IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Nuttall, |
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2016 BCSC 1404 |
Date: 20160729
Docket: 26392
Registry: Vancouver
Regina
v.
John Stuart Nuttall and Amanda Marie Korody
Restriction
on Publication: Pursuant to ss. 486.5(1) and 486.5(9) of the
Criminal Code there shall be no publication, broadcast or transmission
in any way of any information that could identify any undercover police
officers including any pseudonyms used by the undercover police officers
involved in the investigation of the Accused. This publication ban applies
until further order of the Court. These Reasons for Judgment comply with this
publication ban.
These Reasons for Judgment have been edited for publication purposes.
Before: The Honourable Madam Justice Bruce
Reasons for Judgment
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Counsel for the Crown: |
Peter A. Eccles |
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Counsel for the Accused, John Stuart Nuttall: |
Marilyn E. Sandford |
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Counsel for the Accused, Amanda Marie Korody: |
Mark R. Jetté |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. |
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Place and Date of Judgment: |
Vancouver, B.C. |
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Table of Contents |
Paragraph Range |
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[1] - [3] |
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[4] - [9] |
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[10] - [14] |
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[15] - [471] |
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[15] - [32] |
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[33] - [44] |
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[45] - [51] |
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[52] - [54] |
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[55] - [66] |
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F. The Scenarios for Project Souvenir’s Undercover Operation |
[67] - [471] |
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[472] - [475] |
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[476] - [503] |
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[504] - [536] |
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[506] - [511] |
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[512] - [514] |
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[515] - [534] |
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[535] - [536] |
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[537] - [614] |
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[537] - [579] |
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[537] - [556] |
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[557] - [569] |
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[570] - [570] |
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[571] - [579] |
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[580] - [614] |
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[615] - [837] |
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[615] - [781] |
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[615] - [661] |
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[662] - [781] |
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a) The Crown’s Preliminary Argument based on the Jury Verdict on Motive |
[662] - [670] |
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b) Was there Inducement within the Meaning of the Principles in Mack? |
[671] - [768] |
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[671] - [673] |
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ii. Use of Deceit, Fraud; Implied Threats; No Ongoing Criminal Venture |
[674] - [687] |
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[688] - [694] |
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[695] - [717] |
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v. Persistence and Proportionality of the Police Conduct, including Illegal Acts |
[718] - [768] |
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[769] - [781] |
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[782] - [837] |
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[784] - [792] |
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[793] - [824] |
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[825] - [833] |
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[834] - [837] |
[1] On June 2, 2015, Mr. Nuttall and Ms. Korody were convicted by a jury of a number of terrorism offences arising from the planting of explosive devices on the grounds of the Legislature in Victoria on July 1, 2013. Those verdicts have yet to be entered as the defendants have applied for a stay of proceedings based on the conduct of the RCMP during its undercover investigation into the offences with which they were ultimately charged.
[2] The defence application for a stay is based on entrapment and a broader allegation of abuse of process by the RCMP. The abuse of process claim includes allegations that the RCMP committed criminal offences in the course of the investigation without authorization under s. 25.1 of the Criminal Code; and, that it interfered with the religious liberty of the defendants contrary to s. 2(a) of the Charter of Rights and Freedoms. The defendants contend that the undercover operation was a serious violation of the principles of R. v. Mack, [1988] 2 S.C.R. 903, and that the RCMP’s failure to respect the boundaries of permissible police conduct resulted in a police generated crime.
[3] The Crown opposes the application and responds that at all times the prevailing objective of the RCMP was to prevent a terrorist act and ensure public safety. It maintains that at no time did the conduct of the police in dealing with the defendants – two aspiring terrorists committed to violent jihad – ever amount to entrapment. Rather, the undercover operation was an innovative and effective means of investigating serious terrorism offences, which, by their nature, provide no other viable means of investigation. Moreover, the Crown says that the conduct of the RCMP was neither criminal nor in violation of the defendants’ religious freedom.
[4] The RCMP’s interest in Mr. Nuttall arose from a tip given to them by CSIS in early February 2013 that indicated he was attempting to purchase potassium nitrate, a precursor to an explosive substance, at local pharmacies. Over the five months between February 1, 2013 and July 2, 2013, the RCMP conducted an investigation through surveillance and an undercover operation, code-named Project Souvenir, into possible terrorist activities by Mr. Nuttall and his common law spouse, Ms. Korody. The operation involved 28 scenarios ranging from a single telephone call to complex encounters spanning several days. The operation culminated with the planting of three inert explosive devices made from pressure cookers on the grounds of the Legislature in the early morning hours of July 1, 2013.
[5] The defendants were jointly charged on a direct indictment with four counts of terrorism-related offences. Count 1 alleged that the defendants conspired to murder persons unknown for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code. Count 2 alleged that the defendants conspired to commit the indictable offence of placing an explosive in or against a place of public use, with intent to cause death or serious bodily injury, for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code. Count 3 alleged that the defendants knowingly facilitated a terrorist activity contrary to s. 83.19 of the Code. Count 4 alleged that the defendants committed the indictable offence of making or having in their possession an explosive substance with intent to endanger life or cause serious damage to property for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code.
[6] The terrorist group was particularized as Mr. Nuttall and Ms. Korody. The Crown did not allege any other members of the conspiracy. There was also only a single conspiracy alleged; that is, to plant explosive devices on the grounds of the Legislature in Victoria to murder persons unknown or cause serious injury to persons unknown.
[7] The trial proceeded before a jury commencing February 2, 2015, and at the conclusion of the evidence the defence applied for a directed verdict regarding Count 3, facilitation of a terrorist activity. I granted the defence application and directed the jury to acquit on Count 3: R. v. Nuttall, 2015 BCSC 943. In addition, I granted a defence application for a special instruction on Counts 1 and 2 of the Indictment based on a finding that the counts were duplicitous: R. v. Nuttall, 2015 BCSC 962. In particular, the jury was instructed that if they convicted the accused on Count 1, or the lesser included offence, they were not to address Count 2. If they acquitted on Count 1, they must go on to address Count 2.
[8] On June 2, 2015, the jury convicted Mr. Nuttall and Ms. Korody on Counts 1 and 4 of the Indictment. The Court directed a conditional stay of proceedings with respect to Count 2 of the Indictment.
[9] During the trial there was little dispute as to what had occurred during the police investigation into the defendants’ activities because most of the interactions between Ms. Korody and Mr. Nuttall, as well as the police interactions with the defendants, were audio and/or video recorded. The jury was provided with a lengthy chronology of events containing a detailed description of the words and acts of the defendants and the undercover police officers during the investigation. I have considered the evidence contained in the chronology in my assessment of the present application in addition to the evidence heard during the jury and the entrapment portions of the trial.
[10] During the entrapment voir dire, the defence called many of the police officers who took part in Project Souvenir. Officer A was the primary undercover officer; he was in contact with the defendants throughout the operation. Officer D and Officer C also played roles in the undercover operation. Cst. Mokdad provided expertise on the Islamic faith to the investigative team through the team leader and to Officer A directly. Cpl. Matheson was the cover officer. The original command triangle consisted of Sgt. Kalkat, Cpl. McLaughlin and Cpl. Sovdi. Cpl. McLaughlin was later replaced by S/Sgt. Kassam. Supt. Bond was the overall supervising officer for the Project until the final weeks in June 2013 when he was replaced by Insp. Corcoran.
[11] Although none of the police witnesses could be characterized as hostile, the defence position was severely critical of the officers’ conduct during the investigation. Thus it was clear that the officers were adverse in interest to the defence. As a consequence, I permitted substantial latitude in the direct examination to ensure the defendants were accorded a fair trial. Conversely, I counselled the Crown that it should refrain from leading the officers in cross-examination where the evidence was in dispute because such testimony would have little credibility in light of the sympathies of the witnesses with the Crown’s position. Further, at times during the cross-examination, I did not permit the Crown to lead the officers in their evidence on disputed issues in fairness to the defendants.
[12] I found that the officers who testified during the entrapment voir dire were credible witnesses for the most part, with some notable exceptions. Cpl. McLaughlin demonstrated very little recollection of events even with pointed prodding by defence counsel in his direct examination. However, when cross-examined by the Crown, he had a detailed recollection of events and demonstrated a new found memory of matters addressed in the Crown’s questions. I found the officer’s selective memory in this regard to weigh heavily against his credibility. He appeared to have a recollection of only those portions of the operation that would favour the police and their handling of the investigation.
[13] Sgt. Kalkat was also not a credible witness in general. His evidence was contradicted by Cst. Mokdad, Supt. Bond and Cpl. Matheson. It was also internally inconsistent and contrary to his written record of events. I found it astounding that he kept so few notes of meetings and conversations with his team about the project and yet purported to have a detailed recollection of the events favourable to the Crown’s position. He also used the witness stand as an opportunity to provide the Court with his opinions about the legality of the undercover investigation and often failed to direct his mind to the questions posed by the defence.
[14] Lastly, I found Officer A’s testimony during the jury portion of the trial, particularly as it related to his personal views of the defendants’ capabilities, to be incredible and unreliable. It was quite apparent that he had a personal stake in the outcome of the investigation and was not objective when relating his observations and impressions of the defendants’ acts and statements, which the Court also observed first-hand in the video and audio recordings of their encounters during the undercover scenarios.
[15] On October 17, 2012, M.C. filed a complaint with the RCMP that alleged Mr. Nuttall was espousing violent Islamic beliefs. M.C.’s immediate concern was that Mr. Nuttall claimed to have killed a Jewish woman. M.C. also reported that he believed Mr. Nuttall had mental health issues. M.C. advised the police that Mr. Nuttall had converted to Islam in 2011 and had been telling people he wanted to fight a holy war in Afghanistan. M.C. learned from other people that Mr. Nuttall frequented a mosque in Vancouver and had espoused radical extremist views. When the police attended Mr. Nuttall’s residence to discuss M.C.’s complaint, he told the police that he was joking with M.C. At the time of the police visit Mr. Nuttall was intoxicated. The police found no evidence of any murder; they noted no signs of a struggle inside Mr. Nuttall’s residence and there had been no reports of shots fired in the neighbourhood.
[16] After the police left Mr. Nuttall’s residence, M.C. called the RCMP again to report that Mr. Nuttall left him messages calling him a traitor. He was careful to note that Mr. Nuttall had not threatened him. When the police returned to Mr. Nuttall’s residence to question him about the call to M.C., he was again intoxicated. Mr. Nuttall said he wanted to know why M.C. was calling the police and that it was M.C. who was the terrorist and wanted to do jihad. The police were sufficiently concerned about Mr. Nuttall’s mental health to call Car 67 for an assessment.
[17] The next day a Car 67 officer and a psychiatric nurse attended Mr. Nuttall’s residence. The nurse spoke with Mr. Nuttall, who by then was sober and calm, and concluded he was not suffering from a mental illness. The nurse also concluded Mr. Nuttall might be developmentally delayed because he spoke slowly and had difficulty understanding what the officer said to him.
[18] The M.C. complaint was flagged by the Surrey RCMP and eventually it reached the Integrated National Security Enforcement Team (“E-INSET”), a division of the RCMP that deals with criminal activities that pose a risk to national security. The complaint came to the attention of Insp. Bond (later promoted to the rank of superintendent), who at the time was a monitoring officer in this division. Supt. Bond assigned Cst. Pannu to open a file on the complaint in the Secure Police Reporting Occurrence System (“SPROS”) and determine whether there was a need for a follow-up investigation by E-INSET. Cst. Pannu determined that no further investigation was necessary and closed the SPROS file.
[19] As part of his duties, Supt. Bond regularly met with a local CSIS representative to “de-conflict” or, in other words, to ensure their respective investigations did not come into conflict. On November 2, 2012, Supt. Bond passed on information about the M.C. complaint to the local CSIS representative. Later, during another routine de-confliction meeting on December 20, 2012, CSIS asked for the actual occurrence reports (SPROS files) on the M.C. complaint and an earlier complaint from July 2012 of a similar nature. At this time CSIS had only “unverified general concerns” about Mr. Nuttall.
[20] On January 21, 2013, Supt. Bond learned that RCMP National Headquarters E-INSET Division had received a disclosure letter from CSIS on January 16, 2013, that indicated it had unverified general concerns that rendered Mr. Nuttall a “threat to public safety”. A disclosure letter cannot be used in legal proceedings and relates to conduct that CSIS believes is approaching criminal in nature. Supt. Bond was made aware of the disclosure letter by Insp. Watts from Headquarters E-INSET Division who reported to C/Supt. Tremblay. According to Insp. Watts, the information contained in the disclosure letter provided the same type of information about Mr. Nuttall as that contained in the M.C. complaint. However, Supt. Bond was not given a copy of the letter. Insp. Watts advised that he would be pressing CSIS for an advisory letter, which is a carefully prepared letter that is reviewed by legal counsel before being released by CSIS. It may contain highly confidential information about persons of interest to CSIS and, with authorization from CSIS, an advisory letter may be used to obtain search warrants and other intercept orders.
[21] Supt. Bond was briefed on the July and October 2012 complaints about Mr. Nuttall and, on January 24, 2013, he met with the local CSIS representative who advised that Mr. Nuttall might be a recent Muslim convert who was attempting to recruit others and might be capable of violence. CSIS disclosed that it was investigating Mr. Nuttall, but it did not disclose to Supt. Bond any specifics about the type of techniques they were using. Nor did CSIS identify its source of intelligence on Mr. Nuttall.
[22] During the latter part of January 2013, Supt. Bond repeatedly requested additional disclosure from CSIS regarding the nature of its concerns about Mr. Nuttall. What the RCMP wanted was an advisory letter that they could use as a foundation for commencing an investigation into Mr. Nuttall’s activities. On January 29, 2013, Supt. Bond had the SPROS files from an earlier complaint in July 2012 (which involved a neighbour claiming she had overheard Mr. Nuttall speaking on the phone about blowing up Islamic countries) re-opened along with the M.C. October 2012 complaint. He instructed the Special “O” unit to organize surveillance of Mr. Nuttall to commence the following week. In particular, Supt. Bond instructed that Mr. Nuttall’s activities be monitored to determine if he was engaged in criminal activities or posed a national security risk and, if so, what investigative techniques beyond surveillance were advisable.
[23] On February 1, 2013, Insp. Ryan from RCMP National Headquarters called Supt. Bond to inform him that an advisory letter was being prepared and it would indicate that Mr. Nuttall was attempting to acquire precursors to explosive substances. He also indicated that CSIS currently had coverage on Mr. Nuttall. Later that day, CSIS confirmed that it had more than one investigative technique involved in its coverage of Mr. Nuttall and one of these was physical surveillance. Supt. Bond agreed not to pass this information on to other officers in E-INSET; however, the existence of CSIS surveillance became apparent to most of the investigative team early on in the project. Thereafter, Supt. Bond ensured that RCMP surveillance did not conflict with CSIS surveillance of Mr. Nuttall. RCMP surveillance began the following day.
[24] On February 2, 2013, Supt. Bond ordered E-INSET to commence an investigation into Mr. Nuttall’s background and associates. At that time he appointed Cpl. Drummond as the lead investigator and E-INSET began collecting background information. On February 6, 2013, Supt. Bond replaced Cpl. Drummond with Sgt. Kalkat as the team commander for the investigation. Sgt. Kalkat testified that Supt. Bond advised him at the outset that there was no evidence to suggest that Mr. Nuttall posed an imminent threat. Supt. Bond said this view was based on the information that CSIS had disclosed to him. Nor did the RCMP have any evidence that Mr. Nuttall was engaged in criminal activity apart from what was contained in the CSIS advisory letter.
[25] Cpl. McLaughlin was appointed the primary investigator and Cpl. Sovdi was appointed the file coordinator. Along with Sgt. Kalkat, these officers formed the command triangle for the investigation. However, Sgt. Kalkat was clearly in charge of the investigation and directed the other officers.
[26] Supt. Bond was extremely busy during Project Souvenir because not only was he a monitoring officer for all of E-INSET’s investigations, but he was also the Assistant Criminal Operations Officer in Charge and had many administrative and budgetary duties. As a consequence, Sgt. Kalkat essentially worked independently on Project Souvenir with the other members of the command triangle. Sgt. Kalkat reported to Supt. Bond on the ongoing operation; however, the sergeant made all of the decisions affecting the project.
[27] As monitoring officer, Supt. Bond was responsible for reporting on the operation to senior officers in E-INSET Division and at RCMP National Headquarters. At the local level he reported to A/Commr. Rideout and C/Supt. Abbruzzese. At the national level he reported to C/Supt. Tremblay, Director General for Criminal Operations at National Headquarters of the RCMP, who instructed Supt. Bond “to work hard on this file and treat it as a priority investigation”.
[28] To stay up to date on the project, Supt. Bond was orally briefed by Sgt. Kalkat and he read the C237 reports drafted by Sgt. Kalkat during the operation. These reports contained a summary of the operation and the various scenarios. There were also weekly meetings with the team leaders and senior staff for all investigative teams where Supt. Bond received updates on all of the active investigations. While senior officers at National Headquarters, as well as Supt. Bond, had access to the SPROS files that contained all of the transcripts from Project Souvenir, none of these officers accessed these original documents during the undercover operation. Supt. Bond testified that he and his superior officers relied on the C237 report summaries.
