Spy agency twist stalls terror trial
Judge says Surrey couple deserves information shared between CSIS and RCMP
The Canadian Security Intelligence Service had “human resources” operating in Metro Vancouver mosques between 2011 and 2013 who may have acted as Jihadi agents provocateur, the Surrey couple found guilty of terrorism are suggesting.
John Nuttall was so concerned after meeting one or more of these people while attending a local mosque that he met with the spy agency to turn them in.
In a bizarre turn to an already strange trial, the court heard that in late 2011 or early 2012 Nuttall had his landlord set up a meeting with CSIS in which he offered to inform on the Islamic extremists. As a result of the meeting, defence lawyers implied that Nuttall became a target while the extremists he identified may have been or became “human resources” for the agency.
Now they are demanding to know what information was exchanged between CSIS and the RCMP.
B.C. Supreme Court Justice Catherine Bruce on Thursday said the pair found guilty of planning mass murder at the legislature deserve access to information the spy agency shared with the RCMP and to know what police were told.
But the agency can keep secret other information it gathered as part of its own parallel investigation of Nuttall and his common-law wife Amanda Korody, who were Boston Marathon bombing copycats.
“It is only the RCMP that can be found to have entrapped the accused or breached their charter rights and if the RCMP had no knowledge of the information it cannot have affected or influenced their actions,” Bruce said.
“Unless this information was shared with the RCMP, it cannot be relevant to the issues of abuse of process or entrapment.
"I have ordered the Crown to make an official request for CSIS’s notes and records for its communication with the RCMP regarding (John) Nuttall regarding the period from Dec. 2012 until July 2013.”
She said the RCMP must also provide to the defence information from CSIS that was not reduced to writing because it was obvious police knew more than they put into “cryptic” notes.
The Crown must obtain a statement from the RCMP explaining what information was withheld, who it was shared with and ask CSIS what information its employees revealed.
Nuttall, 40, and Korody, 32, were found guilty by a jury of two terrorism charges for conspiring to detonate pressurecooker bombs in Victoria on Canada Day 2013.
A conviction has not been registered, however, because Bruce must determine whether police committed an abuse of process and entrapped the pair.
Those proceedings, which were to begin next week, have been derailed by the application for disclosure from CSIS.
Defence lawyers are applying in Federal Court to have the agency’s “human resources” unmasked.
CSIS appears to have alerted the RCMP that Nuttall posed a national security threat Feb. 7, 2013, after he attempted to buy potassium nitrate, an explosives precursor, the previous month.
Bruce emphasized that the CSIS investigation was not so entwined with their RCMP operation as to make them a single entity.
Still, the reason the RCMP embarked on the elaborate ruse was a key element to entrapment and that was why the disclosure order concerning the time immediately preceding the start and throughout the criminal investigation was necessary, she explained.
Frustrated prosecutor Peter Eccles, who characterized the application as a fishing expedition, warned that the spy agency had already indicated its reluctance to comply with further disclosure.
“We are dealing with national security, clearances at the secret and top secret level,” he maintained.
The RCMP provided regular reports to CSIS so the two operations did not get in the way of each other, but the spies did not reciprocate, Eccles said.
Some 240 RCMP officers were involved in the sophisticated investigation into the impoverished, addicted couple living in a basement suite.
Nuttall and Korody were seen and heard on audio and video recordings planning the legislature attack with the help of undercover Mounties and planting dummy explosives in Victoria.
The trial did not hear why the Mounties decided to focus on the lonely duo with mental health issues.
Aside from the Mounties, who acted as extremists or played cameo roles in the elaborate production, the court was told there was a team of surveillance experts from the force’s famed Special O group and another squad from the Special I division who were responsible for the startto-finish footage.
But there was no mention of the spy agency’s involvement.
The trial was set to resume June 29, but that has been postponed until July 13 while the Federal Court hearings and other issues affecting scheduling are clarified.
Bruce said she is concerned about the significant delays these new issues create because she will retire in September 2016. Eccles said he was even more worried — he retires in December.
The Federal Court may have to decide not only whether the CSIS “human resources” should be identified, but also the disclosure issue if the agency balks at revealing more of its secrets.