Friday, July 29, 2016
Catherine Bruce Achieves Sainthood
Today Catherine Bruce delivered a landmark decision that was one small step for man, one giant leap for mankind. I was there when Catherine Bruce read out her decision on the John Nuttall Entrapment case. I have a lot to say about this case but at this time I will simply say read the judge's decision. That says it all. She reviewed all the evidence. Her decision was right on the money. She nailed it. She restored my faith in the justice system and my pride in what it means to be Canadian. As the saying goes, No Justice, No Peace. Know Justice, Know Peace. The struggle is not over yet. However, this decision sparks the hope that we do indeed have a future to fight for. It's been a long day. My e-mail inbox is full.
Tonight I'm going out for dinner with my daughter and tomorrow I'm taking my motorcycle and tent for a road trip to get away from it all and enjoy nature restoring my love for this magnificent country. I will not have access to a computer or Internet so please bear with me as it will take me some time to catch up on responding to e-mail. In the meantime I can only reiterate, read the judge's decision. That says it all. Today is a good day. From every mountain and from every molehill, let freedom ring. God Bless Catherine Bruce and God Bless Civil Liberty. Peace.
It would be well worth getting a copy of the court transcript on the judge's summery of her decision as it was articulated with divince eloquence. Until that time, this is a copy of the full written decision posted on the court website and a few relevant excerpts from it.
As I previously said, without the RCMP there was no means or motive to commit this heinous crime. John and Amanda were never radialized. There is and never was any threat to public safety. The judge was very clear about that and counsel for the defence cited that fact after they were rearrested and brought before a different judge after an ex parte application. Going exparte and not notifying the other lawyers was tacky and tasteless at best. The judge was clear in that John and Amanda were genuinely afraid they would be killed by Mr. Big if they didn't do exactly as they were told. They judge said that because it was true.
Amanda is a kind polite sweetheart. She and John have a wonderful relationship. There is no threat to public safety and there never was. John's mother hit the nail on the head when she said they were conned to help promote Stephen Harper's Bill C-51 which does away with civl liberty for everyone. This CSIS scheme was a crazy plot to extort two Surrey drug addicts into doing something they never would have conceived of to justify Harper's agenda of removing civil liberty from all Canadians. That is what this case was really about.
Catherine Bruce's decision on the Nuttall entrapment case
 Mack remains the leading Canadian authority on entrapment.
 The foundation for the concept of entrapment is the need to preserve the integrity of our justice system. Entrapment is, accordingly, a form of abuse of process (rather than a substantive defence to an offence). Thus, the court has jurisdiction to enter a stay of proceedings in circumstances where permitting a conviction to stand would violate the fundamental principles of justice that “underlie the community’s sense of fair play and decency”. Justice Lamer explained this rationale for entrapment (at paras. 77 and 79):
 Entering a stay of proceedings due to entrapment is not done to punish the police for their misconduct; however, the court is concerned with maintaining confidence in the integrity of the justice system by refusing to condone unacceptable conduct by state authorities. A claim of entrapment is a very serious allegation against the police who must be given substantial room to develop techniques that are necessary to combat crime in society. Nevertheless, when the police and their agents engage in conduct that offends basic values of the community, the doctrine of entrapment must apply.
 When the court evaluates the police conduct against the standards expected by reasonable, well-informed members of our community, it must balance the competing social interest of repressing criminal activity. In seeking to strike the proper balance, the court must look to the key elements of fairness and justice accepted as part of our legal system (at para. 80). In the case at hand, the serious nature of terrorism offences, as well as the impediments surrounding the investigation of these types of clandestine offences, are undoubtedly factors to consider in this balancing process.
 In Canada, the approach to entrapment is different from that adopted by American courts. In Mack, the Supreme Court of Canada articulated a more objective evaluation of the actions of the police or state agents and rejected an entirely subjective analysis of the impact of police conduct on a particular accused (at paras. 104-106). It was the desire to avoid a predisposition analysis of the accused’s actions and motivations that led to the adoption of a model that focuses instead on the conduct of the police. Rejecting the American predisposition analysis of entrapment, Lamer J. said (at paras. 109-110):
 The police are not entitled to embark on an investigation into criminal activity that includes providing a person with “an opportunity” to commit an offence unless they are acting on a reasonable suspicion that this person is already engaged in the type of criminal misconduct under investigation. As explained in Mack, the absence of a reasonable suspicion may indicate that the police are engaged in random virtue-testing or, worse, acting in bad faith based on improper motives (at para. 108).
