissioner David Loukidelis to advise the government on how to address Denham's 11 recommendations and five findings, giving him until Dec. 15 to report.

But make no mistake -- the email scandal is no rogue operation. 

Clark's own deputy chief of staff, Michele Cadario, was found by Denham to have used a "broad interpretation of transitory records" in order to achieve the "permanent deletion of almost all emails she sent in the course of her work." 

Clark herself said she was unaware of the triple deleting to frustrate FOI requests -- and refused to dismiss or apparently even discipline Cadario or others who were named in Denham's report.

Yet Denham's report states that Cadario "has not personally retained a single email she has ever sent from her government email address."

Serious to everyone but Clark

Having worked in a past premier's office as communications director, I am astonished that a top official like Cadario not only broke the rules but could then claim she operates with no email trail or record of her work. It defies imagination.

As Paul Willcocks wrote in The Tyee, some of Cadario's emails were nonetheless found -- but only those in the records of Clark's chief of staff Dan Doyle.

As Denham says: "It is difficult to overstate the seriousness of the problems that my office discovered in the course of this investigation."

But those problems aren't that serious to Clark. She had the nerve to say of her staff that: "I do think that everyone was trying to operate within the Act." 

And the content of emails that are said to have been deleted is deadly serious -- a request for records related to northern B.C.'s Highway of Tears, where 18 women and girls have been murdered or disappeared since 1969.

I know a family member of one of the missing women, and have heard of the anguish of other family and friends of those murdered and disappeared.

Every effort should be used to find those responsible and bring them to justice -- not to apparently cover the tracks of the BC Liberal government's lack of sufficient action on this critical issue.

Former FOI commish brought in

Denham's report makes for truly disturbing reading. And so enter David Loukidelis to straighten out the government with his own report on Denham's recommendations.

That would be the same Loukidelis who went from being FOI commissioner to deputy attorney general in 2010 -- from the guy responsible for ensuring the BC Liberal government followed the rules, to the public official ultimately responsible for FOI requests made in the BC Legislature Raid corruption case by the defence for former ministerial assistants Dave Basi and Bob Virk.

And the same Loukidelis who, along with then-deputy minister Graham Whitmarsh, engineereda waiver of the repayment to government of Basi and Virk's $6-million legal fees, despite the surprise guilty plea that ended their trial after just two of an expected 42 witnesses testified. B.C.'s auditor general found "no political interference" in the indemnity waiver.

Loukidelis knows the FOI law and its requirements on compliance very well -- one hopes he will demand this government that has repeatedly violated the rules finally change its ways. 

'Ignorance of the law is no excuse!'

Government records do not belong to the political party in power or individual staff. They belong to the public who pays the bills, and accountability is essential for confidence in our democracy.

Deleting emails, destroying documents and blocking access to information is not only breaking the law -- it is potentially obstructing evidence of other illegal activities. 

In the federal government, such actions by an employee could lead to up to a two-year jail sentence and a $10,000 fine.

The federal Privacy Commissioner's guidebook on complying with Access to Information Act requests is extremely clear, and written in boldface, large type:

"You could go to jail for the destruction, alteration or falsification of any record with the intent to deny a right of access to that record!!! Ignorance of the law is no excuse!" it states with great emphasis. 

Unfortunately, here in B.C. it appears that similar actions do not result in any punishment -- they are undertaken in cabinet minister and the premier's offices by senior officials and excused by the premier herself.

It's time to exorcise the ghost government and return public records to those they truly belong to -- the people.

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