[29] On or about February 8, 2013, Insp. Corcoran took over Supt. Bond’s responsibilities as monitoring officer while the superintendent was on leave for about ten days. Insp. Corcoran took over Supt. Bond’s duties entirely on June 2, 2013 and continued to supervise the project until its conclusion. Both Supt. Bond and Insp. Corcoran acted as the CSIS contacts on the project and they continued to de-conflict with CSIS regarding their parallel operations. This was done at weekly meetings and was almost exclusively a one-way sharing of information because CSIS rarely revealed its intelligence about Mr. Nuttall. Supt. Bond ensured CSIS knew about the contact between Officer A and the defendants as the operation progressed.
[30] Insp. Corcoran had been in charge of E-INSET’s community outreach program for many years and he had worked with Muslim groups to educate them about the signs of radicalization in order to make them more aware of who might be planning terrorist acts. He testified that in Canada and within the RCMP, in particular, there are no de-radicalization programs. In his view these types of programs have not been very successful in the Middle East. Steps were taken by CSIS to de-radicalize some of the people involved in the Toronto 18 case but the RCMP did not participate in that effort. He testified that currently the RCMP is developing a de-radicalization program.
[31] In February 2013, Insp. Corcoran read the operational plan prepared by Sgt. Kalkat (discussed below) and learned about the October 2012 complaint made by M.C. about Mr. Nuttall’s radical views of Islam and the subsequent police attendances to his residence. The inspector identified several risk factors in this complaint, which included a recent Muslim convert, talking about violent criminal activities and using terrorist language, as well as reaching out to like-minded people.
[32] Insp. Corcoran was never briefed on the discussions about the de-radicalization strategies that were spearheaded by the undercover shop during Project Souvenir. He essentially relied on Sgt. Kalkat as his main source of information concerning the project and rarely examined any original material such as transcripts of the intercepted communications.
[33] As noted, Supt. Bond ordered an investigation into Mr. Nuttall’s background and associates in early February 2013. A search of the RCMP databases revealed the following information about the defendants.
[34] A criminal record check indicated that Mr. Nuttall had been sentenced for drug-related offences in 1995 and for mischief and carrying a concealed weapon in the same year. In 1996, he was sentenced to 12 months’ imprisonment for kidnapping and robbery, and 18 months concurrent for aggravated assault. (During a scenario on May 4, 2013, Mr. Nuttall told Officer A that he had not committed these crimes and had taken the blame to show loyalty; he refused to point the finger at his co-accused.) In 1997 he was sentenced for assault. There was a gap in the record until 2002 when Mr. Nuttall was sentenced for failure to comply with a recognizance, mischief, assault and failure to comply with an undertaking. The mischief conviction involved Mr. Nuttall vandalizing a pharmacy when he was denied methadone because he was high on drugs. The last conviction on his record was in March 2003 for robbery; he received an 18-month conditional sentence order.
[35] A search of PRIME revealed police interaction with Mr. Nuttall from 1995 to 2010. Most of the police attendances involved intoxication or public disturbance. The PRIME reports noted that Mr. Nuttall was unable to control himself due to drug dependence and he had an historic head trauma. Some earlier police contacts in 2002, 2003 and 2005 indicated Mental Health Act concerns. The incidents began to involve Ms. Korody in or about 2009. The incidents in 2009 and 2010 occurred when Mr. Nuttall and Ms. Korody were homeless and living on the streets of Victoria.
[36] In July 2010, the police became involved due to a dispute between Mr. Nuttall and a third party. There were also earlier incidents in 2010 where Ms. Korody and Mr. Nuttall were transported to hospital due to drug and alcohol usage. In August 2010, the police attended due to reports that Mr. Nuttall was hitting Ms. Korody; both of them were intoxicated. There were numerous additional reports and police attendances that involved the defendants being intoxicated at a residence or in public.
[37] An investigative log from the SPROS file indicated that there were mental health concerns raised by Mr. Nuttall’s behaviour in 2009:
NUTTALL has exhibited a capacity for irrational behaviours that suggest mental health problems. Victoria General Occurrence VI 2009-22443 refers to another assault file in which NUTTALL attacked the complainant and his vehicles. NUTTALL had attacked the complainant’s Mini Cooper with his bare fists. He also damaged the hood of the complainant’s Dodge pickup by repeatedly head butting it. [Emphasis added.]
[38] In addition, the police obtained personal data about the offenders. Mr. Nuttall was born on October 12, 1974. Although at one time Mr. Nuttall had a driver’s licence, in 2013 it was under suspension and there were large outstanding fines. Ms. Korody was born on March 28, 1983. She had no criminal record and the only police incidents involving Ms. Korody were the ones noted above with Mr. Nuttall. No other police database had any information about Ms. Korody or Mr. Nuttall. The Canada Border Services Agency had no files on either of the defendants. Sgt. Kalkat testified that there was no record of either Mr. Nuttall or Ms. Korody ever having a passport or leaving the country. He also testified that during the undercover operation the police learned that Ms. Korody had no form of identification. At some time prior to August 2012, Ms. Korody had asked her mother to help her get some identification, and photocopies of her SIN card, care card and B.C. identification card were located in the defendants’ apartment after their arrest in July 2013.
[39] Two police incidents in 2012 were recorded on the Surrey RCMP files. As noted earlier, in July 2012 Mr. Nuttall’s neighbour contacted the police claiming that he could hear Mr. Nuttall speaking loudly on the telephone about blowing up Islamic countries. When the police arrived the complainant was intoxicated and not fully rational. Mr. Nuttall was calm and cooperative with the police. He let them into his home and the police observed nothing suspicious. Mr. Nuttall said he was speaking on the telephone in a loud voice because the reception was poor. No further action was taken on the file.
[40] The second complaint was M.C.’s from October 2012. As outlined earlier, a Car 67 officer and a psychiatric nurse attended Mr. Nuttall’s residence to assess his mental state. The nurse did not believe Mr. Nuttall met the criteria for apprehension under the Mental Health Act at that time but she believed he was developmentally delayed. The Car 67 officer warned Mr. Nuttall not to contact M.C. again. Although Sgt. Kalkat testified that the “delay” was only noted in regard to Mr. Nuttall’s speech, this evidence does not accord with the notes of the incident recorded in police files and briefing minutes. Further, it was the understanding of the other officers involved in Project Souvenir, including Cpl. Matheson, that Mr. Nuttall was generally developmentally delayed.
[41] There was no indication in the RCMP files that Mr. Nuttall contacted M.C. after the second attendance by the police and their warning not to contact him. The evidence at trial confirmed that Mr. Nuttall had no further contact with M.C. after leaving the telephone message in mid-October 2012.
[42] On February 2, 2013, the RCMP re-interviewed M.C. in regard to the complaint he filed about Mr. Nuttall in October 2012. Although Supt. Bond directed that all associates of Mr. Nuttall be interviewed at this early date so as not to compromise any undercover operation the investigative team decided upon, there were no other people interviewed apart from M.C. Supt. Bond testified that the police felt interviews of associates would provide limited information about Mr. Nuttall’s potential as a national security threat. He also agreed with the Crown’s suggestion that Mr. Nuttall might have discovered the police were looking into him and gone “underground”.
[43] In the second interview, M.C. said that when he met Mr. Nuttall in 2011, Mr. Nuttall was a recent convert to the Muslim faith and knew little of Muslim practices. He did not know the basics about praying to Allah. When he attempted to educate Mr. Nuttall about the Muslim faith, it became apparent that Mr. Nuttall was more interested in extremist views of the religion. M.C. said that eventually Mr. Nuttall was asked not to attend the prayer room (which was located behind a camouflage store) due to his radical beliefs. The police never investigated whether M.C. personally observed Mr. Nuttall’s behaviour at the prayer room or whether he was simply passing on information he had heard from other people. The RCMP did not contact anyone in the prayer room or the other mosques frequented by Mr. Nuttall to confirm M.C.’s statements about him. It was not until late April 2013 that Mr. Nuttall made statements to Officer A about being shunned by people at the mosques he frequented due to his radical beliefs.
[44] M.C. had not been in contact with Mr. Nuttall since October 2012 and did not know anything about his current activities. M.C. offered the opinion that Mr. Nuttall was mentally slow and simple and might have mental health issues. M.C. said that Mr. Nuttall told him that he had a brother in the Canadian army who had been killed in Afghanistan. The RCMP later learned that this was untrue. Sgt. Kalkat agreed that in February 2013, the police were still in the dark about any mental health problems that Mr. Nuttall might be experiencing. He also agreed that Mr. Nuttall demonstrated with Officer A the same openness and talkative behaviour regarding his jihadist ideas that he showed with M.C. even though he barely knew these men. The sergeant agreed that this is not the usual behaviour of a serious terrorist.
[45] The RCMP surveillance of Mr. Nuttall began on February 2, 2013, when two officers attended his basement suite in Surrey on the pretext of a domestic complaint in the neighbourhood. The officers believed that Mr. Nuttall was high on marihuana and the basement suite had an overwhelming odour of marihuana. Mr. Nuttall acted nervously and referred to the officers as armed invaders. There were authentic-looking modified paintball guns hanging on the walls, a laptop was seen in the suite, and Islamic scripts and empty liquor bottles were visible to the officers. The officers noted that an elderly female resided with the defendants in the basement suite. The RCMP later learned that this elderly woman was Mr. Nuttall’s grandmother. The purpose of this visit was to learn the identity of Mr. Nuttall’s wife. She identified herself as Ms. Korody but had no identification.
[46] Thereafter, E-INSET continued to use its own members, as well as members from the Special “O” unit, to conduct surveillance on Mr. Nuttall and Ms. Korody. To assist with physical surveillance, a pole camera was placed outside their residence in April 2013 to monitor anyone entering or leaving the basement suite.
[47] The physical surveillance of Mr. Nuttall and Ms. Korody up to the commencement of the undercover operation revealed no criminal activity or any plans to commit crimes. The defendants were not adventurous; they remained within a few blocks of their home and frequented a local gas station for coffee and cigarettes. They had no vehicle and travelled on foot within a four-block radius of their basement suite. Apart from grocery shopping, filling prescriptions at the local pharmacy, and playing paintball on the railway tracks in the rear of their residence, the defendants spent little time outside of their basement suite. The police also observed Mr. Nuttall and Ms. Korody to have a rather pedestrian schedule. When they emerged from their basement suite it was usually in the afternoon and by 7:00 p.m. most evenings they were back in their residence.
[48] On one occasion the police observed Mr. Nuttall and Ms. Korody attend a “flop house” in their neighbourhood and stand at the door for a few minutes. The police associated this residence with drugs and later learned that Mr. Nuttall and Ms. Korody were recovering heroin addicts. Mr. Nuttall was also observed buying alcohol at the local liquor store on several occasions. This behaviour was not observed after he made contact with Officer A. On one occasion Mr. Nuttall was observed in a vehicle associated to a Sudanese male who appeared to be in regular contact with Mr. Nuttall. This person (T.E.) was investigated by the police to determine if he had a criminal record or criminal associations. He had no criminal record and there was no record of any police incidents.
[49] During the physical surveillance of Mr. Nuttall and Ms. Korody, the RCMP observed that they interacted with a small number of people on an irregular basis. Ms. Korody invariably wore a niqab or a hijab while in public and appeared to act subserviently when in the company of Mr. Nuttall. They were on welfare and did not appear to have access to other financial resources. Neither of the defendants appeared to have a job or a regular schedule of any kind. By early February 2013, the RCMP had also learned that while at home the defendants commonly played video games or were otherwise occupied on their computers. One of the surveillance officers talked to the grandmother in a shop near the basement suite and she expressed the view that Mr. Nuttall and Ms. Korody were always playing video games on their computers. In addition, despite monitoring of their travel by Border Lookouts, the Canadian Air Transport Security Authority, and physical surveillance, the defendants were never observed to leave the country or even the province.
[50] During the surveillance of Mr. Nuttall shortly before February 14, 2013, the police observed him with a group of males in an area near the railway tracks behind his basement suite. The surveillance officers believed they observed the flame of a lighter and heard loud popping sounds. There was never any further confirmation of what caused the popping sounds. A police dog and handler were brought in to detect explosive residue but nothing was found. There were never any further incidents of this nature. This was the only incident of any significance reported to Supt. Bond during the early surveillance and prior to the defendants’ contact with the undercover officer. Later the police learned that Mr. Nuttall played paintball at the railway tracks with a group of males and sometimes Ms. Korody joined them.
[51] On February 21, 2013, Special “O” stopped providing surveillance for Project Souvenir and this function was transferred exclusively to the E-INSET Division. Special “O” was expensive to use and was required for other investigations. It is apparent that had there been any indication that Mr. Nuttall was an imminent threat, Special “O” would not have been re-assigned elsewhere. The project nevertheless remained a national priority for the RCMP’s E-INSET Division in Ottawa where the concern was to determine whether Mr. Nuttall posed a real risk to the public.
[52] On February 7, 2013, CSIS forwarded the formal advisory letter to Supt. Bond, which letter reported that CSIS had recently learned that Mr. Nuttall had been attempting to purchase potassium nitrate from pharmacies in the Lower Mainland on January 31, 2013. The advisory letter did not reveal a source for the tip. Potassium nitrate is one ingredient in the formula for making an explosive known as black powder. There was never any scenario designed to elicit Mr. Nuttall’s knowledge about the use of potassium nitrate in explosives.
[53] On the same day, February 7, 2013, Sgt. Kalkat instructed the surveillance team not to approach any local shop employee to gather evidence of whether Mr. Nuttall had been trying to purchase potassium nitrate. It was his belief that confirmation of the advisory letter could wait and that if the police asked questions about Mr. Nuttall in the neighbourhood shops they might risk losing the opportunity to go undercover with their investigation. He made this decision despite Supt. Bond’s direction to pursue the advisory letter with due diligence.
[54] It was not until February 18, 2013, that the RCMP obtained footage from the surveillance cameras in a pharmacy located near Mr. Nuttall’s home that showed him attending the pharmacy on the date referred to in the advisory letter. However, the RCMP’s own surveillance of Mr. Nuttall indicated that he regularly attended this pharmacy to pick up prescriptions for his grandmother. The RCMP did not otherwise corroborate or seek to corroborate the information contained in the advisory letter. Indeed, no officer reviewed the video surveillance until late in the project despite the priority given to confirming or refuting the advisory letter by Supt. Bond. The surveillance camera footage from the pharmacy did not actually reveal any evidence that supported the RCMP’s investigation of Mr. Nuttall. Insp. Corcoran testified that he at no time queried Sgt. Kalkat about the outcome of the investigation into the CSIS advisory letter and he was never briefed on this matter by the command team.
[55] On February 16, 2013, the RCMP obtained a Dial Number Recorder (“DNR”) warrant and a production order for Mr. Nuttall’s cellular telephone and landline as far back as September 2012. The landline was registered in the name of Mr. Nuttall’s grandmother. The DNR revealed that Mr. Nuttall had contact with T.E. and one of two brothers, A.A. The surveillance officers also observed Mr. Nuttall associating with these two males. Neither of the men was ever associated with criminal activity, nor was any evidence gathered to suggest that Mr. Nuttall was actively engaged in any criminal activity with them. The telephone records disclosed no evidence of any criminal activity or any plans to commit crimes. Significantly, the DNR showed no telephone contact with nurseries or pharmacies where Mr. Nuttall might have attempted to purchase potassium nitrate.
[56] At no time did the RCMP monitor the defendants’ use of the Internet to determine if they were communicating with terrorists on social media. Sgt. Kalkat testified that a general warrant for this purpose might have alerted the defendants to the RCMP investigation because they appeared to be sharing the internet connection with a third party. However, no attempts were made to obtain a mirrored copy of the defendants’ hard drives during the project. In light of the control Officer A exercised over the defendants, it would have been quite simple to obtain custody of their laptops for this purpose. In any event, a post-arrest search of the defendants’ computers did not reveal any contact with terrorists or terrorist organizations on social media sites.
[57] Despite the lack of evidence that Mr. Nuttall and Ms. Korody were engaged in criminal activity or were planning crimes, on February 13, 2013, Supt. Corcoran approved an operational plan for what was to become Project Souvenir. The operational plan was authored by Sgt. Kalkat and approved by the undercover shop through the Support Services Division. Neither the original plan nor the application to extend the operation filed in May 2013 sought authorization to include undercover officers passing themselves off as part of a terrorist group.
[58] The objectives of the investigation at that time were described as follows:
i) The objective of this investigation is to gather credible and admissible evidence to determine whether or not individual(s) are engaged in providing or collecting property for certain activities, as defined in Section 83.02 of the Criminal Code.
ii) To determine John NUTTALL’s knowledge and involvement, if any, in any criminality in relation to national security interests and the endangerment of property or life.
[59] Further, the nature of the planned investigation was summarized in the February 13, 2013 operational plan as follows:
The Operational Plan is in furtherance of gathering new evidence to confirm or refute the attempt purchase of a chemical substance or other property, by NUTTALL, and/or others, to construct an explosive device to endanger life or property. The E INSET investigative team will utilize conventional and non conventional police techniques to further advance this investigation. The primary objective of this operational plan is to undertake a UCO with NUTTALL. Given the investigation this far, NUTTALL is believed to have radical Islamic beliefs. In order to advance this investigation and gather the best form of evidence, an undercover officer should be introduced to NUTTALL, to determine NUTTALL’s involvement, if any, in any criminality in relation to National Security interests. To introduce a UCO to bond with NUTTALL through a variety of planned UC scenarios to the point where NUTTALL is comfortable disclosing his involvement, if any, with criminality as it relates to this ongoing investigation.
