A B.C. Supreme Court judge has ordered CSIS to produce records provided to the spy agency in relation to a couple who plotted to bomb the B.C. legislature.
According to a transcript from a previously secret hearing, lawyers for John Nuttall and Amanda Korody sought the order in relation to all records provided the Canadian Security Intelligence Service "by a person who will be referred to as [X]."
Last summer, a jury found Nuttall and Korody guilty of conspiring to commit murder, but no conviction will be entered until Bruce determines whether the pair was entrapped by police.
"It is common ground that if [X] provided information to CSIS, [X] must be regarded as a human source," Justice Catherine Bruce said in an oral ruling on an application requesting the documents.
In-camera transcript released
Bruce heard the application for the CSIS documents in-camera, but she released a redacted record of the proceedings along with her oral ruling after arguments from media in favour of Canada's open court principles.
"The evidence forming part of the trial record gives rise to an inference that there may well have been a connection between [X] and CSIS. It was CSIS surveillance that led to the RCMP investigation," Bruce said in an oral ruling on the defence application.
"Their application is clearly not speculative, fanciful, unmeritorious or obstructive."
According to a transcript from the hearing, Nuttall's lawyer, Marilyn Sandford, swore an affidavit in the application "based on things" which her client told her about.
She said "the important starting point is that" [X] contacted Nuttall "out of the blue" and claimed to have met him previously: "Mr. Nuttall advises that he has no recollection of any such prior meeting."
Following several redacted pages, Sandford said: "Mr. Nuttall advises that [X] strongly encouraged him on many occasions to engage in violent terrorist acts and played a significant role in Mr. Nuttall's radicalization."
Sandford said one of Bruce's earlier rulings makes reference to Nuttall himself initiating contact with CSIS "because he had concerns about some people he had met at the mosque."
But she said they have had no further disclosure on that issue.
"So, he is the one who initiates contact with CSIS, and then this mysterious person shows up out of the blue," Sandford said.
'Allegations that ruin careers'
Both the Crown and CSIS argued against the order on a variety of grounds, including relevance, the impact the order would have on the privacy interests of the agency and [X] in the event documents exist, and insufficient evidence.
Crown counsel Peter Eccles responded to Sandford's affidavit by saying that the "sole source for the assertion that [X], one, is a CSIS informant, agent, or otherwise providing information and, two, had anything to do with radicalizing Mr. Nuttall, is Mr. Nuttall, through his counsel."
He said "it's not for the Crown to play guessing games about who is and is not a CSIS agent."
He accused Sandford of making a "Hail Mary pass".
"We're dealing with very serious allegations of very serious state misconduct," Eccles said.
"These are allegations that ruin careers, destroy officers' ability to function, and ruin the reputation of the RCMP and CSIS, and they're made on the basis of nothing, in the Crown's submission, that gives them any weight."
CSIS lawyer Donnaree Nygard said the agency's privacy interests would be threatened by an order for records.