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DEFENCES - Entrapment

Monday, February 11, 2019 @ 9:36 AM  


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Appeal by the Crown from the directed acquittals and stays of proceedings involving the accused, Nuttall and Korody. The accused were recent converts to the Muslim faith. Nuttall openly espoused extremist jihadist views, advocated in favour of violent terrorist activities, and openly sought like-minded people. As a result, the accused were targeted by an extensive undercover police operation that culminated in the placement of two bombs outside of the provincial legislature by the accused on Canada Day in 2013. The bombs were designed to explode 15 minutes apart to ensure maximum harm to first responders. No explosion occurred, as the bombs had been provided by police and were not real. The accused were arrested and charged with four counts of terrorism-related offences. A directed acquittal was entered in respect to a count related to facilitating terrorist activity. A second count of conspiracy was removed in the event of a guilty verdict on the first conspiracy count. The jury returned a guilty verdict on the remaining two counts, conspiracy to commit murder for a terrorist group, and making or possessing an explosive with intent to endanger life for a terrorist group. The trial judge stayed the latter two charges on the basis of entrapment and abuse of process. The Crown appealed the acquittal and stays of proceedings in relation to all counts.

HELD: Appeal allowed in part. During the entrapment analysis, the trial judge made palpable and overriding errors of fact, and an error in the application of the legal principles of entrapment through a subjective analysis of the accused's beliefs instead of an objective analysis of the police conduct. Due to these errors, the finding of entrapment based on a lack of reasonable suspicion by police that the accused were already involved in criminal activity, and the finding that a reasonable or average person would have committed the crimes could not stand. However, the finding of entrapment based upon conduct of police amounting to an abuse of process was unassailable. Police manufactured the crime that was committed and were the primary actors in its commission. The misconduct of the police in this case far outweighed their violation of the concepts of fairness and justice. As the trial judge found, the overall conduct of this investigation was a travesty of justice. The stays of proceeding based on entrapment were accordingly affirmed. With respect to the second conspiracy count, the trial judge erred in directing an acquittal on the basis that a facilitation charge required a defendant to be external to the terrorist organization, as it was possible for facilitation to occur between the two accused acting in concert. It was also erroneous to remove one conspiracy count from the jury. Nonetheless, the defence of entrapment would apply to both counts, as would the rule against multiple convictions. Therefore, a stay was substituted for the acquittal on the second conspiracy count.

R. v. Nuttall, [2018] B.C.J. No. 6929, British Columbia Court of Appeal, P.A. Kirkpatrick, E.A. Bennett and D.C. Harris JJ.A., December 19, 2018. Digest No. TLD-February112019002