[60] Although one of the investigative techniques proposed for the project was to infiltrate Mr. Nuttall’s friends to secure a confidential informant, Sgt. Kalkat testified that this did not occur because of the success of Officer A’s relationship with Mr. Nuttall and because he had such a small circle of friends that any such attempt might jeopardize the undercover aspect of the investigation.
[61] Supt. Bond contemplated ongoing surveillance during the undercover operation to identify “new associates, conspirators, pharmacies, nurseries, storage units or sheds, that the target may attend to store or purchase explosive precursors”. However, the police never interviewed any of the defendants’ associates or neighbours or investigated any of the shops that Mr. Nuttall frequented to determine whether he was looking for potassium nitrate.
[62] E-INSET began addressing the command team’s progress on Project Souvenir in their weekly briefings commencing in early February 2013. These meetings usually included the investigative team for the project and later included members of the undercover shop who were responsible for planning the scenarios once the project was operational.
[63] From the outset of the planning for Project Souvenir, it was apparent that the RCMP at the National Headquarters level considered the investigation to be urgent and a national priority. Senior officers at RCMP Headquarters E-INSET Division were regularly briefed on the progress of the investigation. In an email dated February 28, 2013 to Cpl. Matheson, Sgt. Kalkat underlined the priority to be given to Project Souvenir and the unusually active role the command team would have in formulating scenarios:
I am hopeful we will develop a scenario tomorrow and can drive this investigation forward, as the speed of the investigation has been hampered. I recognize our people, operators, cover, my team, have commitments, however, this is a priority investigation not only for E INSET but also for the National Security Program from Ottawa HQ. We are all dedicated and committed to bringing the investigation to a successful conclusion. We look forward to meeting tomorrow to actively participate and engage in the development of the next scenario.
[64] It was clearly out of the ordinary for the command team to exercise this level of control over the development and pace of scenarios by the undercover shop. As Project Souvenir progressed, the command team took extraordinary measures and assumed primary control over scenario development in place of the undercover shop.
[65] On February 21, 2013, E-INSET was granted approval for the operational plan by Supt. Slinn, RCMP National Headquarters, for the period up to May 22, 2013. The approval conditions included the designation of Cpl. Matheson as responsible for the safety and security of the undercover operators as well as the direction of the undercover portion of the operation. The approval also required the police to obtain permission under s. 25.1(8) of the Code prior to the commission of an offence in the course of the operation.
[66] At or about the time that Project Souvenir was approved by National Headquarters, Officer A was chosen as the primary undercover officer who would attempt to make contact with Mr. Nuttall with a view to establishing a relationship with him. Officer A was briefed in general terms with regard to the lifestyle surveillance of Mr. Nuttall and Ms. Korody; however, he was not made aware of specifics to safeguard his undercover role. While Sgt. Kalkat wanted someone who had already done national security undercover operations, Officer A did not have this kind of experience. The primary reason for selecting Officer A was the fact he was a Muslim.
[67] Right from the outset of Project Souvenir, there was conflict between the undercover shop and E-INSET in regard to the content and direction of the scenario objectives for the undercover operation. Sgt. Kalkat believed that the undercover shop was employing too many passive scenarios designed to build rapport with Mr. Nuttall and this raised concerns in his mind about the pace of the investigation. Sgt. Kalkat wanted the undercover shop to take a more aggressive approach with Mr. Nuttall in order to channel him away from the constant discussion of ideas and spur him into action. When the sergeant pressed for more input into the scenarios, the undercover shop asserted their authority over this aspect of the investigation.
[68] The first scenario involved Officer A attending at the local gas station that Mr. Nuttall frequented. This scenario occurred on February 23, 2013. In accordance with the usual practice, Cpl. Matheson drafted the scenario outline and objectives with input from the investigative team. During this scenario there was no more than eye contact between Officer A and Mr. Nuttall.
[69] After the first scenario, there was a hiatus in the undercover operation and Sgt. Kalkat complained to Cpl. Matheson that the operation was proceeding too slowly. He told the corporal that the investigation was a national priority due to the risk posed by Mr. Nuttall. When questioned why he believed there was a risk in light of the lack of recent evidence that Mr. Nuttall was expressing extremist beliefs, the sergeant testified that the DNR revealed that Mr. Nuttall’s cellular telephone usage and blog were associated with the registered name of “Muhammad Muhammad.” He also referred to Ms. Korody’s wearing of the hijab and her conversion to the Muslim faith. Apparently Sgt. Kalkat associated terrorism with adherence to the Islamic faith in general. Moreover, at this time only Mr. Nuttall was a target; there was no evidence at all about Ms. Korody’s activities beyond what the surveillance had indicated.
[70] Supt. Bond testified that contact with Mr. Nuttall was justified at this time because E-INSET had reasonable grounds to suspect that Mr. Nuttall might be engaged in criminal activity due to the July and October 2012 complaints and the unverified information he had received from CSIS along with the contents of the February 7, 2013 advisory letter.
[71] On March 1, 2013, the investigative team met with Cpl. Matheson and Officer A to discuss the next scenario. Although the minutes of the meeting clearly suggest that Sgt. Kalkat raised a concern about using religious literature to recruit Mr. Nuttall contrary to RCMP practice (he was responding to a suggestion by Cpl. Matheson that Officer A go door to door with religious literature), the sergeant denied that this was a concern discussed at the meeting. The minutes of the March 1, 2013 briefing specifically referred to a discussion of “sensitive sector issues”. Cpl. Matheson testified that one sensitive sector issue is religion; special permission from RCMP National Headquarters is necessary if the undercover shop wants an officer to act as a religious advisor to a target. Sgt. Kalkat testified that sensitive sector permission is only required when an operator seeks to attend a mosque with a target.
[72] The second scenario occurred on March 2, 2013. The scenario was to take place at the same local gas station. Officer A was to make contact with Mr. Nuttall to request his help finding Officer A’s niece. Officer A was to play the role of an Arab businessman whose niece had run away from home due to the family’s strict adherence to Muslim religious customs. This cover story was designed to appeal to Mr. Nuttall’s conservative beliefs about Muslim women, which were already known to the police. The police consistently observed Ms. Korody behaving in a subservient fashion with Mr. Nuttall and otherwise exhibiting the lifestyle of a conservative Muslim woman. To entice Mr. Nuttall into sharing his religious beliefs with Officer A, the police planted Islamic literature in Officer A’s vehicle to attract Mr. Nuttall’s attention.
[73] Officer A’s cover story was also designed to attract Mr. Nuttall’s interest in the Muslim faith and lead him to draw inferences about Officer A’s background. Officer A was to portray himself as having been born in the Middle East and a life-long Muslim who, by implication, was intimately familiar with the faith. From the outset of the undercover operation, Sgt. Kalkat pushed for Officer A to assert his superior knowledge of the Islamic faith during the scenarios with Mr. Nuttall and to use his knowledge of the religion as a means of controlling and directing Mr. Nuttall’s behaviour. Over the course of the operation, Officer A led Mr. Nuttall to believe that he had family in the Middle East and had to return there to deal with issues involving his family.
[74] During the scenario, Officer A showed Mr. Nuttall a photograph of his niece. Mr. Nuttall immediately said he would help Officer A find her. When he saw the Islamic literature in Officer A’s vehicle, Mr. Nuttall told him that he was a convert to the Muslim faith. The two then drove around Surrey together checking out locations where Mr. Nuttall said teenagers hung out and smoked.
[75] Mr. Nuttall was very open and unguarded with Officer A about his extremist views of the Islamic faith. He spoke about speeches he had read and was pleased when Officer A identified Bin Laden as their author. He demonstrated a naïve, child-like demeanour right from the start. Officer A cautioned Mr. Nuttall not to speak to strangers about such things but led him to believe that he shared Mr. Nuttall’s beliefs about violent jihad. Supt. Bond testified that Officer A directed Mr. Nuttall in this fashion to maintain his persona as someone involved in terrorist activities. The superintendent testified that to be successful, an undercover operator had to let the target infer things about his role in jihadist actions.
[76] Cpl. Matheson found it remarkable that immediately after meeting Officer A Mr. Nuttall simply poured out his most intimate beliefs about Islam. Supt. Bond testified that in his 34 years as an RCMP officer he had never seen a target demonstrate such an openness and enthusiasm with regard to his terrorist beliefs in such a short time. Mr. Nuttall demonstrated the same naïve openness with a stranger that he and Officer A met at the skytrain station during the next scenario.
[77] During the March 2 meeting, Mr. Nuttall exaggerated the police contact he had experienced due to his expression of jihadist views. He also exaggerated his computer skills by claiming he could hack into the Israeli government’s server. Mr. Nuttall told Officer A that he had a plan and all he needed was money. In response, Officer A said that the money problem could be solved and he would introduce Mr. Nuttall to like-minded brothers. Nothing more concrete was promised. Mr. Nuttall did not suggest that he had already committed terrorist acts or played a role in such activities. Nor did he articulate any steps that he had taken in regard to the plan or what the plan consisted of; however, he listed some of the items he required for the plan such as a plasma cutter. Due to Mr. Nuttall’s expression of extremist views, the project immediately turned from intelligence gathering to evidence gathering.
[78] A similar scenario followed on March 3, 2013. Mr. Nuttall continued to help Officer A look for his niece. In this encounter Officer A staged a job offer for Mr. Nuttall that was designed to lead him to believe that Officer A was involved in shady business activities and that he was part of a larger group. This was the start of the RCMP’s plan to convince Mr. Nuttall that Officer A was an important person in a large and sophisticated organization that was involved in financing and carrying out terrorist activities. Cpl. Matheson testified that he would call Officer A during the scenarios to play the role of other associates involved in the group to make it seem larger to Mr. Nuttall. Further, he testified that right from the start Mr. Nuttall bought into the cover story that Officer A was involved in nefarious activities and was associated with this large sophisticated group. Cpl. McLaughlin also agreed with this description of what Officer A led Mr. Nuttall to believe.
[79] Officer A permitted Mr. Nuttall to believe that he had been involved in jihadist actions before and it was apparent to Cpl. Matheson that Mr. Nuttall believed this was true based on Officer A’s statements. Later in the project Officer A told the defendants on more than one occasion that this “was not his first dance” when they talked about Mr. Nuttall’s jihadist ideas and the defendants asked for his advice. Later when Officer C was introduced to the defendants he described himself as a mujahideen, which means jihadist fighter or warrior.
[80] Although Sgt. Kalkat denied that Officer A was to represent himself as anything more than a like-minded individual with access to financial resources, other officers involved in the project confirmed that the underlying goal of the operation was to convince Mr. Nuttall that they were part of a large international terrorist group. Indeed, the credibility of Sgt. Kalkat’s evidence is clearly undermined by his email correspondence with Cpl. Matheson and the language he used during the briefing meetings. In particular, in these communications he referred to making Mr. Nuttall aware of the criminal nature of the organization, what it was about and its capabilities.
[81] Sgt. Kalkat also agreed that Officer A was instructed to use criminal tradecraft when he was with Mr. Nuttall to lead him to conclude that Officer A was part of the criminal element. Officer A was instructed to teach Mr. Nuttall criminal tradecraft to bolster his cover story. In every scenario Officer A would demonstrate a “cleaning regime” that involved taking a circuitous route to their destination to show Mr. Nuttall that he was cognizant that the police might be watching and to strengthen Mr. Nuttall’s belief that he was carrying on clandestine activities. The instructions given to Mr. Nuttall in connection with the staged jobs were also designed to lead him to believe that Officer A was engaged in shady business dealings. It is apparent that Mr. Nuttall learned many aspects of this tradecraft from Officer A; however, he was also astute enough to know not to download terrorist literature from the Internet using his own IP address.
[82] During the March 3rd scenario, Mr. Nuttall spoke about Qassam and Samus rockets used by Hamas to target Israel. Officer A agreed in cross-examination that Qassam rockets are homemade short-range rockets without guidance systems, and that Samus are long-range guided missiles. He further agreed that Mr. Nuttall believed they were the same thing and that he could make them in his garage. Mr. Nuttall explained to Officer A that he had a plan to build these rockets and shoot them over the Legislative buildings in Victoria with “Qassam” and “Samus” written on them to send a pro-Palestinian message. Mr. Nuttall wanted Officer A to buy him the tools that he needed to make the rockets. Officer A again told Mr. Nuttall that he should be careful about talking of these things to someone he did not know well.
[83] It is notable that during this meeting Mr. Nuttall told Officer A that his “big plan” was on his laptop; however, it became apparent later in the project that Mr. Nuttall did not commit to writing anything more than a list of items he might need for the “train plan” (a plan that the RCMP determined to be a failure). There is no evidence he had any plan on his computer in March 2013 and after the arrest on July 1st, a search warrant executed on his hard drive and Ms. Korody’s hard drive revealed no such plans.
[84] At the end of this scenario, Officer A gave Mr. Nuttall $100 because it became apparent that he had given away his last dollar to a street person who claimed to be from Palestine.
[85] The first staged job was carried out on March 4, 2013 when Officer A gave Mr. Nuttall $200 for transporting a package. At this meeting Mr. Nuttall confirmed that he knew Officer A was working with other people and he mistakenly came to believe that a security guard standing near the lockers where he picked up the package was part of Officer A’s group. Officer A permitted Mr. Nuttall to believe the security guard was part of his organization and responded in a way that cemented this belief.
[86] During the next scenario on March 7, 2013, Mr. Nuttall told Officer A that he had left his laptop in the vehicle to test Officer A to see if he was a police officer. Mr. Nuttall made statements to the effect that there was enough information on the computer to send him to jail. It is clear that Mr. Nuttall could not have been referring to any plan for jihad. In response, Officer A praised Mr. Nuttall for being more cautious about his jihadist plans than when they first met.
[87] On March 6, 2013, C/Supt. Tremblay contacted Supt. Bond to inquire whether Mr. Nuttall’s name should appear on the No-Fly List. Supt. Bond testified this idea went no further. He knew that Mr. Nuttall had no driver’s licence and largely restricted himself to a four-block radius surrounding his home. The police were also aware that he had no passport.
[88] The scenarios on March 7 and 8, 2013 also involved Mr. Nuttall doing staged jobs for Officer A. The jobs were all to be carried out in a clandestine manner and Mr. Nuttall was never told what he was dropping off or picking up. Again, during these scenarios Officer A performed the cleaning regime when he picked up Mr. Nuttall to further his belief that he was engaged in nefarious activities. Cpl. Matheson would call Officer A and confirm he was “clean” as a means of showing Mr. Nuttall that the group had security and, inferentially, that Officer A was an important member of the organization.
[89] As described earlier, the jobs were designed to further Mr. Nuttall’s belief that Officer A was part of a large sophisticated quasi-criminal organization that had access to human and substantial financial resources to finance jihad. Officer A’s initial cover as an Arab businessman, who was sympathetic to jihadist philosophies, ultimately developed into one that focused entirely on convincing Mr. Nuttall and Ms. Korody that he was a major player in a large international terrorist organization with access to money, weapons, experts in clandestine operations, and explosives. The money paid to Mr. Nuttall for carrying out this clandestine work, as well as the hotel stays, the food, “safe” cellular telephones, bus passes and other purchases were all intended to further this cover story and cement the relationship with Officer A. Mr. Nuttall was also brought further into the “group” by a subsequent “loyalty talk” that was designed to strengthen the trust relationship with Officer A and effectively isolate him from outsiders; the message being, “don’t trust anyone else and don’t talk to anyone about us”.
[90] Another purpose behind the jobs was to determine whether Mr. Nuttall could or would carry out Officer A’s instructions. The police wanted to test a number of things: (1) Mr. Nuttall’s intellectual capacities; (2) his trust of and loyalty to Officer A; and (3) his propensity to become involved in criminal activity. Mr. Nuttall did not appear to have any difficulty carrying out the instructions given for the staged jobs.
[91] At the end of the job scenarios it was quite apparent to the undercover shop that Mr. Nuttall trusted Officer A implicitly and was 100% loyal to him. Although Sgt. Kalkat testified that he did not share these sentiments, there was no evidence to support his doubts about Mr. Nuttall’s blind allegiance to Officer A as of early April 2013. Cpl. McLaughlin testified that what the police learned after the March job scenarios was that Mr. Nuttall was willing and anxious to please Officer A and he did not deviate from Officer A’s instructions.
[92] Mr. Nuttall received $100 for the job on March 7th and 8th as well as some Afghan food. On March 8th, Officer A purchased Mr. Nuttall a cellular telephone that he was told was strictly for communicating with Officer A. In light of Mr. Nuttall’s comments to Officer A at the end of the “flash roll” scenario (in which Officer A gave $20,000 to another undercover officer to count without stating the purpose for the exchange), it was apparent to the police that he believed there was drug dealing going on and that Officer A’s associates were part of the mafia. Later on the police learned that during private conversations between Mr. Nuttall and Ms. Korody, Mr. Nuttall expressed a firm belief that Officer A was a member of Al Qaeda. None of the undercover officers attempted to dissuade Mr. Nuttall from this belief. Cpl. McLaughlin testified that as of this scenario the investigative team expected that Mr. Nuttall would conclude Officer A was a “big deal” in a terrorist cell.