 In addition to entrapment, the defence argues that the police conduct in this case warrants a stay of proceedings because it amounts to an abuse of the Court’s process. The abuse of process claim includes allegations of illegal conduct by the police, violations of the defendants’ religious rights and freedoms, and overall abusive and coercive conduct during the undercover operation. The defence also argues that each aspect of the abuse of process claim forms part of its argument that the police entrapped the defendants. As a consequence, the authorities addressing these issues are relevant to the entrapment inquiry as well as the claim of abuse of process.
1. Reasonable Suspicion
 I find the police had very little evidence at the commencement of the undercover operation to support any reasonable suspicion that Mr. Nuttall was already engaged in criminal activity of any type. There was a tip from CSIS in the form of an advisory letter that was not corroborated by the RCMP’s investigation. The RCMP had no knowledge of the reliability of the source for the CSIS tip and thus could not assume it was accurate. General statements by CSIS representatives that Mr. Nuttall might be recruiting people for violent jihad could not raise a reasonable suspicion because the RCMP had no knowledge of the source or the reliability of the source of this information.
 The physical surveillance conducted by the RCMP between February 2, 2013 and February 23, 2013, revealed no evidence that the defendants were involved in criminal activity. Indeed, police surveillance indicated that the defendants did very little outside their home and generally remained within a four-block radius of their basement suite. Background checks revealed that Mr. Nuttall had a criminal record for violent offences; (he mugged someone by hitting them over the head with a rock) however, the last conviction was in 2003, some ten years prior to the commencement of Project Souvenir. Ms. Korody had no criminal record.
624] During May and early June, there was a great deal of dissent among the members of the investigative team and the undercover shop regarding the course of the investigation. Senior officers in the undercover shop believed that exit strategies should be examined to end the operation safely and that a psychological assessment of Mr. Nuttall should be pursued. There was a fear articulated that the undercover operation had become overly influential on Mr. Nuttall and that the police might be making him into a terrorist when he lacked the capacity to be one on his own.
 Despite these concerns, Sgt. Kalkat forged on with the operation, taking the defendants to Victoria for a recce in the hopes that they would decide upon or articulate their plan. During these scenarios Officer A’s terrorist group showed the defendants what they could provide: transportation, accommodation, meals, security, advice, friendship, and expertise. Contingent promises of assistance were again made to the defendants, but the defendants came up with nothing more than further talk of their grandiose schemes.
 Having failed to motivate the defendants to either decide on a specific plan or articulate how they would accomplish a plan during the Victoria recce, the investigative team decided to focus them on the one idea that Mr. Nuttall might be able to carry off and that the police could control: the pressure cooker devices. Mr. Nuttall had earlier referred to the Boston bombing and the use of pressure cookers as explosive devices during a shopping trip for a suit on April 26, 2013, but this idea took on significance for the police after June 6, 2013. During this scenario Mr. Nuttall provided Officer A with a hand drawn diagram of a rocket and an explosive device constructed with a pressure cooker container, both of which he had found on the Internet in Al Qaeda’s Inspire Magazine.
 There were two problems that stood in the way of the pressure cooker plan. The first problem was that Mr. Nuttall was only really keen on large-scale schemes, including the Qassam rocket plan, hijacking a nuclear submarine and storming the Esquimalt naval base. While Mr. Nuttall had made earlier comments that the Boston “brothers” had a good plan because it was simple, on June 6 he indicated that he regarded the pressure cookers as only a tester and not the real thing. While Mr. Nuttall’s rambling musings are very difficult to piece together to construct something meaningful, I infer from his statement that he wanted to see if he could actually make something that could explode.
