British Columbia

B.C. Legislature bomb plotters' entrapment claims hard to prove

Despite a jury finding a B.C. couple guilty of attempting to bomb the provincial legislature, the two may never be sentenced. An indefinite stay of proceedings hinges on the defence's ability to successfully argue that undercover cops entrapped them into planning and executing the foiled plot.

When does police undercover work cross the line into entrapment?

John Nuttall and Amanda Korody were found guilty Tuesday of one count each of conspiring to commit murder and possessing explosives for the benefit or on behalf of a terrorist organization. (RCMP)

More than 200 police officers spent about four months tracking a B.C. couple as they unfurled a plan to detonate pressure-cooker bombs on the provincial legislature lawn during Canada Day two years ago.

Despite a B.C. Supreme Court jury finding that John Nuttall and Amanda Korody are guilty of plotting the attack, the two may never be sentenced. In that case, they would walk free.

An indefinite stay of proceedings hinges on the defence's ability to successfully argue that the undercover cops who befriended the couple entrapped them into planning and executing the foiled plot.

B.C. Supreme Court Justice Catherine Bruce will hear entrapment arguments next month.

"The RCMP manufactured this crime, and that is not permissible in our law," Nuttall's lawyer, Marilyn Sandford, said shortly after hearing the jury verdicts.

What is entrapment?

Entrapment is not a criminal defence. It's an argument people found guilty of a crime can make if they feel they would not have committed it without an undercover sting.

The lawyers for Korody, left, and Nuttall, right, claim the couple was coerced into planning to bomb the B.C. legislature. (Facebook)
While entrapment requires undercover police work, it's different from a so-called Mr. Big sting. In a Mr. Big sting, police try to extract a confession for an already committed crime, says Harout Haladjian, a criminal lawyer in Montreal. Entrapment, on the other hand, involves officers approaching someone to give them the chance to break the law.

Police have the power to offer people opportunities to commit crimes, he says. But, they must follow rules laid out in a 1988 Supreme Court of Canada ruling.

Police must be reasonably suspicious that someone is involved in criminal activity. If an undercover cop walks into an average office and asks a random employee to purchase drugs from him, he says, the employee is likely to successfully claim entrapment if they're found guilty of the offence.

When police believe someone's involved in illegal dealings, says Haladjian, they can only offer the suspected criminal the opportunity to break a similar law of the same scale in a timely fashion.

Police can't provide a suspected low-level marijuana dealer "an opportunity to commit murder or child pornography" or traffic kilograms of cocaine. If they believe he dealt drugs only in the 1970s, it may be too late for a sting operation.

The only time police can randomly accost people without any reasonable suspicion they may be criminals is if police are conducting an investigation, says Haladjian. Undercover cops may stand on streets known to be frequented by prostitutes and offer all passersby the chance to solicit sex.

Persuasion not allowed

What they can't do in either scenario, he says, is successfully persuade someone to break the law.

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      For example, police can't hone in on people with extreme beliefs and goad them into terrorists acts, says Russell Silverstein, a Toronto criminal defence lawyer.

      In their interactions, he says, undercover cops shouldn't say things like: "The West is responsible for the deaths of thousands of innocent Muslims in the Middle East. We should do something about it, you know. We should think about blowing up a building or two."

      That type of police encouragement raises the spectre of entrapment, he says.

      He believes Nuttall and Korody's lawyers will try to claim the undercover cop who befriended the couple provided not only opportunity, but incentives to planning terror attacks.

      Cops helped create bomb plans, lawyers say

      Their lawyers have already publicly claimed RCMP officers manipulated the former heroin addicts into planning their Canada Day terrorist attack. The Crown denies these allegations.

      A person shouldn't be punished for doing something that somebody else somehow threatened him to do.– Russell Silverstein, a Toronto criminal defence lawyer

      The lawyers allege RCMP officers encouraged the couple to hasten their timeline and pursue a more realistic plan.

      "Only after months of work with them, did [police] manage to get them to focus on what they eventually arrested them for," says Michael Mulligan, a criminal lawyer in Victoria. "At the beginning of the investigation, the thing which they eventually did and were found guilty of wasn't apparently something that they had in mind."

      The couple's original plans allegedly involved hijacking a nuclear submarine or taking a commuter train hostage on a rail line that stopped operating years ago.

      In June 2013, the RCMP paid for the couple to spend three days relaxing and plotting in a Kelowna, B.C., hotel.

      Only after this trip and talking to police did the couple create a plan to bomb the B.C. legislature, Mulligan says. The RCMP claims the trip offered a chance for police to access the couple's basement suite.

      'Very, very high threshold' of proof

      It's now up to Nuttall and Korody's lawyers to prove that undercover cops didn't follow the rules during the more than four-month sting.

      Once the judge hears the evidence, Haladjian says she will ask herself: "If we take a hypothetical person with the same strengths and weaknesses of the accused, would he have been induced into committing the crime or would he have resisted?"

      If the hypothetical person is likely to have been swayed into the crime as well, the judge will stay the proceedings, Haladjian says.

      "It's a very, very high threshold that has to be met," says Silverstein. If their lawyers manage to convince the judge the couple was coerced into committing a crime they otherwise wouldn't have, neither will be sentenced on the charges they were found guilty of.

      "A person shouldn't be punished for doing something that somebody else somehow threatened him to do, cajoled him into doing, bribed him into doing."

      With files from Natalie Clancy

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