[93] Officer A advised Mr. Nuttall during the March 7, 2013 scenario that he was going away for two weeks and he did not want Mr. Nuttall experimenting with explosives. Mr. Nuttall had referred to a past experiment with fertilizer explosives (which he later contradicted) and Officer A wanted to ensure the public was safe while he was away. Mr. Nuttall promised he would do nothing without telling Officer A first and there is no evidence that Mr. Nuttall failed to comply with this instruction. It was also during the March 7, 2013 scenario that Mr. Nuttall expressed some doubts about Officer A’s intentions and Officer A handled the issue by advising Mr. Nuttall that they could go their separate ways if he did not trust him. In response, Mr. Nuttall said that he and Officer A were “partners for life”. Although Supt. Bond testified that he was surprised that Mr. Nuttall had so quickly come to the conclusion that Officer A was not a moderate Muslim, he had no concerns about Mr. Nuttall’s rapidly growing attachment to Officer A.
[94] During the early scenarios in March, Mr. Nuttall told Officer A that Ms. Korody had expressed a desire to kill Jewish children. Although Officer A talked Mr. Nuttall out of any such plan, and it was never raised again, this reference to Ms. Korody’s intentions led to discussions during the briefings about involving her in the scenarios. A plan that continued to resurface was bringing in a female undercover operator to engage Ms. Korody due to her religious beliefs about contact with men apart from her husband. A female operator was not brought into the scenarios but Officer A was directed to orchestrate Ms. Korody’s involvement by pressuring and manipulating Mr. Nuttall to that end. At no time during the undercover operation did Ms. Korody confirm that she had ever expressed a desire to kill Jewish children.
[95] Because Officer A was unavailable for scenarios between March 9 and 25, 2013, Sgt. Kalkat insisted that Officer A have a “loyalty talk” with Mr. Nuttall prior to the “flash roll” scenario. By instilling loyalty in the target in relation to the undercover officer, there is more control over the target’s actions even when the undercover operator is not around. The loyalty talk was also intended to dissuade Mr. Nuttall from attempting to steal the money he saw being counted in the hotel room. Mr. Nuttall did not attempt to steal the cash.
[96] CSIS was also concerned about what Mr. Nuttall might do while Officer A was away and, when Supt. Bond advised that the RCMP could not provide surveillance, CSIS agreed to do so for the following two weeks. Supt. Bond cautioned CSIS that because Officer A had instructed Mr. Nuttall to be on the lookout for people following him, their surveillance officers should be more careful.
[97] While Officer A was away, the police became concerned about the risk that Mr. Nuttall might act on his jihadist beliefs independently. There was considerable disagreement as to what would be necessary to ensure Mr. Nuttall’s relationship with Officer A did not falter during this hiatus in the operation. Sgt. Kalkat wanted to move Mr. Nuttall and Ms. Korody out of the province and have them carry out some type of package movement. Although Sgt. Kalkat testified that the impetus for sending Mr. Nuttall out of town was information from CSIS that he was attempting to purchase something (which the sergeant assumed was a firearm), it is apparent from the briefing minutes that this issue did not surface until long after these discussions. The sergeant’s plan to send Mr. Nuttall outside of the province was discussed on or before March 11, 2013, while the CSIS tip was brought to the RCMP’s attention on or about March 20, 2013.
[98] In any event, Cpl. Matheson believed that taking the defendants out of town was not advisable or necessary to maintain control over Mr. Nuttall. He believed that Mr. Nuttall would not do anything without checking with Officer A and that at most a few text messages would be sufficient to maintain their relationship. While there may have been brief moments of distrust, Mr. Nuttall kept coming back to Officer A immediately with assertions of complete trust in him. In Cpl. Matheson’s view, Officer A exercised control over Mr. Nuttall through their relationship and the police, in turn, were able to manipulate that relationship.
[99] Sgt. Kalkat went over Cpl. Matheson’s head and attempted to persuade superior officers in the undercover shop (Officer B and Cpl. Mansoor) to go along with his views. He believed that Mr. Nuttall would feel abandoned by Officer A and act out on his own. In a meeting with Officer B, Sgt. Kalkat complained about Cpl. Matheson’s handling of the operation and his inexperience. Sgt. Kalkat did not believe that the undercover shop shared the same urgency he felt about the operation. There was always a tension between Sgt. Kalkat and Cpl. Matheson in regard to the amount of contact between Officer A and Mr. Nuttall. While the sergeant wanted to increase contact and cement the control exercised by Officer A over Mr. Nuttall, Cpl. Matheson preferred fewer contacts to avoid undue influence over the target. Both Cpl. Matheson and Sgt. Kalkat agreed that by controlling Mr. Nuttall, they anticipated he would control Ms. Korody due to his conservative beliefs about the subservient position of Muslim women.
[100] Sgt. Kalkat testified that Cpl. Matheson did not understand the “big picture” because he was not privy to information about Mr. Nuttall from other agencies. However, the only other agency that was providing information to the RCMP about Mr. Nuttall was CSIS. Apart from the advisory letter and the information on March 20, 2013, that Mr. Nuttall was attempting to purchase something, CSIS provided no further intelligence to the RCMP.
[101] Ultimately the undercover shop rejected the sergeant’s plan to send Mr. Nuttall out of town as unnecessary. In response, Sgt. Kalkat shut down the operation and prohibited any contact with Mr. Nuttall. To ensure public safety, Special “O” was engaged to carry out surveillance of Mr. Nuttall and Ms. Korody. Nothing occurred while Officer A was away that in any way posed a danger to the public.
[102] During this shut down period, Sgt. Kalkat and Supt. Bond met with Insp. Arnold and S/Sgt. Mann, the senior officers in charge of the undercover shop, to convince them to replace Cpl. Matheson with someone who had more experience. However, Insp. Arnold and S/Sgt. Mann believed that Cpl. Matheson was capable and properly handling the operation.
[103] Supt. Bond agreed with Sgt. Kalkat’s assessment of Cpl. Matheson’s lack of experience. He felt that national security investigation experience was mandatory for the success of Project Souvenir and Cpl. Matheson lacked this experience. He believed that at this time in the project there was considerable conflict between the command team and the undercover shop about the direction of the investigation, its speed and the objectives of the scenarios. He also agreed with Sgt. Kalkat that the undercover shop’s desire to introduce a female operator to the defendants was ill-advised and showed a lack of understanding of national security investigations.
[104] The operation resumed on or about March 13, 2013 and Cpl. Matheson organized some text and telephone contact from Officer A while he was away. Through this telephone contact, it became apparent that Mr. Nuttall was emotionally bonded to Officer A and was extremely worried about Officer A during his absence. Mr. Nuttall told Officer A that he felt abandoned since he had gone away and that he only trusted Officer A and no one else.
[105] It is apparent that from this time onward the defendants intentionally isolated themselves from others in preference to spending time with Officer A. In the later scenarios Officer A perpetuated this social isolation by discouraging Mr. Nuttall and Ms. Korody from having contact with other friends and family members. In addition, it was at this time that Mr. Nuttall’s grandmother moved out of the basement suite thereby isolating them further from family members.
[106] During Officer A’s absence, the undercover shop voiced a concern that Officer A had overly excited Mr. Nuttall about doing jihadist acts and was giving him the capacity to carry out terrorist acts for which he lacked the resources and contacts. Cpl. Matheson testified that he raised the issue of entrapment with the investigative team in mid-March 2013 for two reasons. First, he believed that by paying Mr. Nuttall for jobs, the police might be committing the offence of facilitating a terrorist act. Second, it was apparent that Mr. Nuttall did not have the financial resources to carry out any of his jihadist ideas, and thus by giving him money the police were making him into someone who was capable of carrying out a terrorist act.
[107] It is also apparent that the investigative team was concerned about entrapment by mid-March 2013. Sgt. Kalkat made detailed notes about the law of entrapment in his notebook and he raised this topic at the March 18, 2013 briefing. It is noteworthy that although Sgt. Kalkat copied passages from Mack into his notebook, he also incorporated quotes from American authorities that focused on predisposition as a determining factor in entrapment cases, a proposition explicitly rejected in Mack.
[108] Cpl. McLaughlin testified that the team’s discussions on entrapment centred on designing scenarios that did not give Mr. Nuttall everything he needed to commit a terrorist act or design a plan for him, and did not make him capable of doing something that he could not do for himself. As discussed below, the police did not respect these limitations.
[109] Notwithstanding an awareness of these issues, it was Sgt. Kalkat’s desire to see the undercover shop “amp up” the scenarios to flush out Mr. Nuttall’s plan for jihad and to increase contact with the operator to one or two meetings per week upon Officer A’s return. Instead of passive scenarios that permitted Mr. Nuttall to talk on and on about his terrorist ideas, Sgt. Kalkat wanted Officer A to take control of the conversation and focus Mr. Nuttall on his plan. Was it all talk or was he prepared to actually do something?
[110] Because Cpl. McLaughlin was the primary contact between the command team and the undercover shop, and in particular, Cpl. Matheson, he passed on Sgt. Kalkat’s directions regarding the scenario objectives. Cpl. McLaughlin testified that what he passed on to Cpl. Matheson were Sgt. Kalkat’s instructions, not necessarily his personal views of the situation.
[111] Although it is apparent that Mr. Nuttall had a variety of ideas that ranged in complexity and feasibility, he was not focused on any one idea and had taken no steps in furtherance of any idea. Nevertheless, what Mr. Nuttall talked about doing was a concern to the investigative team and they wanted to know if he was serious about carrying out one of these ideas.
[112] For the most part Mr. Nuttall’s ideas were grandiose and fanciful. Even if he could focus on one of them, they all required long-term planning and investment. The grandiose schemes included hijacking a nuclear submarine and taking the world hostage (this was fanciful according to Supt. Bond); storming the Esquimalt military base with AK-47s and teams of mujahideen; and building Qassam rockets to shoot towards the Parliament buildings in Victoria. However, some of his ideas were more immediate.
[113] For instance, during a telephone call on March 20, 2013, Mr. Nuttall told Officer A that they had missed out on something big during Officer A’s absence. On March 22, 2013, Mr. Nuttall sent a text to Officer A about the fantastic opportunity they were missing and urged him to come back soon. When Officer A telephoned Mr. Nuttall to find out about the “fantastic opportunity”, Mr. Nuttall said that some 250 soldiers had recently returned from Afghanistan and they could have been there [with a gun] to give them a real welcome home. In the same call Mr. Nuttall expressed feeling abandoned and said he was going to find some money and get on a plane and meet up with Officer A.
[114] Even though Mr. Nuttall raised this missed opportunity again in later scenarios, he never took any steps to carry out this idea either at the time or later during the operation. Nor did he outline any of the steps he would have taken to carry out such an idea. Mr. Nuttall’s “plan” proved to be no more than the idle talk he engaged in when discussing the rocket plan or the plan to take over a nuclear submarine. Indeed, it is significant that Mr. Nuttall believed that he had to sit idle in the face of such a perfect opportunity because Officer A was not there to assist him.
[115] Sgt. Kalkat testified that a peace bond was considered as a possible response to Mr. Nuttall’s threats; however, because he was convicted of a breach of an undertaking 11 years earlier in 2002, the sergeant did not believe Mr. Nuttall would comply with a peace bond. Sgt. Kalkat made no note of any consideration of a peace bond at this time or at any other time during the project. Nor is there evidence that he sought the views of other officers or sought legal advice in regard to a peace bond. Supt. Bond testified that the investigative team did not consider a peace bond at any time during the project. He also believed a peace bond would not have been appropriate in the circumstances.
[116] At a briefing on March 18, 2013, the investigative team discussed the balance between securing evidence to meet the elements of an offence and committing acts that would constitute entrapment. The team was already talking about possible charges against Mr. Nuttall, including facilitating a terrorist activity and conspiracy to commit a terrorist activity. Sgt. Kalkat believed that they were 15 to 20 scenarios away from the testing scenario, which was a reference to gauging the defendants’ commitment to a plan.
[117] On the morning of March 20, 2013, CSIS advised Supt. Bond that they believed Mr. Nuttall might attempt to procure a weapon on that day. He arranged for RCMP surveillance on Mr. Nuttall in response to this tip. Subsequently, CSIS confirmed they would also have “eyes and ears” on Mr. Nuttall. Supt. Bond advised Sgt. Kalkat that CSIS believed Mr. Nuttall might be trying to purchase something that day but he did not specify what it was.
[118] At briefings on March 20 and 21, 2013, the investigative team discussed the information received from CSIS. Sgt. Kalkat testified that he assumed Mr. Nuttall was trying to buy a firearm. Again, he wanted the undercover shop to get Mr. Nuttall out of B.C. at this time so he would not be able to purchase a firearm. Officer B did not believe this was necessary. Ultimately, there was never any confirmation of this tip despite additional surveillance of Mr. Nuttall by the RCMP and by CSIS. Cpl. McLaughlin testified that this tip from CSIS was never followed up in any of the subsequent scenarios.
[119] On the issue of a firearm, Mr. Nuttall expressed to Officer A a sincere desire to have a gun throughout the undercover operation. Officer A appeared to put the issue off and actively discouraged Mr. Nuttall from having a firearm in his possession when they were together. However, he clearly left the impression with Mr. Nuttall that he had access to firearms and could obtain them. There is no evidence that Mr. Nuttall ever attempted to buy a firearm himself, even though he told Officer A that his Fijian friend (A.A.) had access to firearms that were for sale. Sgt. Kalkat also testified that it is easy to obtain a firearm in the Lower Mainland. Thus, it is apparent that had Mr. Nuttall truly wanted a gun, he would likely have secured one or at least made an attempt to do so.
[120] It was on or about March 21, 2013, that Sgt. Kalkat obtained permission from the Ontario E-INSET branch for regular contact with Cst. Mokdad to receive advice on the Islamic faith and Islamic extremist activities. It was Sgt. Kalkat’s intention to pass on this research to Officer A to use during scenarios with Mr. Nuttall to make him more credible as a jihadist, and he did so on more than one occasion. He also asked Cst. Mokdad to contact Officer A directly to give him advice. Subsequently, the three officers had a telephone conference together. Although Sgt. Kalkat believed that Cst. Mokdad spoke to Officer A on other occasions, Cst. Mokdad denied that he did this. Officer A had known Cst. Mokdad for some time before the operation began and he had only a vague recollection of speaking to him during the project.
[121] Cst. Mokdad has done extensive research into jihadist terrorist groups and in the past has been attached to E-INSET teams to advise them on the construction of realistic scenarios where undercover officers role play as jihadists. He has been accepted as an expert on this subject by courts in Canada. Cst. Mokdad is not an expert in the Islamic faith but he is a practising Muslim.
[122] On March 21, 2013, Cst. Mokdad gave Sgt. Kalkat a verse from the Quran that Officer A could quote during discussions with Mr. Nuttall. The sergeant specifically wanted verses that mention jihad, and Chapter II, Verse 216 which was the verse Cst. Mokdad provided, refers to this concept. Cst. Mokdad testified that some people interpret this verse as referring to an internal struggle and that it is not as graphically violent as other verses. However, he cautioned that he cannot interpret or translate the Quran. Later in April 2013, Cst. Mokdad sent additional verses to Sgt. Kalkat. These verses talked about the sin of killing innocents. These verses were sent along with the names of historical battles in Afghanistan.
[123] Sgt. Kalkat sent an email to Cpl. Matheson on March 22, 2013, suggesting that Officer A refer to Chapter II, Verse 216 in a text to Mr. Nuttall, as a means of responding to his feelings of abandonment and the missed opportunity. More specifically, Sgt. Kalkat suggested the following be said to Mr. Nuttall in a telephone call:
“Brother, opportunities come and go, it’s not you or me that controls our destiny, it is Allah. If we missed an opportunity, there is a reason why we missed this opportunity, Allah didn’t want it to happen, and Allah must have a good reason; Allah will guide us and Allah will reward us with another opportunity. All I ask is for you to be steadfast in your faith. I will explain further when I come back on Tuesday and we can talk face to face.” [Emphasis added.]
[124] Cst. Mokdad testified that he did not provide these phrases to Sgt. Kalkat and cautioned that Chapter II, Verse 216 is not about destiny, Allah’s will or a person’s will. He provided the sergeant with a simple phrase, “If we do not meet, it’s not meant to be.” However, he did not incorporate Allah’s will into the message. In addition, Cst. Mokdad testified that he would not have paraphrased the Quran as it must be quoted precisely.
[125] Cst. Mokdad knew nothing of the investigation into the defendants’ actions. Sgt. Kalkat advised him that the target’s motivation appeared to be anger that Canada refused to recognize Palestine as a state; however, this is the only information he had. This was unusual for Cst. Mokdad who testified that when he is called in to advise on an undercover operation, he works directly with the cover person and the undercover officers from the start of the project.
[126] Although Officer A did not use the references suggested by Sgt. Kalkat in the messages he sent to Mr. Nuttall during his absence in March 2013, he used very similar language later on in the operation when Mr. Nuttall sought spiritual guidance about going through with the plan to explode the pressure cooker devices.
