On July 1, 2013, John Nuttall and Amanda Korody placed pressure cooker bombs outside the Parliament Buildings in Victoria, British Columbia, containing a minute amount of an explosive substance provided by the RCMP Integrated National Security Team (INSET) during an undercover operation. But they were phony bombs and did not explode. Here’s the story.

1. Introduction

Nuttall and Korody were converts to Islam. Nuttall espoused violent jihadist views and looked around for like-minded people. But he was rebuffed by those he met at mosques and prayer rooms. After a four-month investigation, they were charged with four counts of terrorism offences that I will describe as: (1) conspiracy to commit murder for the benefit of, at the direction of, or in association with a terrorist group; (2) conspiracy to place an explosive in a public place for the benefit of, at the direction of, or in association with a terrorist group; (3) facilitation of a terrorist activity; and, (4) possession of an explosive substance with intent to endanger life or damage property.

2. Trial

Justice Catherine Bruce, the trial judge, withdrew the facilitation count from the jury reasoning that Nuttall and Korody, as the alleged principals to the other offences, could not facilitate their own terrorist activity. The jury therefore returned a directed acquittal on count 3. Justice Bruce also instructed the jury that if the defendants were convicted on the first conspiracy, the jury was not to consider the second conspiracy because they could only be convicted of one conspiracy arising from the same act. Because the jury convicted on count 1, a verdict was not returned on count 2. The trial judge entered a conditional stay of proceedings on the second conspiracy count. In a ruling reported as R v Nuttall, 2016 BCSC 1404 Justice Bruce stayed counts 1 and 4 on the basis of the doctrine of entrapment. The Crown appealed the acquittal and the stays of proceedings. (See also: R v Nuttall, 2015 BCSC 943; and, R v Nuttall, 2015 BCSC 962)

3. Appeal

On December 19, 2018, the British Columbia Court of Appeal released the unanimous opinion of a three member panel reported as R v Nuttall, 2018 BCCA 479. Justice Elizabeth Bennett, writing for herself and Justices David Harris and Pamela Kirkpatrick, dismissed the Crown’s appeal from the stays of proceedings on counts 1 and 4. Justice Bennett went on to hold that, although the trial judge erred in the instruction to the jury on the conspiracy counts that had the effect of removing count 2 from the jury’s consideration, the defence of entrapment nevertheless applied and a stay of proceedings would be the result. Finally, the appeal was allowed from the acquittal on count 3. “In my opinion,” Justice Bennett wrote at para 7, “the trial judge erred in directing an acquittal on the basis that someone charged with ‘facilitat[ing] a terrorist activity’ must be external to the terrorist organization.” However, Justice Bennett substituted a stay of proceedings, at para 503, on the basis that a new trial would be an abuse of process.

The case raised other issues of overlapping convictions and duplicity of counts in addition to entrapment. Both the trial ruling on entrapment and the appellate opinion are long and complex containing detailed reviews of the evidence. The PDF version of the trial ruling, available to the public on CanLII, consists of 288 pages and 837 paragraphs. The appellate opinion is 142 pages and 504 paragraphs. I will therefore narrow my remaining comments to some aspects of Justice Bennett’s opinion that bear upon the residual category of the doctrine of entrapment.

4. Entrapment

The focus of the doctrine of entrapment is on the objective conduct of the police and not the predisposition and subjective state of mind of the defendants. Justice Bennett correctly emphasized, at para 294, that police conduct caught by the doctrine will not negate the actus reus or the mens rea of an offence. It is not a defence to what a defendant did nor his or her intention. The core issue is the “improper invocation by the state of the judicial process and its powers”. As Justice Antonio Lamer said in R v Mack, [1988] 2 SCR 903, at para 23, entrapment is an aspect of the abuse of process doctrine that permits a court to enter a stay of proceedings in circumstances that offend the “sense of justice”. There are three branches of the doctrine recognized in Canadian law:

(1) where the state provides a person with a opportunity to commit an offence either without acting on a reasonable suspicion that the person was already engaged in criminal activity or pursuant to a bona fide inquiry;

(2) where the police go beyond providing an opportunity and induce the commission of the offence such that an average person with the defendant’s strengths and weaknesses would have committed the crime; and,

(3) a residual category where other factors support a finding of entrapment.

