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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