[127] Cpl. Matheson’s plan to address Mr. Nuttall’s feelings of abandonment and the lost opportunity was to have Officer A return early and meet with Mr. Nuttall to talk him down and prevent him from getting on a plane and attempting to locate Officer A. Sgt. Kalkat rejected this plan because it would put Mr. Nuttall in control of the operator when the intention was for Officer A to be in control of the target for a variety of reasons.
[128] It was also on or about March 21, 2013 that the investigative team learned that Mr. Nuttall’s grandmother had moved out of their basement suite and had taken the telephone landline with her. This caused the defendants to be further isolated from people outside of Officer A’s group and was one reason for the decision to provide Mr. Nuttall with a cellular telephone. Cpl. Matheson testified that by this point in the project, Mr. Nuttall was quite vulnerable because he was so dependent upon Officer A for companionship. When Officer A was away Mr. Nuttall felt abandoned because he had few friends and, as time went on, Mr. Nuttall isolated himself further from any outside influences.
[129] When the grandmother took the landline it ended the DNR on the line; however, apart from contact with T.E.’s telephone number and a number associated with A.A., there were no communications of interest to the RCMP ever recorded. The police subsequently obtained records for the cellular telephones that Officer A provided to Mr. Nuttall and no communications of interest were revealed by these records apart from additional telephone contact with T.E. and A.A.
[130] The investigative team considered T.E. a person of interest during the early months of the undercover operation because Mr. Nuttall claimed T.E. was a fellow jihadist and he said they had talked about such plans extensively. When Mr. Nuttall claimed that T.E. had left the country to join a terrorist group in the Sudan or Somalia, the police investigated and found out that T.E. had not left Canada in the previous 30 days. In addition, there was a record of police contact with T.E. in April 2013 at a time when T.E. was alleged to have left the country. Ultimately there was never any direct evidence that T.E. was willing to participate in any of Mr. Nuttall’s ideas and T.E. disappeared from Mr. Nuttall’s life in early April 2013.
[131] A.A. became Mr. Nuttall’s roommate and for a time he was also a person of interest; however, there was never any direct evidence that he was a willing participant in any of Mr. Nuttall’s plans and Mr. Nuttall later confirmed that he was not going to be involved. Ms. Korody told Officer A that A.A. knew nothing of their jihadist plans.
[132] On March 26, 2013, additional E-INSET officers, including Supt. Bond, attended a briefing along with several members of the undercover shop because of the ongoing dispute about the direction of Project Souvenir. At this meeting Cpl. McLaughlin expressed the command team’s concern that they needed to have more input into the scenarios, including the overall objectives, themes and timelines. Officer A’s absence raised serious concerns about Mr. Nuttall’s emotional stability and the ability of the RCMP to control his actions using the vehicle of an undercover operation. The command team continued to press the undercover shop regarding more tests of Mr. Nuttall’s commitment to carrying out terrorist acts and his commitment to the relationship with Officer A. Sgt. Kalkat referred to his own internet research about terrorism and the Quran and shared his desire that Officer A use this information to make the scenarios more realistic; that is, to make Mr. Nuttall believe that Officer A was in fact a member of an international organization that supported violent jihadist acts because he knew the Quran and had in-depth knowledge of other jihadist groups, their beliefs and their leaders. Cpl. Matheson believed that Mr. Nuttall already trusted Officer A and did not require further convincing about his antecedents.
[133] At this meeting, Cpl. Matheson expressed the belief that Officer A had gone far enough in terms of pushing Mr. Nuttall to disclose his thoughts about jihad and any more urging might constitute incitement to commit crimes. Cpl. Matheson testified that from the outset Mr. Nuttall had expressed his desire to carry out violent jihad ostensibly because he believed Officer A was a like-minded individual. As a consequence, it was his view that the police should not be saying or doing things to encourage Mr. Nuttall and make him more “jihadist” than he already was. Instead, he believed the police should be discouraging Mr. Nuttall from acting out his beliefs by portraying Officer A as normal and calm as possible. Of course, by promising to help Mr. Nuttall carry out a jihadist plan, the RCMP was inciting him to move forward with his ideas about jihad.
[134] Further, while the command team was encouraged by Mr. Nuttall’s propensity to talk openly about his plans to do jihad (most prominently his plan to build Qassam rockets that sent a message about freeing Palestine), Supt. Bond was concerned about whether Mr. Nuttall had the ability and “know how” to follow through with any of his ideas. Sgt. Kalkat believed that Mr. Nuttall lacked the contacts and the resources to accomplish any of his ideas at this early stage in the operation.
[135] In regard to the rocket plan, Sgt. Kalkat testified that he specifically instructed the undercover shop and the investigative team that the RCMP would never proceed with Mr. Nuttall’s plan because there were too many unknowns and risks to the public. Further, it would require too much support and resources from the police and the undercover operation could not be sustained long enough to accomplish this plan. He later instructed the undercover officers to actively discourage Mr. Nuttall from carrying out this plan by telling him it was not feasible or viable and to refer to the pressure cooker plan as a doable and feasible plan.
[136] The duration of the operation was always a conundrum for Sgt. Kalkat. On the one hand, he knew that the operation could not go on for months because of potential public safety risks and thus there was pressure to get it completed as soon as possible. The project was also a national priority for the RCMP and from the outset of the operation Sgt. Kalkat had emphasized this fact. On the other hand, Mr. Nuttall was not coming up with a plan and was slow to engage in any meaningful process towards accomplishing a plan. To Sgt. Kalkat, that meant the operation had to continue in spite of the concerns raised by the undercover shop about undue influence.
[137] On or about March 21, 2013, Sgt. Kalkat began obtaining legal advice from Ms. Devlin, Q.C. who at the time worked with the Federal Prosecution Service. It is part of the RCMP’s Major Case Management system that Crown counsel is designated to give legal advice to the investigative team on its files. Apart from advice regarding the wiretap Part VI application and the one-party consent (“OPC”) application, Ms. Devlin, Q.C. also advised Sgt. Kalkat with respect to the operation more generally. The sergeant shared with Ms. Devin, Q.C. a concern that the undercover shop did not understand investigations in the “national security world” and was overly concerned with entrapment.
[138] At times during the project, Sgt. Kalkat sought legal advice from Ms. Devlin, Q.C. with regard to the scenario objectives and the methods used to gather evidence against the defendants. Due to the concern of the undercover shop in regard to the elements of the terrorist offences under consideration, the sergeant also sought legal advice on that matter. He generally followed Ms. Devlin’s legal advice; however, he sometimes disagreed with her assessment of the capabilities exhibited by the defendants.
[139] By March 27, 2013, the flurry of activity over Mr. Nuttall’s purported efforts to purchase a firearm had passed by without any evidence to support the CSIS tip. Supt. Bond advised CSIS that Mr. Nuttall did not pose “an imminent threat of acting out violently” and, further, that the RCMP would not be providing surveillance for the following week. On March 28, 2013, CSIS expressed difficulties with the RCMP’s decision not to provide surveillance but gave no reasons. Supt. Bond subsequently advised CSIS that they would not be providing surveillance based on Sgt. Kalkat’s assessment that Mr. Nuttall posed no imminent threat to the public. CSIS advised that they would be doing surveillance on Mr. Nuttall and would advise the RCMP if something came up. The RCMP received no information that the CSIS surveillance had observed anything of interest.
[140] On April 3, 2013, Officer A renewed in-person contact with Mr. Nuttall for the first time since March 8, 2013. Mr. Nuttall gave Officer A gifts and Officer A gave him religious presents from Morocco. Officer A also gave Mr. Nuttall a $100 prepaid phone card. Sgt. Kalkat agreed that these gifts and the back story about the trip to Morocco were designed to bolster Officer A’s image as an observant Muslim with connections to the Middle East. In their first meeting after the lengthy absence, Mr. Nuttall told Officer A that because of his instruction not to carry his marble gun due to the potential for drawing “heat” he no longer carried this gun on his person when he left his residence. The marble gun was a modified paintball gun. During this meeting Mr. Nuttall also told Officer A that his friend T.E. had gotten tired of waiting for him to do jihad, as opposed to just talking about it, and had gone to Somalia.
[141] In addition, Mr. Nuttall again talked about the missed opportunity of the returning soldiers and said that he had been thinking about a plan to storm the ships at the Esquimalt naval base and capture a nuclear submarine stationed at Nanoose Bay so that he could “hold the whole world hostage”. Mr. Nuttall told Officer A that while he had a Fijian friend (A.A.) who knew someone who could get him a handgun, he had not pursued this opportunity because Officer A told him to wait for his return. Mr. Nuttall then asked Officer A to get him AK-47s and rocket propelled grenades; he said he expected Officer A could get these weapons through his contacts or he could finance this part of the operation. The RCMP never verified A.A. as a viable source for weapons.
[142] Officer A told Mr. Nuttall that he liked his ideas and that he would help him with his plans, but Mr. Nuttall had to be patient. It became apparent at this meeting that Mr. Nuttall believed Officer A had real combat experience and would be able to provide him and Ms. Korody with weapons training. When questioned why he required weapons training, Mr. Nuttall said that he had only practised with paintball guns and he and Ms. Korody had never used real guns like Officer A.
[143] It was also during the April 3 meeting that Mr. Nuttall mentioned P.R. for the first time. He believed that P.R. was an ex-US soldier who bragged about killing Muslims in Afghanistan. (The police subsequently learned that P.R. was not an ex-US soldier.) In a later scenario, Mr. Nuttall said he had recently gone to P.R.’s citizenship ceremony; however, the police confirmed that P.R. became a Canadian citizen in 2007. Mr. Nuttall said P.R. would be an easy target to shoot because he was now a drug addict. Although Mr. Nuttall talked about the prospect of killing P.R. during later scenarios, he took no steps towards accomplishing this desire. The RCMP sought legal advice from the Crown regarding a charge of attempt murder; however, a charge of this nature did not go beyond the contemplation stage.
[144] When the RCMP later confirmed that P.R. was not an ex-US soldier, they queried whether Mr. Nuttall had made him up entirely as late as April 18, 2013. After confirming some facts about P.R.’s identity, the RCMP discussed whether they had a duty to warn him about Mr. Nuttall’s statements but decided against doing so. The command team and the undercover shop concluded that Officer A exercised sufficient control over Mr. Nuttall and thus it was not necessary to warn P.R. about a possible attempt on his life. There was never any evidence that Mr. Nuttall went any further than talk about killing P.R. when he was with Officer A.
[145] At the briefing on April 4, 2013, Sgt. Kalkat talked about the need to focus Mr. Nuttall on jihad and specific tasks related to his plans in order to gather evidence. The difficulty was that Mr. Nuttall had many ideas about doing violent jihad but would never settle on one specific objective. Sgt. Kalkat was alive to the need for Mr. Nuttall to take active steps himself instead of Officer A doing things for him. The sergeant expected to see Mr. Nuttall articulating a plan in an organized way and sticking to it. Some of the investigative team members expressed the view that it would be better to slow down Mr. Nuttall’s thinking about jihad to focus him on something concrete. Sgt. Kalkat remained concerned that Mr. Nuttall was controlling the direction and pace of the undercover operation. He wanted Officer A to take a more aggressive stance on Islamic ideology with Mr. Nuttall as a means of focusing him on a plan. While the sergeant testified that he also wanted to slow down the operation to make it easier to prepare the materials for the OPC application, I find this evidence is inconsistent with his criticism of the undercover shop’s “passive” approach to Mr. Nuttall and his desire to see Officer A being more assertive with the target.
[146] Mr. Nuttall continued to telephone Officer A after their meeting on April 3rd; and from these calls it became apparent that he was obsessed with Officer A. Mr. Nuttall said that he thought about Officer A every minute of every day and prayed for him continually. Mr. Nuttall promised Officer A that he and Ms. Korody would do anything that was asked of them. In response, Officer A told Mr. Nuttall to be patient because during his absences he was readying things his way and that Mr. Nuttall had to understand the way Officer A did things. Officer A counselled Mr. Nuttall about using more tradecraft and told him not to talk about jihad over the telephone.
[147] On April 7, 2013 during a telephone call, Mr. Nuttall asked Officer A whether according to the Islamic faith pubic hair had to be shaved or plucked. The shaving of all body hair is part of the cleansing regime before a mujahideen engages in jihad. When Supt. Bond learned of this exchange, it concerned him that Mr. Nuttall was seeking religious guidance from their operator. He testified that this would not be appropriate as part of an RCMP investigation. However, Supt. Bond did not otherwise become aware of the extent to which Officer A would come to provide religious guidance to Mr. Nuttall and Ms. Korody.
[148] At the April 9, 2013 briefing, Sgt. Kalkat urged the creation of scenarios that would lead to evidence of criminal offences and counselled the undercover shop that Officer A had to be more firm with Mr. Nuttall and exercise more control over his actions. Sgt. Kalkat wanted to identify a “D Day” or arrest day for Project Souvenir. He envisaged providing the defendants with a safe house to construct their device, using a cargo van with no windows and having the defendants make a last statement video to prove mens rea. There was also a discussion of a “recce” (or reconnaissance mission) in Victoria at this meeting. As will be discussed below, even at these early stages – and before Mr. Nuttall’s ideas about doing violent jihad had become focused on any particular idea or in any sense planned – the RCMP had pre-determined what would occur at the end of June 2013. It was a key element of Sgt. Kalkat’s vision of Project Souvenir that Mr. Nuttall and Ms. Korody would present Officer A with their plan even though up to this point there had been little direct contact with Ms. Korody.
[149] Consistent with his views that the undercover operator had to be more aggressive with Mr. Nuttall and assert control over his actions, Sgt. Kalkat wanted to create a scenario in which Officer A gave him money to purchase a firearm. He dropped this plan when Ms. Devlin, Q.C. provided a legal opinion counselling against doing this. Mr. Nuttall’s reference to A.A. possibly having access to a firearm was also an impetus for such a scenario; however, there was never any evidence that Mr. Nuttall had attempted to buy a firearm on his own from any source.
[150] The issue of a tracking warrant also came up at the April 9th briefing. The undercover shop wanted a tracking warrant so that a monitoring device could be attached to Mr. Nuttall’s cellular telephone; however, the investigative team believed that a tracking warrant could end the operation if Mr. Nuttall found the device. Sgt. Kalkat believed their surveillance and the pole cameras at the basement suite were sufficient for public safety.
[151] The importance Sgt. Kalkat placed on public safety did not lead to a decision to obtain a search warrant for the defendants’ computers during the project. He was too concerned about jeopardizing the undercover aspect of the investigation to risk going into their basement suite to secure the hard drives and no thought was given to developing a scenario that would lead to the acquisition of the defendants’ laptops for a short time. The sergeant appeared to be quite satisfied with the level of supervision E-INSET had on the defendants’ actions and whereabouts. Later in May 2013, A/Commr. Rideout discussed with Supt. Bond a plan to move the defendants to a remote location as a means of controlling their behaviour; however, Sgt. Kalkat did not regard this step as necessary to protect the public because he was confident the defendants were dependent upon Officer A and would do nothing without him.
[152] The April 10, 2013, C237 report to National Headquarters referred to a plan to obtain an OPC to monitor conversations between Officer A and Mr. Nuttall and Ms. Korody. This took longer than expected and was not obtained until early May 2013. The report also mentioned a plan to work with the Crown to obtain a general warrant to search and image the defendants’ computers. This is the first reference to a general warrant for this purpose.
[153] Supt. Bond reported to CSIS on Mr. Nuttall’s activities during his regular de-confliction meeting on April 10, 2013. He expressed the opinion that there was no need for surveillance because the undercover operator had sufficient control over Mr. Nuttall to adequately mitigate any risk to the public. Supt. Bond told CSIS that the RCMP’s intention was to get evidence of Mr. Nuttall acting on his own without guidance or incitement from the police.
[154] Another briefing occurred on April 10, 2013. Members of the command team and undercover shop attended the meeting. A plan was outlined that would turn Project Souvenir toward a “Mr. Big”-type scenario where the defendants would be interviewed by a crime boss or financier who would elicit the details of their plan. In response to this plan, Cpl. Matheson again expressed a concern that Officer A not overly excite Mr. Nuttall about doing jihad. Cpl. Matheson testified that he was concerned that Mr. Nuttall had demonstrated certain vulnerabilities and there was a danger that Officer A could push him too far.
[155] At this time Sgt. Kalkat was receiving legal advice that it was Mr. Nuttall who had to take active steps towards an act of terrorism and he expressed this view to the group. (Sgt. Kalkat had shared the issues raised by Ms. Devlin, Q.C. concerning entrapment with Supt. Bond at an earlier meeting on April 10th.) It was also during the April 10th meeting that Sgt. Kalkat advised the group that it was permissible to pay Mr. Nuttall to do jobs for Officer A as long as the police were not paying him to buy bomb parts. There were practical concerns raised about the delay in obtaining the OPC order and the need to rely on Officer A’s notes to record the conversations during scenarios. It was difficult to get everything down that Mr. Nuttall said because he was so talkative, and without a recording the RCMP would not pick up on tone of voice and demeanour. Addressing the gun issue, the investigative team endorsed a plan to have Officer A instruct Mr. Nuttall not to talk to anyone else or do anything without him. Officer A was also to advise Mr. Nuttall not to talk about him with anyone else.