 The second problem was that the defendants had no access to, or the ability to make, an explosive substance for the pressure cookers. Although Mr. Nuttall had made claims about his experimentation with explosive substances, his later statements to Officer A revealed that these had been merely bravado. Indeed, the fact that he needed to use the pressure cookers for a tester belied his earlier claims that he had already experimented successfully with explosives. I am satisfied that the evidence supports a conclusion that Mr. Nuttall knew very little about explosive substances and that the police would have known this based on Officer A’s notes and his recorded conversations with Mr. Nuttall. Ultimately, the closest Mr. Nuttall came to a plan for making an explosive substance was his expression of a desire to transform cow manure into an explosive. The police witnesses acknowledged that this was a lengthy and complicated process beyond Mr. Nuttall’s capacity, and there is no evidence that he took any positive steps towards accomplishing this objective.
 Having concluded that an opportunity to commit a terrorist offence was communicated to the defendants, the question remains whether the police had a reasonable suspicion that the defendants were already engaged in that type of criminal activity at that time.
 One of the key frustrations faced by the police during the months preceding the Kelowna scenario was the fact that the defendants were not articulating a plan and were not taking any steps towards carrying out a plan. The constant rhetoric of jihadist violence by Mr. Nuttall was disturbing and, at the same time, tiresome because nothing ever came of these expressions of belief. Underlying the dispute within the RCMP about whether the operation should continue was a divergence in views as to whether the defendants were capable of carrying out any of their grandiose schemes.
 In my view, there was ample evidence by June 2013 that confirmed Mr. 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 investigative team and the undercover shop repeatedly discussed these aspects of Mr. Nuttall’s personality, or the behaviour that demonstrated these characteristics, during their briefings.
 The police also had the benefit of the pole camera and foot surveillance of the defendants. These investigative tools revealed that, apart from outings with Officer A, the defendants spent all of their time at home or within a four-block radius of their suite. The defendants were never associated with radical groups or individuals apart from Mr. Nuttall’s references to speeches by Bin Laden and Anwar Al-Awlaki that he found on the Internet. The police had no evidence that the defendants were communicating with terrorists on social media. The DNR produced no evidence in support of terrorist connections or associations or of communications with pharmacies or nurseries in search of potassium nitrate.
 Sgt. Kalkat repeatedly assured senior officers in E-INSET that there was no immediate public threat posed by the defendants. Special “O” surveillance was assigned to more pressing files and the police confidently concluded that periodic visits from Officer A were sufficient to control any real possibility that Mr. Nuttall might act out against any member of the public. Nothing that occurred during the operation before the Kelowna scenario would have led the police to reasonably suspect that the defendants were up to something criminal in nature when they were not with Officer A.
 It follows, in my view, that at the time the offer of C4 was made for the pressure cooker devices, there was little objective evidence to support a reasonable suspicion that Mr. Nuttall was already engaged in criminal activity related to terrorism. As Lamer J. said in Mack, there must be a temporal connection to establish reasonable suspicion; events that are too remote cannot justify the objective test. Similarly, suspicions that have been allayed by more recent events cannot be ignored. It is the sum total of the objective facts that must be scrutinized, including evidence that supports a conclusion that the defendants were not otherwise engaged in the planning or execution of terrorist acts.
 Ms. Korody had no criminal record to support a reasonable suspicion. Nor had she said or done things before or during the undercover operation up to that date to indicate that she was independently involved in terrorist activities. Apart from going along with Mr. Nuttall’s schemes, and demonstrating a willingness to support her husband’s plans as a foot soldier, the police had no greater suspicions about her involvement in terrorist offences than they possessed about Mr. Nuttall.
 Thus I am satisfied, on a balance of probabilities, that the RCMP offered both Mr. Nuttall and Ms. Korody an opportunity to commit a terrorist offence without a reasonable suspicion that the defendants were already engaged in criminal activity. On this basis alone I find that the RCMP entrapped Ms. Korody and Mr. Nuttall into committing the offences of which they were found guilty and, accordingly, I enter a stay of proceedings with regard to Counts 1 and 4 of the Indictment and I enter an unconditional stay in regard to Count 2.
 Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more organized, focused and realistic in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own and to abandon the grandiose ideas that the police knew the defendants could never accomplish; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A, as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization; the repeated angry encounters with undercover officers who played roles as terrorists; and the decision to play the role of the defendants’ spiritual advisor and exploit the influence Officer A had secured over them to direct their actions towards the use of violence to accomplish religious and political objectives.
 In addition, the police involvement in the offence was overwhelming compared to the insignificant part played by the defendants, and the constant direction and prodding they needed to accomplish their assigned tasks showed that it was the police who were the leaders of this plot. Not only did the police take over the leadership, but they committed illegal acts to enable the defendants to play their small part in the plan. Throughout the undercover operation Mr. Nuttall repeatedly demonstrated that he lacked the focus required to make the arrangements that were necessary before the pressure cooker plan could be carried out even if they had secured the financial resources required for the mission. The investigative team was exasperated with Mr. Nuttall’s failure to follow through with any of the jihadist objectives he talked about. Instead of viewing the project as a success because they had discovered the targets were incapable of taking any concrete steps towards accomplishing the objectives they verbalized, the police decided they had to aggressively engineer a plan for Mr. Nuttall and Ms. Korody and make them think it was their own.
 This is truly a case where the RCMP manufactured the crime; this is not a situation where the police simply “instigated, originated or brought about” the offence. The police took two people who held terrorist beliefs but no apparent capacity or means to plan, act on or carry through with their religiously motivated objectives and they counselled, directed, urged, instructed and moulded them into people who could, with significant and continuous supervision and direction by the police, play a small role in a terrorist offence. The police did not first identify the idea of exploding pressure cookers; however, Mr. Nuttall regarded this device as a tester and the closest he got to an explosive substance for this test was talk about using cow manure to make an explosive substance. Mr. Nuttall never brought up pressure cookers after the June 6 scenario. The police seized on this idea and it became their plan.
 The RCMP had to provide the explosive substance; they had to take the defendants shopping for the bomb parts and give them continuous instructions and direction until they finally bought most of what they needed; they had to construct the devices and left only the gluing of nails to the pots and the construction of timers, which were never part of the RCMP’s plan, to the defendants. The police had to arrange for a location for the defendants to work on the devices and provide constant supervision and direction until their small part was completed. Each day the police had to “babysit” the defendants to ensure they had their methadone. The police chose the date for the explosion and they made all of the arrangements for the necessary accommodation and travel to Victoria. The police essentially chose where the devices would be planted.
 I therefore enter a stay of proceedings on Counts 1 and 4 of the Indictment and an unconditional stay on Count 2 based on a finding of entrapment.
 What renders the police conduct more serious in this case is the multi-faceted manipulation of the defendants and the police exploitation of their vulnerabilities. The police took advantage of the defendants in many ways; they were impoverished, socially isolated and searching for spiritual meaning in their lives. The police gave them a true friend who bought them gifts, spent time with them and offered them religious guidance; a true friend who paid for hotels and travel and meals and gave them money when they were hungry and desperate. The defendants idolized Officer A. Within the context of this relationship of dependence and subservience, the police led the defendants to believe that they were now associated with a large and sophisticated terrorist organization. The police knew that the defendants had completely accepted that Officer A and the other undercover officers were violent, experienced terrorists and, further, that the defendants believed they would be killed if they disappointed these terrorists. However, the police did little to allay the defendants’ fears or change their perception of the terrorist organization. Indeed, Sgt. Kalkat instructed the undercover operators to act more like terrorists. This kind of manipulation and exploitation of vulnerabilities threatens the integrity of the justice system.
 There are no remedies less drastic than a stay of proceedings that will address the abuse of process. The spectre of the defendants serving a life sentence for a crime that the police manufactured by exploiting their vulnerabilities, by instilling fear that they would be killed if they backed out, and by quashing all doubts they had in the religious justifications for the crime, is offensive to our concept of fundamental justice. Simply put, the world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves.
 Accordingly, I find this is one of the rare cases where a stay of proceedings is warranted due to an abuse of process. I thus enter a stay of proceedings with regard to Counts 1 and 4 of the Indictment and I enter an unconditional stay in regard to Count 2.
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