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Criminal Law - Defences - Entrapment

Thursday, September 01, 2016 @ 8:00 PM  

Application by the accused Nuttall and Korody for a stay of proceedings due to entrapment and abuse of process resulting from the conduct of the police in an undercover operation. Both accused were convicted of terrorist offences arising from the planting of explosive devices made from pressure cookers. The RCMP’s interest in Nuttall arose from a tip given to them by CSIS in 2013 that indicated he was attempting to purchase potassium nitrate at local pharmacies. The RCMP conducted an investigation through surveillance and an undercover operation into possible terrorist activities by Nuttall and his common law spouse, Korody. Police had very little evidence at the commencement of the undercover operation to support any reasonable suspicion that Nuttall was already engaged in criminal activity of any type. Tactics were used by the undercover officers to foster a belief that Officer A was a high-ranking member of a well-financed and well-resourced sophisticated terrorist organization. Nuttall indicated he had a plan and needed items to carry it out. A large part of the undercover investigation involved holding out the possibility of strategic assistance as a means of perpetuating contact between Officer A and the accused. Having failed to motivate the accused to either decide on a specific plan or articulate how they would accomplish a plan, the investigative team decided to focus them on making explosives out of pressure cooker devices. The investigative team then made a firm offer to provide the accused with C4 explosive specifically for the pressure cooker devices and actively encouraged this idea. Many of Nuttall’s statements to Officer A about his abilities and his past behaviour were false or exaggerated. The accused were easily manipulated by Officer A, who on many occasions orchestrated the desired outcomes as a result of the control and influence he exercised over them.

HELD: Application allowed. The RCMP entrapped the accused into committing the offences of which they were convicted. The RCMP presented them with an opportunity to commit a terrorism offence when Officer A committed unconditionally to provide the C4 for the pressure cooker devices. The police had no reasonable suspicion that the accused were already engaged in that type of criminal activity at the commencement of their operation. There was ample evidence that confirmed Nuttall’s general ineptitude, his scatterbrained character, his inability to think logically, his child-like demeanour, and his inability to remain focused on a task, which would be essential to the articulation and execution of a terrorist plot. The accused had proven themselves to be marginalized, isolated people who espoused extremist jihadist views but were neither motivated to act on their beliefs nor capable of taking steps to accomplish acts of violence in support of their beliefs. The police had no reasonable suspicion that Korody shared her spouse’s jihadist views. The police used fear that they had generated by their words and actions to induce the accused to follow through with the pressure cooker plan in a manner that would likely have induced an average person with both strengths and weaknesses. The police conduct also involved blatant manipulation of the defendants to exploit their dependence upon Officer A and his friendship and their particular vulnerabilities. The police were clearly overzealous and acted on the assumption that there were no limits to what was acceptable when investigating terrorism. To permit the convictions to stand in the face of this kind of police misconduct would be offensive and would cause irreparable damage to the integrity of the justice system. There were no remedies less drastic than a stay of proceedings that would address such abuse of process.