[156] The investigative team’s directions were incorporated into a scenario planned for April 14, 2013. Officer A would direct Mr. Nuttall not to do anything that would attract attention, including targeting P.R. and trying to obtain weapons from other sources. He was not to talk to others about Officer A. During the scenario Mr. Nuttall advised Officer A that while he had been offered a 9 mm Berretta and ammunition for $1,400, he did not take the offer because Officer A had told him not to acquire any kind of weapon. Mr. Nuttall raised P.R. again but told Officer A that while he had a perfect opportunity to kill him, he decided not to do this due to Officer A’s directions.
[157] Although directions given to Mr. Nuttall about not seeking help from other persons, and not attempting to buy a weapon, were intended to preserve the safety of the public (in part due to the excitement about doing jihad created by the undercover operation), they also had the effect of further isolating Mr. Nuttall and Ms. Korody from others and made Officer A’s influence over them far stronger.
[158] In addition, during this scenario Officer A made statements that led Mr. Nuttall to believe that he was using his business profits to carry out jihadist inspired terrorist missions. In regard to financing jihad, Officer A told Mr. Nuttall that his business looked legal on the surface, but this funded his real goals. Mr. Nuttall expressed his belief that Officer A’s business dealings did not look legal to him or insignificant and he referred to the flash roll of $20,000. Mr. Nuttall questioned Officer A about his timeframe for jihad and suggested a year or two into the future was his view of the matter. However, Officer A responded that it would be sooner.
[159] The Boston Marathon bombing occurred on April 15, 2013. Due to a concern that Mr. Nuttall might be interested in doing a copycat explosion, Officer A was directed to telephone Mr. Nuttall and refer to an upcoming job to determine if the Boston Marathon was on his mind. Cpl. Matheson agreed to this telephone contact because Supt. Bond insisted that the call be placed. Cpl. Matheson feared that by engaging Mr. Nuttall in a conversation about jihad, particularly if he did not bring it up, the police might be putting ideas into his head instead of Mr. Nuttall telling the police what his ideas were. When Officer A placed the call, Mr. Nuttall did not bring up the subject of the Boston Marathon despite the widespread publicity surrounding the bombing.
[160] The next scenario involved a clandestine meeting between Officer A and two other undercover officers in a hotel room, and was designed to cement Mr. Nuttall’s belief that Officer A was heavily involved in illegal or quasi-illegal activities that produced profits for jihadist missions. In preparation, Sgt. Kalkat met with Cpl. McLaughlin to discuss the type of criminal tradecraft that could be shown to Mr. Nuttall to further his belief in Officer A’s cover story that he was part of an organization involved in criminal activities. Many of the sergeant’s suggestions became specific objectives of the scenario. Sgt. Kalkat also continued to seek religious advice from Cst. Mokdad and, anticipating that he might be denied access to Officer A outside scenario briefings, the sergeant asked Cst. Mokdad to talk to Officer A directly.
[161] On April 17, 2013, CSIS contacted Supt. Bond and expressed concern about Mr. Nuttall targeting someone during the upcoming Vancouver Sun Run on April 21. In consultation with A/Commr. Rideout, Supt. Bond promised that there would be surveillance or an undercover scenario on that day to keep Mr. Nuttall occupied. Cpl. Matheson was directed to have Officer A initiate contact with Mr. Nuttall to determine if he had any plan to stage an attack. Again, Cpl. Matheson was concerned about putting ideas into Mr. Nuttall’s head and he balked at giving this direction to Officer A. It was only after the undercover shop learned that this direction came from A/Commr. Rideout that they complied. Nothing came of the subsequent telephone contact between Officer A and Mr. Nuttall; he had no plan to engage in any terrorist plot associated with the Sun Run.
[162] The hotel scenario occurred on April 19, 2013; however, Mr. Nuttall was in communication with Officer A before this date expressing his loneliness and his feelings of isolation. During the subsequent face to face meeting, Officer A explained to Mr. Nuttall the ways in which he used his business dealings to make money for jihadist missions. He told Mr. Nuttall that soon he would be able to discuss their plans and how he could help them achieve their jihadist goals. He instructed Mr. Nuttall that he took his time; he did not rush things; he did his research, and made sure everything was in order before he got involved. In essence, Officer A was instructing Mr. Nuttall how he should approach a plan to do jihad.
[163] At the beginning of this scenario, Mr. Nuttall said he believed that Officer A was selling drugs and that the men they met in the hotel room were part of the mafia. Officer A denied that he sold drugs; however this statement led to a religious and philosophical discussion about selling drugs to achieve jihadist goals. Officer A lectured Mr. Nuttall on the schools of thought among Muslims about selling drugs and provided him with interpretations of the Quran around the killing of innocents with drugs even if there was a higher purpose. Part of this conversation is contained in Officer A’s notes:
I then said that he will have to be responsible of his action and that would [sic] be a big responsibility because drug [sic] destroy life’s, families, and more.
I then told him what if somebody’s death is caused by the drug you sold him in some, even if it’s a kaffer, I told him that there was a Surrat from Koran that says that the killing of one innocent person is like the killing of all mankind. Nuttall told me that he knew the surrat in English. In the end I told him that as long as he can controls [sic] his action he can do whatever he wanted but when he can’t [sic] shouldn’t.
Nuttall said that he understands that, we also had a general conversation about the religion and his big desire to become my disciple.
[Emphasis added.]
[164] During the hotel meeting, Officer A let those present know that he had a partner who had to approve the transaction. Mr. Nuttall continued to believe the two undercover officers who met with Officer A were mafia and connected to drugs. In private he disclosed to Officer A his past history of drug addiction and his violent work as a drug debt enforcer. Mr. Nuttall said that since he had converted to the Muslim faith his life had changed drastically and he no longer had thoughts of killing men and making them suffer. On the way home they discussed P.R. and why Mr. Nuttall wanted to kill him; however, it was Officer A who brought up this subject as directed by cover. Mr. Nuttall gave Officer A P.R.’s telephone number as requested (this turned out to be the wrong number) and showed him a house in Surrey where P.R. “hung out”. Officer A gave Mr. Nuttall $100 for his help during the meeting and promised to buy him a suit so that he could fit in better with Officer A’s associates.
[165] Officer A agreed that during the scenarios he taught Mr. Nuttall how to be more secretive about his jihadist ideas and to use clandestine methods or tradecraft. He also agreed that Mr. Nuttall changed his very open and indiscreet behaviour regarding his jihadist ideas and beliefs, which he demonstrated in the early scenarios, in response to these lessons from Officer A. Mr. Nuttall told Officer A that a friend had offered to take him to Afghanistan to fight for jihad but he had no passport and thus could not go. Instead, Mr. Nuttall would stay in Canada and “fight behind enemy lines.”
[166] On April 23, 2013, Officer A was directed to telephone Mr. Nuttall and set up a meeting for April 26th. During the telephone call, Officer A led Mr. Nuttall to believe that he might be attending the mosque with him the following Friday and that he was to meet another good Muslim brother at that time. Mr. Nuttall expressed great pleasure at this prospect and he continued to ask Officer A to attend the mosque with him at later stages during the operation. Officer A had no intention of attending a mosque with Mr. Nuttall even if he had been directed by cover to do so.
[167] During Supt. Bond’s April 24, 2013 de-confliction meeting with CSIS, he advised that the undercover operator had control over Mr. Nuttall and he would not do anything without Officer A’s knowledge.
[168] By April 25, 2013, the command team had become concerned about the lack of contact between Officer A and Ms. Korody. Due to her religious beliefs it was inappropriate for Officer A to be alone with her. The command team discussed ways of involving Ms. Korody in the scenarios, expressing the belief that “the only way to get charges [against her] is from her mouth”. Again, it was proposed that a female undercover operator be introduced to Ms. Korody.
[169] The scenarios with Mr. Nuttall meeting alone with Officer A continued on April 26, 2013, when Officer A took Mr. Nuttall shopping. He purchased Mr. Nuttall a suit, some shirts and shoes. He also gave Mr. Nuttall $200 to purchase a hard drive that could be encrypted or password protected. It was the intention of the RCMP to have Mr. Nuttall record his jihadist plan on the hard drive so that they could acquire it at some later time. Officer A instructed Mr. Nuttall to password protect his work on the USB drive but he ultimately failed to do this.
[170] En route to the shopping mall, Mr. Nuttall talked about the Boston Marathon bombing and criticized the public condemnation of the “brothers’” actions. Officer A expressed agreement with Mr. Nuttall’s views about the “Boston brothers”. In response, Mr. Nuttall told Officer A that the Boston plan was a good one and was easier than building rockets. Mr. Nuttall did not return to this plan but went on about his other plans involving building rockets, storming the Esquimalt naval base, blowing up the Coho ferry, and hijacking a nuclear submarine.
[171] Mr. Nuttall spoke about how ill Ms. Korody was and how difficult it was for her to find a female Muslim doctor. Mr. Nuttall told Officer A that Ms. Korody had cervical cancer and was vomiting all the time. He said she wanted to die a martyr and so things had to be rushed presumably because Mr. Nuttall believed she did not have long to live. Supt. Bond testified that this was a concern to the RCMP because Mr. Nuttall was talking about ending his life prematurely; however, Supt. Bond did not appear to have any concerns about Ms. Korody’s health. Similarly, while both Cpl. Matheson and Sgt. Kalkat testified that they were alive to Ms. Korody’s health problems, it does not appear that either took any steps to ensure her physical safety during the operation apart from arranging her methadone delivery during later scenarios in June. Indeed, this accommodation was necessary to ensure the defendants were able to carry through with the plan to construct the pressure cooker devices in the remote location secured by the RCMP.
[172] In response to Mr. Nuttall’s concerns about Ms. Korody’s health, Officer A redirected Mr. Nuttall again by saying he “understood why he (Mr. Nuttall) is looking now for an operation that can be done easily, fast, and won’t need that much money.” None of these assertions came from Mr. Nuttall. Officer A then added that he would need to see the plan and that he would “worry about the logistics and finding people that can help.” This offer of assistance was repeated many times during the operation. In reality, however, it was only the RCMP that was interested in a cheap, quick and easy means of carrying out violent jihad. Mr. Nuttall continued to express a desire to carry out several grandiose schemes that, even if possible, would take years to organize and far more resources and know-how than he or Ms. Korody possessed or could reasonably acquire. In this regard, when Officer A telephoned Mr. Nuttall on April 28, 2013, he asked for help with the “book”, which was a code word that Officer A suggested be used for the plan when talking over the telephone. Mr. Nuttall added, however, that there was no rush for the assistance.
[173] During this scenario, Officer A further strengthened Mr. Nuttall’s belief that he was dealing with a large terrorist organization. Officer A brought up P.R. and said that his friends in Iraq and Afghanistan did not recall such a person. In later scenarios Mr. Nuttall would remind Officer A about these friends and he suggested they be part of the team that stormed the Esquimalt base. In addition, Officer A confirmed that the security guard Mr. Nuttall suspected was part of his organization was in fact in his employ. Officer A said it was important to have people like the security guard working for him if the police came around asking questions.
[174] In anticipation of receiving an OPC order that would permit the recording of Officer A’s conversations with Mr. Nuttall, the investigative team and the undercover shop began discussing the nature of the scenario that would have Mr. Nuttall put his plan to do jihad on the hard drive purchased during the shopping trip. The scenario ultimately involved the defendants driving to Whistler with the hard drive and transferring it to another undercover officer posing as part of the terrorist group. The structure of this scenario led to another major dispute between Sgt. Kalkat and Cpl. Matheson.
[175] There was a consensus of expectation that Mr. Nuttall would include a complete plan on the hard drive before he left for Whistler. Officer A instructed him to get the plan down on the hard drive and Mr. Nuttall advised Officer A that he had finished his plan two days prior to the Whistler trip. At this time Sgt. Kalkat was well aware that to avoid entrapment, any plan chosen would have to be Mr. Nuttall’s plan and, further, that the defendants would have to “build the devices” on their own. He knew these things as a result of the legal advice he received from Ms. Devlin, Q.C.
[176] Sgt. Kalkat advised the senior E-INSET officers that he was confident Mr. Nuttall would land on a specific plan and commit it to writing on the hard drive notwithstanding that to date he had been “all over the map” with regard to his jihadist ideas. The sergeant advised senior officers that he did not anticipate the operation would go beyond a further 60 days and would end by June 30, which the sergeant referred to as “D Day”. He also assured them that Mr. Nuttall would not act out on his own without Officer A’s approval and thus, in light of the additional surveillance provided by CSIS, there was no risk to the public. The sergeant believed at this time that Mr. Nuttall lacked the means to achieve his plans and was relying on Officer A for whatever he required.
[177] It was on May 2, 2013 that Mr. Nuttall left a message for Officer A indicating that he had finished the “book” (code for his plan) and he wanted Officer A to read it. Mr. Nuttall later confirmed that the plan was finished in a telephone call with Officer A.
[178] By early May 2013, there were two pole cameras outside of the defendants’ basement suite. The footage from these cameras indicated that the defendants had few outside contacts and Ms. Korody rarely went outside of the suite without Mr. Nuttall. Cpl. McLaughlin testified that while the pole cameras could have been switched on 24 hours per day the RCMP did not do this. In any event, there was never any useful evidence derived from the cameras.
[179] On May 3, 2013, the RCMP secured the OPC order to record conversations between the undercover officers and the defendants. Cpl. Matheson testified that he was sometimes present to live monitor the scenarios’ audio recordings but he did not subsequently review transcripts and was dependent upon Officer A for summaries of what had occurred. Officer A continued to debrief Cpl. Matheson and Cpl. McLaughlin after the scenarios. Cpl. McLaughlin was also present to live monitor some of the scenarios after the OPC order was in place but he did not consistently do this. He rarely reviewed a transcript of a recorded scenario.
[180] Sgt. Kalkat met with Supt. Bond and A/Commr. Rideout on May 3, 2013, to provide an overview of the operation so far. He reported that there were no public safety concerns and that Officer A had complete control over Mr. Nuttall.
[181] On May 4, 2013, Officer A met with Mr. Nuttall to organize the trip to Whistler for the purpose of passing the hard drive with the “book” to a partner who would examine it and determine if the group could provide assistance to Mr. Nuttall. One of Officer A’s objectives was to get Ms. Korody to come with them to Whistler. Notwithstanding that Mr. Nuttall said his wife was very sick, Officer A pressured him to permit her to come and enticed Mr. Nuttall with the promise of a nice lunch on an outdoor patio. The purpose for insisting that Ms. Korody come with them to Whistler was to learn more about her and determine whether she shared Mr. Nuttall’s jihadist beliefs.
[182] During this scenario, as with prior scenarios, Mr. Nuttall expressed his strict conservative views about the subordinate position of women in the Muslim faith. On numerous occasions he told Officer A about the control he exercised over Ms. Korody, including insistence that she wear the niqab or hijab while in public, that she obey his orders, and that she not smoke. He controlled her by restricting her access to their money and rationed her cigarettes. Mr. Nuttall and Ms. Korody shared very conservative beliefs about women in the Muslim faith; they believed that a woman could only reach paradise if she obeyed her husband. It was with this knowledge of the control Mr. Nuttall exercised over Ms. Korody that Officer A exerted his influence on Mr. Nuttall to secure Ms. Korody’s participation in the Whistler scenario.
[183] It was also during the scenario on May 4, 2013 that Officer A learned Mr. Nuttall had not written a plan on the hard drive. Instead, he said that he had made a list of what he might need for a plan. While he told Officer A that his failure to compose a plan was due to his lack of trust in him, the undercover shop had serious concerns as to whether Mr. Nuttall was capable of writing out a plan. In response, Officer A told Mr. Nuttall that he trusted his judgment and he now believed he was going to come up with a plan; it was not just talk. Officer A did not chastise Mr. Nuttall for failing to come up with a plan because the goal was to continue encouraging him and move him toward a plan. To this end, Officer A told Mr. Nuttall that regardless of whether he had completed a plan, he believed that Mr. Nuttall was already a mujahideen. When asked if he was sure he wanted to do jihad, Mr. Nuttall replied that he was. After a rambling discussion of jihadist ideas, including hijacking a train to force Omar Khadr’s release, Mr. Nuttall said he now trusted Officer A 100% and would complete his plan on the hard drive.
[184] During the May 4, 2013, meeting Mr. Nuttall talked non-stop about A.A. who had moved into his basement suite. Mr. Nuttall said that A.A. was an addict who had spent much of his scarce money on drugs and alcohol and they had beaten him until he agreed to remain sober. As a Muslim, he prayed with Mr. Nuttall and had agreed to participate in jihad. A.A. would later become a thorn in Mr. Nuttall’s side but there was never any evidence that he had agreed to be a part of any jihadist plan. Mr. Nuttall told Officer A that he was trying to recruit A.A. for jihad and clarified that he meant being a warrior for Islam. Further, Mr. Nuttall expressed a desire to return to the ancient Islamic tradition of learning the faith while serving as a soldier and he chastised moderate Muslims for being led astray by their love of worldly possessions. During this discussion it became apparent that Mr. Nuttall was learning about Islam on the Internet. Officer A instructed Mr. Nuttall about the five pillars of Islam and told him that the Quran was superior to any of the “narrations” that interpreted the Quran. Officer A also told Mr. Nuttall that the purpose of every Muslim was to die a martyr.
