Entrapment decision highlights necessary changes to Bill C-51
“They were not capable of carrying out a terrorist attack,” said the young man who showed up at my door after midnight on June 3, 2006. Hours earlier, Canada had witnessed a massive anti-terror sweep. Seventeen people were arrested (an 18th individual was picked up later), though seven had their charges stayed or dismissed.
My client had attended what the Royal Canadian Mounted Police labelled a “training camp” in Rockwood, Ont., a few weeks earlier. The camp was just one of the pieces of two terror plots facilitated by paid government informants. In fact, the RCMP also arranged for delivery of a harmless substance (passed off as ammonium nitrate) to the group in a sting operation.
The19-year-old wanted to reach out to the police. He later testified for the government that there was no training, just some guys “chilling” and trying to “look cool, to look tough.” The entrapment defence failed at trial.
Given the deferential nature of courts in terrorism trials, the recent B.C. Supreme Court decision tossing out convictions against John Nuttall and Amanda Korody was a stunner. “The world has enough terrorists. We do not need the police to create more,” said Justice Catherine Bruce in a scathing ruling. “It was the police who were the leaders of the plot.”
Proactive investigations are the norm in the anti-terrorism realm. Similar to drug, gang and prostitution offences, terrorism due to its very nature is ideal for state actors to infiltrate and disrupt.
The problem is that informants sometimes provide the means, opportunity and even inducements to push someone to commit one of the growing numbers of vague and ill-defined terrorist crimes. Indeed, even agencies have an incentive, in the words of former assistant director of the FBI, Thomas Fuentes, to “Keep Fear Alive” with an eye on the budget.
It would be disingenuous to argue that terrorism should be treated the same as other crimes because the state interests are especially compelling. At the same time, as Justice Bruce correctly surmised, the values engaged in this context — equality, freedom of speech, religion and association — make it important that culpability of terrorism offences be beyond reproach.
Courts have the main role in upholding the principles of fundamental justice and ensuring the state does not target people for discriminatory reasons.
Indeed, given the potential Charter rights violations, courts must exercise extreme caution to ensure the state acts proportionately.
As Justice Bruce demonstrated, entrapment doctrine can and should evaluate the initial targeting decision, the level of police involvement and when appropriate provide a remedy when the state oversteps and induces terrorism.
The anti-terrorist laws passed last year raise a plethora of new issues and significantly alters the security landscape: It gives intelligence powers beyond evidence gathering (to actively target threats and derail plots); creates new offences (criminalizing “terrorist propaganda” and the “promotion of terror”); lowers the legal threshold to trigger detention from those who will carry out an offence to those who may; etc.
Given the increased breadth and vagueness of terrorism offences the line between a serious crime threatening collective security and divisive political or religious crimes created by the state is now even more blurred.
Our system should insist on the bare minimum individualized reasonable suspicion. Bill C-51 goes beyond that by allowing people to be targeted for their views and associations (Muslims). We must reject pre-emptory prosecutions where vulnerable individuals are targeted and manipulated not for any acts, but rather for their thoughts and associations. Such cases undermine the delicate but necessary trust between the community and the state.
Setting up the mentally ill or hapless to commit crimes they could never carry out on their own and spending tax dollars to save us from these plots is at best ludicrous. Our agencies should be dealing with actual threats, not creating them.
The B.C. court ruling highlights the need for major amendments to Bill C-51. Rather than appealing it, Ottawa must curtail the carte blanche given to national security agencies. This judgment and NDP MP Randall Garrison’s proposal to repeal the bill, as unlikely and as undesirable as that may be, are just what we need to push for change.