The trial judge concluded that entrapment was proved on all three branches. On the first branch, Nuttall’s “general ineptitude” and “scatterbrained character” made him incapable of executing a terrorist plot. The police could not have suspected that Korody was already involved in criminal activity based solely on what Nuttall said about her intentions. An offer by the police to provide the explosive C-4 for the pressure cooker devices thus amounted to random virtue testing. On the second branch, the trial judge concluded that this was not a case where the police disrupted an ongoing plan. The offences were instead “brought about by the police” in a “clear case of police-manufactured crime”. On the third branch, the trial judge held that a stay was warranted under the residual category to protect the integrity of the judicial process. (See: R v Babos, [2014] 1 SCR 309 per Moldaver J, at para 31)

Let’s take a brief look at the evidence.

The police ran 28 undercover scenarios with the defendants from February 23, 2013, to July 1, 2013, similar to a Mr Big operation. The following sample from the “pressure cooker bomb plot” will give you the flavour of the evidence underpinning the trial judge’s conclusion, at para 718, that the police “instigated and skilfully engineered the very terrorist act committed by the defendants”. Justice Bennett, at para 307-28, did not interfere with the trial judge’s findings.

Nuttall was the first to propose the pressure cooker plan. He wanted to emulate the Tsarnaev brothers in the Boston marathon bombing. But he also talked about hijacking a nuclear submarine and said nothing more about pressure cookers for many weeks. The police realized they could not watch over Nuttall and Korody indefinitely and redirected their jihadist plans to something feasible and realistic – namely, the pressure cooker devices. Nuttall and Korody discussed their plans to storm a naval base or launch homemade rockets with the undercover officers. Nuttall later became despondent in a conversation with Korody when he told her that their rocket plan had to be abandoned in favour of an undercover officer’s plan that they build pressure cooker devices.

Although Justice Bennett held, at para 434, that the trial judge erred in the application of the principles of entrapment on the first two branches of the test, her conclusion on the third branch was “unassailable”. Here are five important findings made by the trial judge:

• the police seized on the pressure cooker plan and it became their plan;
• the police counselled, directed, urged, instructed and moulded the defendants into people who, with significant and continuous supervision and direction, ultimately played a small role in the offences;
• the police ensured that the defendants received their daily methadone prescription;
• the police provided the explosive substance, constructed the devices and chose where they would be planted; and,
• the police led the defendants to the end through manipulation, cajoling, instructing, installation of fear, offers of friendship, offers of reward, and offers of religious guidance throughout the operation.

Based on the trial judge’s findings, Justice Bennett went on to conclude, at paras 440-2, that the police “pushed and pushed and pushed the two defendants to come up with a workable plan” and “did everything necessary to facilitate the plan”. Nuttall and Korody “had neither the means nor the ability to carry out any of the plans without substantial aid from the police”. No fault could be found with the trial judge’s conclusion that the police “manufactured the crime” and were “the primary actors in its commission”. The overall conduct of the investigation was a “travesty of justice”. Justice Bennett did not leave the appeal without commenting on the “needless complexity” of Part II.1 of the Criminal Code that governs terrorism offences. It would be beneficial, she suggested, if Parliament “revamped” the legislation to make it “comprehensible” for jurors.

5. Conclusion

There are always two competing considerations at play in entrapment cases: (a) the concepts of fairness and justice; and, (b) the protection of the public from serious crime. The threat to public security generated by acts of terrorism often requires the police to engage in innovative, and sometimes illegal, investigative techniques in order to secure evidence necessary for prosecution. But, also, the concepts of fairness and justice command that police conduct survive scrutiny when balanced against them.