[185] Mr. Nuttall also raised P.R. in the May 4th meeting. He described how he might kill P.R. because he had killed Muslims as a US soldier and he expressed doubt in Officer A’s motives when he discouraged the idea of killing P.R. During this part of their discussion, Officer A cemented his image as a powerful man by telling Mr. Nuttall that he would be able to confirm if P.R. ever fought in Iraq. He also told Mr. Nuttall that he had a list of 100 military men who he was going to take care of because they had killed many Muslims. In response, Mr. Nuttall said he was ashamed to have expressed doubts about Officer A.
[186] The Whistler trip took place on May 5, 2013. Mr. Nuttall again demonstrated his conservative religious beliefs by talking about Ms. Korody riding in the trunk. Subserviently, Ms. Korody said she would be happy to sit in the trunk, but Officer A insisted that she sit in the rear seat.
[187] On the way to Whistler it became apparent that Mr. Nuttall had not written out any jihadist plan on the hard drive. Although it was his stated intention to finish the plan en route to Whistler, Mr. Nuttall talked continually during the trip about a variety of subjects, including a plan to free Omar Khadr and other prisoners at Guantanamo prison by hijacking a passenger train in Victoria; the hijacking would be facilitated by the launching of a Qassam rocket at the Esquimalt naval base which was near the Via Rail train station. The scheme proposed by Mr. Nuttall was ridiculous, unrealistic, and well beyond his financial means and resources. Based on the skills he had demonstrated during the undercover operation, the scheme was also far beyond his capacity to organize and carry off. Moreover, as they approached Whistler the scheme became more farfetched and preposterous in terms of its ultimate goals. Ms. Korody slept throughout the trip and Mr. Nuttall woke her up several times to confirm that she wanted to die a martyr and each time she responded, “Yes, Sir”. Mr. Nuttall also told Officer A that he and Ms. Korody had code names for each other if they were in trouble. His name for Ms. Korody was “Pepsi”. Mr. Nuttall told Officer A about his experience with Guillain-Barre syndrome and how it paralyzed him for two years and left him in a wheelchair for four years.
[188] Because Mr. Nuttall had done no work on the plan during the trip, Officer A parked his vehicle in a lot for two hours to enable Mr. Nuttall to compose his plan. Ms. Korody continued to sleep in the back seat of the SUV. Mr. Nuttall talked aloud about his scheme to take the train and passengers hostage. He described the weapons and ammunition his team would require and talked about what the police and the army would do in response to their threats to kill the passengers held hostage. A sniper would pick off members of the SWAT team and they would kill a passenger if their demands were not met within the time limits. If the government refused to give in to their demands, Mr. Nuttall said the passengers would be killed to inspire others to act in the future. During this process, Officer A became very impatient with Mr. Nuttall because it was taking too long to write out the plan. He gave Mr. Nuttall suggestions for the plan which appeared to be greatly appreciated.
[189] It was during this scenario that Officer A represented himself as a seasoned terrorist by specifically leading Mr. Nuttall to believe that he had financed terrorist activities before. This was “not his first dance” said Officer A.
[190] When Mr. Nuttall finished writing up his plan, he was instructed by Officer A in regard to the proper way to approach the brother who would be waiting in another vehicle to receive the hard drive. Mr. Nuttall obeyed the instructions to say nothing to the undercover officer and merely hand over the hard drive in silence.
[191] During the scenario, the defendants were left alone for a brief period in the vehicle and their conversations were recorded inadvertently. Mr. Nuttall relayed to Ms. Korody that Officer A had indicated he may have to die if he became a liability in the mission and he responded that he was prepared to accept death so as not to endanger the mujahideen. He also told Ms. Korody that it was too late for them to turn back now as they had crossed the line and were committed to going forward with a mission. The simplistic and naïve mindsets of the defendants were quite evident in their candid conversation. For example, although Mr. Nuttall became very upset with Ms. Korody’s black clothing because it could potentially attract the attention of the police, he began to play loud Arabic music on his computer without any concern for his own actions. In addition, when Mr. Nuttall said that Officer A was going to set them up in an apartment in Victoria, Ms. Korody did not express any scepticism. Instead, she worried about whether Officer A would take their cat if they had to move. Mr. Nuttall was worried that he would give Officer A away to the police if he was caught and he naively tried to forget his name to protect Officer A’s identity.
[192] When Officer A rejoined them, Mr. Nuttall became very excited about learning to shoot a gun by practising during paintball games. Mr. Nuttall desperately wanted Officer A to come with them to play paintball but this never occurred. Officer A did not discourage Mr. Nuttall’s ideas about weapons training and, instead, clearly articulated his intention to take care of all of these logistics in preparation for Mr. Nuttall’s plan. He told Mr. Nuttall not to worry about training or other “logistics” thereby eliminating a major obstacle in the way of executing any plan.
[193] En route back to Surrey, Mr. Nuttall talked incessantly while Ms. Korody slept in the back seat. He told Officer A that he had spoken to a US soldier the night before over the Internet. Mr. Nuttall said that he told the soldier that peace could be achieved and there would be no more terrorism if all the foreign soldiers left the Middle East and stopped supporting Israel. Mr. Nuttall also talked about A.A. and whether he was capable of dying as a martyr. If A.A. was not willing to die, Mr. Nuttall said he would kill him to save the other mujahideen. He then asked Officer A if that would be permitted by the Islamic faith. Officer A also brought up the subject of P.R. even though Mr. Nuttall had not mentioned him. When Officer A asked Mr. Nuttall how he would kill P.R., Mr. Nuttall described a rambling ruse that he would use that appeared to be simply “off the top of his head”. Mr. Nuttall also repeated Officer A’s advice that he should not put the mission at risk by killing P.R.
[194] Once the OPC order was in place, the RCMP had the capacity to conduct live monitoring of the scenarios and to subsequently review transcripts, synopses and task action reports to ensure the investigative team was aware of any important issues that came up. The monitors were instructed to advise the team if there was an imminent threat, incidents related to the defendants’ physical and mental health, and significant developments regarding evidence gathering. Sgt. Kalkat testified that if something came to his attention, he would ensure it was addressed in the next scenario. Through this process the sergeant became aware of Ms. Korody’s health problems and Mr. Nuttall’s repeated requests for spiritual guidance. In regard to spiritual guidance, the sergeant continued to give Officer A advice on how to respond to Mr. Nuttall based on his consultations with Cst. Mokdad. No steps were taken to address any of Ms. Korody’s health problems.
[195] On the morning of May 7, 2013, there was a briefing with the investigative team to address the unsuccessful attempt to get Mr. Nuttall to commit to a feasible plan and include it on the hard drive. Sgt. Kalkat did some research and discovered that the Via Rail train that was the centre of Mr. Nuttall’s plan was no longer a passenger train operating in Victoria. He expressed frustration with the undercover shop because their idea of an elaborate Whistler scenario had failed. The team discussed the possible reasons for Mr. Nuttall’s failure to come up with a viable plan, including the possibility that he did not trust Officer A. Sgt. Kalkat was concerned that Mr. Nuttall was dominating Officer A and directing the pace and direction of the operation. The sergeant was particularly concerned that the scenarios crafted by the undercover shop could compromise the operation and that the optics in court of Mr. Nuttall being pressured to write up his plan while Officer A watched him were not good. The sergeant also knew that Project Souvenir was a divisional priority and that the eyes of the senior officers at headquarters in Ottawa were on the investigation.
[196] The investigative team discussed the fact that Mr. Nuttall could not remain focused on a single plan and his interest constantly switched to various plans. Their discussion centred on whether this was a sign of lack of interest or dedication or whether it was a sign that Mr. Nuttall wanted to impress Officer A. Sgt. Kalkat testified that terrorists often have many plans but ultimately settle on a single plan. Thus it was not a concern to him that Mr. Nuttall was “all over the map” regarding his ideas for jihad.
[197] On the afternoon of May 7, 2013, there was another briefing that included the investigative team and members from the undercover shop. They again discussed the fact that Mr. Nuttall’s plan on the hard drive was entirely unfeasible because there was no longer a passenger train in Victoria to hijack. The investigative team believed that Officer A had to elicit a single plan from Mr. Nuttall and take firmer steps to challenge his thought process in regard to his grandiose schemes. There appeared to be a tension between the investigative team’s desire to focus Mr. Nuttall on a single plan and the undercover shop’s concern about undue influence by the operator. By channelling him to a specific mission, it might be said that the impetus for the plan came from the police rather than from Mr. Nuttall. This remained Cpl. Matheson’s concern throughout the project.
[198] The group discussed creating a challenge scenario where Officer A would essentially take away Mr. Nuttall’s dream of being part of this jihadist organization if he did not focus on a real plan and show some dedication and initiative. Cpl. Matheson disagreed with this approach because it was more suited to a traditional “Mr. Big” operation where the offence has already been committed. The prospect of expulsion from the group in that type of investigation is designed to push the target into telling the criminal organization the truth. In Project Souvenir there could be no reward for Mr. Nuttall should he carry out a terrorist mission; conversely, there could be no penalty held over his head should he decline to come up with a plan.
[199] Again, there was a dispute between the investigative team and the undercover shop as to how best to handle the failed train plan. Sgt. Kalkat wanted to inject more realism into the scenarios with references to jihadist philosophy and Islamic extremism. He believed that Mr. Nuttall doubted that Officer A was who he said he was and wanted Officer A to act and talk more like a real terrorist. The sergeant expressed the view that this was how to get Mr. Nuttall to commit to a plan and take active steps to achieve it. Cpl. Matheson was confident that Mr. Nuttall already believed Officer A was a “big deal” and there was no need to inject further realism into the scenarios. He felt that Mr. Nuttall’s reluctance to commit a plan to writing suggested he realized that this would be an actual step towards accomplishing a jihadist mission and his life would change forever if he took this step. Cpl. Matheson was confident that Officer A could say anything to Mr. Nuttall and he would not run away and would remain loyal.
[200] At the conclusion of the meeting, the consensus was that given enough money Mr. Nuttall would become a terrorist. The question remained whether the police could provide money to Mr. Nuttall and, further, whether it would be in the public interest to do so in light of the possible safety risk. Sgt. Kalkat testified that Ms. Devlin, Q.C. had advised that paying Mr. Nuttall small amounts of money did not constitute entrapment and he continued to follow this advice until June 24, 2013, when her advice on this issue changed.
[201] On the same day, May 7, 2013, Supt. Bond and Sgt. Kalkat met with A/Commr. Rideout to advise him of what had transpired during the Whistler scenario. Despite the lack of progress, A/Commr. Rideout indicated that this project had to be given the highest priority. Supt. Bond agreed that when he discovered that Mr. Nuttall’s train plan was unworkable, it concerned him that there had been little planning on his part and he had not done much research. The superintendent agreed that the next scenarios were designed to focus Mr. Nuttall on a feasible plan even though he recognized the entrapment issues would be challenging to avoid if this occurred. Sgt. Kalkat was not deterred by Mr. Nuttall’s inability to come up with a workable plan. In his C237 report dated May 8, 2013, the sergeant advised National Headquarters that he “anticipate[d] that this project will move forward successfully and will be able to gather sufficient evidence to support criminal charges within the next sixty days.”
[202] Over the next two days, Sgt. Kalkat and the undercover shop went back and forth on what kind of scenario would be necessary to respond to the failed train plan. Their dispute centred upon the nature of the challenge by Officer A: should he be angry and aggressive in response to Mr. Nuttall’s failure to provide a properly researched plan consistent with a realistic terrorist or should there be a soft approach? Should another undercover operator be brought in?
[203] Cpl. Matheson’s plan was to introduce Officer D to Mr. Nuttall as the “boss” who would not directly challenge him on the choice of target but would caution him to stay peaceful and “not lose sight of the big picture” in terms of his plans for jihad. The emphasis would be on voluntariness. He feared that the challenge preferred by Sgt. Kalkat would turn Mr. Nuttall into a terrorist when he might not be one. The corporal’s views were included in an email to Sgt. Kalkat dated May 8, 2013:
… As per our conversation this afternoon, I have concerns about how we choose to approach a direct challenge to the plan as it was presented to us on Sunday. The last thing we want to tell the target is that he needs to go away and come back with a real plan. There may come a time for that when we want to decisively challenge the target’s intentions. At this stage, however, the target may come back with another plan simply because we told him to. This would be coercion at best, and at worst it would be us making a terrorist out of someone who might not otherwise be.
[204] Cpl. Matheson also emphasized that Officer A’s assessment that Mr. Nuttall did not have mental health issues might not be accurate and, as a consequence, a tracking warrant on his cellular telephone would be necessary to keep an eye on his whereabouts when he was not with Officer A. Sgt. Kalkat dismissed the idea of a tracking warrant as necessary for public safety and he feared it might jeopardize the operation.
[205] Sgt. Kalkat agreed with the general idea of the scenario proposed by Cpl. Matheson but he wrote back indicating that he did not want to introduce Mr. Nuttall to “other members of the organization” at this time because this would not be consistent with how a “terrorist cell” operates. It was only when someone did something worth rewarding that he got to meet the other members of the organization. Sgt. Kalkat attempted to gloss over his use of this specific language about terrorist organizations in reference to Officer A during his testimony; however, I find that his written communications at the time of the events are far more reliable than his evidence at trial, which was often self-serving and contrived in light of what he recorded at the time. In these written communications, Sgt. Kalkat disputed Cpl. Matheson’s comments about coercion and referred to legal advice from Ms. Devlin, Q.C. that the operation to date had not been coercive. Ms. Devlin, Q.C., however, was not shown the objectives for the upcoming May 10 scenario, nor provided with a recording of the meeting between Mr. Nuttall and Officer A from the previous scenario. Again, in his email response, the sergeant reminded Cpl. Matheson that this investigation was a divisional priority and that A/Commr. Rideout and Supt. Bond had approved increased contact between the operator and Mr. Nuttall.
[206] The scenario outline for the May 10, 2013 meeting with Mr. Nuttall contained objectives that were drafted by the undercover shop with input directly from Sgt. Kalkat. Objectives 3 and 4 were as follows:
3. [Officer A] will ask about Nuttall’s recent knowledge of Victoria. [Officer A] will tell Nuttall that the train now only runs freight. [Officer A] will be embarrassed and displeased with Nuttall. [Officer A] will find out why Nuttall did not provide a properly researched plan. [Officer A] will talk about Nuttall’s desire for a gun in relation to his lack of focus and failure to look at the big picture.
4. [Officer A] will explain that they will be friends no matter what. There is nothing Nuttall needs to prove to [Officer A] or his associates. Nuttall needs to follow his heart. If there is something that Nuttall wants from [Officer A] then he can ask, and [Officer A] and his partner will decide what they can or cannot do. …
[Emphasis added.]
[207] The advice to “follow your heart” came directly from Sgt. Kalkat who came up with this phrase in consultation with Cst. Mokdad. It was designed to deal with Mr. Nuttall’s requests for spiritual guidance. Cst. Mokdad testified that this phrase may have come up during his discussions with Sgt. Kalkat; however, it would have been in the context of following your destiny and the notion that why you do certain things is between you and Allah.
[208] The second C237 report to RCMP National Headquarters was prepared on May 8, 2013. This report covered the period March 29 to April 29, 2013. An objective of the investigation during this period continued to be a general warrant to secure a mirror image of Mr. Nuttall’s hard drive.
[209] At this time the undercover shop was also concerned about their lack of knowledge about the terrorism offences in the Code. Sgt. Kalkat interpreted their request for more clarity with regard to the elements of the offences that were contemplated in Project Souvenir as a need for a checklist. On May 9, 2013, he sought legal advice from Ms. Devlin, Q.C. on this question. She replied that a checklist could not be provided and the undercover shop’s request for one demonstrated their lack of understanding regarding the complexity of the terrorism offences. Nevertheless, Ms. Devlin, Q.C. provided the following advice regarding the elements of the terrorism offences:
…What I can advise is that the UCO unit and the investigative team review Part II.1 of the Criminal Code (s. 83.01-83.27 of the Code). As you see from a review of those sections if you are contemplating seeking a charge against the target with respect to s. 83.18, participating in the activities of a terrorist group, you will need to identify who is in that group. At the moment you seem to suggest there is evidence to support the view that the target and his spouse actually form the “terrorist group”. While I have not reviewed the evidence, that is not a particularly compelling situation given the nature of their relationship. You require evidence to satisfy the statutory definition of terrorist group: one or more persons whose objective is to commit or facilitate a serious violent act, to intimidate the public, for a religious, political or ideological purpose.
You may also be considering charges under s. 83.19 - facilitation of a terrorist activity. Terrorist activity is defined in s. 83.01 of the Code.
[210] Ms. Devlin, Q.C. opined that based on the case to date, charge approval may not be forthcoming:
Based on what I know of the case thus far I cannot say whether you would meet the threshold for charge approval. While the statements made by the targets are alarming, I cannot say at this stage they are sufficient to support a charge. Nor can I provide you with a specific list of requirements to ensure that you would meet the threshold.
[211] On May 10, 2013, Officer A met with Mr. Nuttall and this meeting turned into an aggressive challenge and confrontation about his unworkable plan to hijack the passenger train. Mr. Nuttall said he did not know that the train no longer carried passengers, and offered that this was a plan that he “made up off the top of his head”.
[212] A number of significant things happened at this meeting. Most importantly, Officer A gave Mr. Nuttall confusing and mixed messages about their relationship. On the one hand, Officer A told Mr. Nuttall forcefully and in a raised voice that his partner was angry that the plan turned out to be misconceived. His failure to research the plan had embarrassed Officer A who had vouched for Mr. Nuttall. Officer A took on an angry demeanour and tone of voice with Mr. Nuttall. He told Mr. Nuttall that he was now beyond the point of no return regarding the plan; there was no going back now. On the other hand, when Mr. Nuttall explained that he brought his marble gun to the meeting because he believed that Officer A was going to kill him on instructions from his brothers, Officer A laughed and assured Mr. Nuttall that he was not going to kill him and he vouched for all his brothers. Then Officer A told Mr. Nuttall that he did not need Mr. Nuttall’s help to do jihad. Confusing the issue further, Officer A said that Mr. Nuttall could now back out of the plan and they could still be friends.
[213] In addition, Officer A set Mr. Nuttall on the path towards a realistic plan. Officer A told Mr. Nuttall that he would not be involved with a plan unless it was well-researched, workable, well-prepared and realistic. Officer A counselled Mr. Nuttall to use the Internet to research a realistic plan. When Mr. Nuttall returned to the rocket plan, Officer A expressed the belief that this was not a realistic plan. Mr. Nuttall responded that he was not a general and could not craft the kind of plan Officer A wanted to see. Mr. Nuttall became visibly upset and pleaded for Officer A to find him a spiritual advisor who would advise him whether killing innocent people and blowing oneself up was consistent with the Muslim faith. At first Officer A told Mr. Nuttall that he knew about the faith already. Mr. Nuttall responded that he had only researched on the Internet and was not a scholar. He had serious questions that jeopardized his soul. In response, Officer A said that if he had questions about the faith, Mr. Nuttall could talk to him or text him and he would provide the answers.
[214] The audiotape of this meeting would have alerted the undercover shop and the command team that Officer A had given spiritual advice to Mr. Nuttall during this critical confrontation. The RCMP also would have known that Mr. Nuttall was expressing reticence and uncertainty about any intended act of violence against non-Muslims, and in particular, innocent citizens. Significantly, the RCMP would have known the context of Mr. Nuttall’s religious uncertainty: he was caught between an obviously angry terrorist and a man he expressed a desire to follow as a disciple. However, this change in the direction of the project received little attention.
[215] Mr. Nuttall continued to protest that he did not have the ability to solve the problems in the way of making a workable plan but Officer A continued to press him to do his research. Officer A told Mr. Nuttall that if a good plan was formulated he would finance it and take care of all of the logistics. Effectively Officer A was counselling Mr. Nuttall to come up with a better terrorist plan. This promise of help did not seem to placate Mr. Nuttall who broke down in tears. Officer A consoled him and said that all would be fine and they would do it together “by baby steps one at a time.” Mr. Nuttall responded that he needed direction from Officer A and he asked what he should be doing between now and the next time they met. Significantly, Mr. Nuttall said that he was not going to carry out any jihad until he had the spiritual guidance he was looking for in regard to whether killing was prohibited or permitted by the faith. In response, Officer A refocused Mr. Nuttall on working towards a jihadist plan and Mr. Nuttall became newly infused with enthusiasm about coming up with a good plan this time and wanted his hard drive back to begin working on it.
[216] It was also during this scenario that Officer A promised to eliminate another obstacle in the way of crafting a plan to do jihad. Mr. Nuttall did not want to do research on the Internet without a secure connection. Sometime after this scenario Officer A introduced Mr. Nuttall to Tor software that permits an internet user to disguise their IP address. Mr. Nuttall also raised the necessity for a recce to Victoria in order to come up with a plan. Officer A eliminated this impediment by a promise to take Mr. Nuttall to Victoria for a recce if he came up with a workable plan. Ultimately the police took Mr. Nuttall and Ms. Korody on a recce before they had formulated a plan in the hope this would inspire them to actually choose a plan.
[217] During this meeting, Mr. Nuttall asked Officer A if he could get him some saltpetre, which is potassium nitrate, to make C4. Officer A had to explain to him that potassium nitrate is not an ingredient of C4; it is only used to make black powder. This was another indication that Mr. Nuttall knew little about explosives.
[218] Cpl. Matheson’s fears about the scenario had come true. Mr. Nuttall believed that Officer A had been told to kill him. Mr. Nuttall brought his marble gun to the meeting with Officer A and expressed those very fears after Officer A angrily confronted him about the failed train plan. Mr. Nuttall said he was now a liability to the terrorist organization and Officer A’s instructions clearly led him to believe that the way to reinstate himself in the good graces of the “sophisticated terrorist organization” was to come up with another plan, but this time a good plan.
[219] Supt. Bond testified that while he was not involved in the planning for this scenario, he was briefed on what occurred after the fact. Although he agreed that what Officer A had said to Mr. Nuttall raised concerns in his mind, he did not instruct Sgt. Kalkat specifically with regard to any remedial measures. He testified that during their briefing, Sgt. Kalkat left him with the impression that Mr. Nuttall wanted to charge ahead with a plan. Supt. Bond testified that it could be problematic for Officer A to deflect Mr. Nuttall from any hesitation towards a concrete jihadist plan, but where it was left by Officer A was putting things “in Mr. Nuttall’s court.”
[220] Cpl. Matheson testified that Mr. Nuttall often asked Officer A to tell him what was permitted and prohibited by the Islamic faith. If Officer A deflected these questions he might lose credibility as a knowledgeable Muslim. Cpl. McLaughlin testified that Officer A was instructed to tell Mr. Nuttall to “follow his heart” if religious guidance was sought.
[221] On May 11, 2013, the RCMP orchestrated a complicated route for Mr. Nuttall to follow to retrieve his hard drive from one of the undercover officers. This was another tradecraft show designed to impress upon Mr. Nuttall the sophisticated nature of the terrorist group with which he was now working. Later that night Mr. Nuttall telephoned Officer A and their conversation revealed more about Mr. Nuttall’s blind devotion to Officer A and his inability to take any positive steps towards formulating a plan. When Mr. Nuttall misheard Officer A say that he was in a bad situation, Mr. Nuttall said he was going to come to his rescue immediately and gather everyone at the mosque to help. There was nothing he would not do for Officer A. When asked why he called, Mr. Nuttall could not recall the reason and rambled on about the problems he was having: he did not have a secure internet connection for research; he was thinking about flying model rockets but had no training in this area; he was emotionally distraught and felt isolated and caged inside his apartment; and he still needed spiritual guidance. Mr. Nuttall asked Officer A what he should be doing for the plan before he got a secure internet connection because he had no idea what the next step would be.
[222] Mr. Nuttall’s emotional distress continued for the next two days as he tried to reach Officer A over the telephone. As instructed by cover, Officer A did not return his calls for two days.
[223] During these two days, Supt. Bond and Supt. Schwartz, who was head of Support Services, which includes the undercover shop, discussed a very real concern that the undercover operation was enabling Mr. Nuttall to commit a terrorist act. Supt. Schwartz expressed the view that the target was dependent upon Officer A and was not capable of carrying out a plan on his own. He was concerned that the undercover operation not trigger a potentially unstable person to act out violently or do something just to impress Officer A. Supt. Bond agreed that he shared these concerns and it was their consensus that these issues should be addressed with the command team.
[224] Supts. Bond and Schwartz discussed the notion of the operation being a success because the defendants’ lack of capacity to execute a terrorist plan had been discovered and now the plan would be to consider de-radicalization strategies and a mental health assessment. These concerns were subsequently addressed with Sgt. Kalkat directly. He was directed to make a daily assessment of whether Mr. Nuttall was capable of carrying out a terrorist plot independent of the RCMP’s involvement based on all of the information available to them. Further, he was directed to contact the Behavioural Sciences Group (“BSG”) within the RCMP to determine if they could prepare a physiological assessment of Mr. Nuttall.
[225] Sgt. Kalkat testified that after discussing the matter with BSG, this department said it lacked the experience to handle such a task. Curiously, the sergeant had no notes of his conversation with BSG and could not identify who within this group he consulted. Nor did Supt. Bond make any note of a report on this matter from Sgt. Kalkat. Supt. Bond testified that he left the decision-making on this matter to Sgt. Kalkat.
[226] S/Sgt. Joaquin directly engaged Sgt. Kalkat on the necessity of a psychological assessment of Mr. Nuttall and he suggested it could be done by Dr. Gill who was a psychologist used by the RCMP. The undercover shop was concerned about triggering an unstable man to act in order to impress Officer A. In a meeting with S/Sgt. Joaquin, Sgt. Kalkat said there was no need to assess Mr. Nuttall’s mental state because the Car 67 nurse had said he had a clear mind in November 2012 and, further, Officer A did not believe Mr. Nuttall was “mentally handicapped.” S/Sgt. Joaquin, however, remained concerned that the undercover technique was unduly influential on Mr. Nuttall.
[227] On the evening of May 13, 2013, Officer A finally returned Mr. Nuttall’s telephone call and what ensued was a long and confusing conversation about the rocket plan and the impediments to this plan. Mr. Nuttall had no money to put this plan in place; he needed to practise on model rockets; he needed a proxy server; he needed a bus pass or an old car and money to get his licence back; he needed Vaseline (which he later said meant saltpetre) and a blasting cap to make a tester for a small amount of C4; and most importantly, he required spiritual guidance. Mr. Nuttall told Officer A that he was going crazy cooped up in their apartment and Ms. Korody was still very sick. He told Officer A that they had abandonment issues and really appreciated Officer A’s visits. Mr. Nuttall said that talking to someone about spiritual guidance would help him deal with these problems and prevent him from feeling “so stir crazy”. He again asked Officer A to get him onto a restricted website (Al Ansar) so that he could talk to the mujahideen about spiritual matters. Clearly, the defendants were lonely and isolated and Officer A now appeared to be their primary and most important outside contact. At the end of the conversation, Mr. Nuttall read long passages to Officer A from an Arabic poem.
[228] Although Sgt. Kalkat testified that Mr. Nuttall attempted to purchase saltpetre, which he believed to be potassium nitrate, there was no evidence that this had occurred. Further, at the next meeting between Mr. Nuttall and Officer A on May 15, 2013, where Mr. Nuttall advised Officer A what he meant by Vaseline, there was no request to purchase this substance for him and in later scenarios Mr. Nuttall switched to talking about cow manure as a means of creating an explosive.
[229] At the May 14, 2013 briefing, attended by only the investigative team, it was apparent that the command team was again concerned about how long it was taking Mr. Nuttall to come up with a concrete plan or to take any positive steps toward a plan. Sgt. Kalkat said there was some urgency to complete the investigation and Officer A could not “hang out” with Mr. Nuttall forever. He believed that the operator would have to give Mr. Nuttall what he required for his plan but there were other officers who were concerned that the police would thereby be facilitating a terrorist act. The Crown had given Sgt. Kalkat legal advice that they were not to “put items in his hands.” However, there was pressure to move forward in the operation. Recognizing that the target had to take his own steps towards formulating a plan, the members of the command team were conflicted because they did not wish to have him take the lead over Officer A due to possible safety concerns. Sgt. Kalkat expressed a belief that while Mr. Nuttall had the will to be a terrorist, he did not have the capability and was dependent upon Officer A. He also remained concerned that Officer A was not taking control of the discussion about the Quran to demonstrate his superior knowledge to Mr. Nuttall.
[230] At this time the undercover shop favoured a different approach. They discussed ways to shut down the operation. The problem was how to end the relationship with Officer A without putting Mr. Nuttall or the public at risk due to the dependency upon Officer A created by the operation and Mr. Nuttall’s extremist ideas.
[231] Ultimately, the investigative team decided to continue with the operation. The command team appeared to be encouraged by Mr. Nuttall’s reference to a recce in Victoria. They believed that his desire for a recce showed that he was serious. The recce would be designed to flush out whether Mr. Nuttall had a plan and was capable and serious about carrying it out. In the meantime, Sgt. Kalkat was very keen to schedule another meeting with Mr. Nuttall because his telephone conversations with Officer A indicated that he was restless and had not slept and that some de-escalation was therefore necessary.
[232] Sgt. Kalkat continued to be unhappy with the approach of the undercover shop and he took steps to secure RCMP Headquarters’ approval to take over primary responsibility for the scenarios, as well as the pace and direction of the undercover operation. In unprecedented fashion he obtained approval from A/Commr. Rideout for a change in the command structure.
[233] Cpl. Matheson testified that after the May 10, 2013 scenario, he was required to create scenarios with the E-INSET objectives and implement them as he was directed by Cpl. McLaughlin and Sgt. Kalkat. Cpl. McLaughlin testified that he had no role in crafting scenario objectives; these were all dictated by Sgt. Kalkat. While Sgt. Kalkat testified that in reality it is the command team who always has the final say in scenario development, Insp. Corcoran testified that the normal process is that the undercover shop develops the scenarios and has final approval. Cpl. Matheson only retained the ability to veto anything he considered would be inappropriate or dangerous for the undercover operators. Sgt. Kalkat testified that it was Cpl. Matheson’s lack of experience with national security investigations that was problematic; however, I find the evidence supports a different conclusion. Clearly it was Cpl. Matheson’s cautionary approach with regard to actions that could amount to entrapment that led to Sgt. Kalkat’s desire to limit the corporal’s influence on scenario development.
[234] Further, in response to the May 10, 2013 scenario, Sgt. Kalkat sought permission to use Cst. Mokdad as a religious scholar or imam who would be introduced to Mr. Nuttall and who would provide him with spiritual guidance. Sgt. Kalkat testified that while he believed the RCMP would not approve such a tactic for an undercover operation because it would fail the community shock test, things had changed in the investigation and he believed this step would be a necessary part of the operation going forward. Although the sergeant testified that he soon realized that this idea was not one he should pursue, it is apparent that Cst. Mokdad refused to play this role. The sergeant thereafter kept Cst. Mokdad aware of the operation generally and continued to receive religious advice from him that was passed on to Officer A.
[235] Cst. Mokdad received an email from Sgt Kalkat on May 15, 2013, indicating that he was going to seek permission to use the constable as an undercover operator (Cst. Mokdad was not trained in this capacity) to play the role of a spiritual advisor or imam. Cst. Mokdad testified that he immediately telephoned the sergeant to advise that he would not consider playing such a role. Despite Cst. Mokdad’s position on this issue, the sergeant continued to push for him to play this role until the final weeks of the operation. Cst. Mokdad was not aware that Mr. Nuttall was seeking spiritual guidance from Officer A about his plans for jihad.
[236] On May 15, 2013, the investigative team and the undercover shop attended a briefing. At the meeting the attendees discussed the impact of R. v. Hart, 2012 NLCA 61, which recognized the susceptibility of targets to the pressures inherent in a traditional Mr. Big undercover investigation, and also a decision out of Alberta involving the use of this undercover technique on a young offender. The undercover shop recognized that the same considerations might apply to Project Souvenir, particularly because Mr. Nuttall exhibited emotional and psychological problems. S/Sgt. Joaquin raised with the group his suggestion of having a psychologist evaluate Mr. Nuttall’s behaviour during the scenarios. Sgt. Kalkat repeated his view that this was unnecessary because Mr. Nuttall had been assessed by Car 67. He believed that Mr. Nuttall was clearly dangerous due to his jihadist views and the operation should continue despite both the lack of any clear direction on Mr. Nuttall’s part towards a concrete plan and the concern of the undercover shop that Mr. Nuttall might only come up with a good plan because of Officer A’s involvement.
[237] Sgt. Kalkat also rejected the undercover shop’s suggestion that a boss figure be introduced to Mr. Nuttall to discourage him from going through with any terrorist plan as a way of de-radicalizing him. S/Sgt. Joaquin stated that this was an appropriate course of action because contact with Officer A was making Mr. Nuttall more confident about his jihadist beliefs. Cpl. McLaughlin was well aware of Mr. Nuttall’s attachment to Officer A and his influence on the target; however, his concerns were not related to the danger of undue influence due to this dependence but, instead, on the RCMP’s inability to have Officer A with him at all times for public safety.
[238] Sgt. Kalkat testified that the option of attempting de-radicalization with Mr. Nuttall was always available to the RCMP; however, he believed Mr. Nuttall was too great a risk to the public to jeopardize the undercover operation at this stage. The sergeant testified that had Mr. Nuttall said things to indicate he was no longer pro-jihadist, de-radicalization may have been pursued despite the lack of any formal program within the RCMP at that time. While he acknowledged that Mr. Nuttall’s repeated requests for spiritual guidance about harming innocents was evidence of doubt, the fact the operation was in the evidence gathering stage by this time appeared to be a deciding factor. It was his decision not to seek a psychological assessment of Mr. Nuttall and to push forward with the undercover operation.
[239] At this meeting, Cpl. McLaughlin and S/Sgt. Mann supported a report to the Crown on possible attempt murder charges in relation to Mr. Nuttall’s plan to murder P.R. Sgt. Kalkat testified that the legal opinions he had at the time led him to conclude that Mr. Nuttall was not “arrestable” for attempt murder. The sergeant also testified that while he had considered a threatening charge, he believed they had a weak case for this offence.
[240] Another issue discussed at the May 15th briefing was whether there could be a recce in Victoria before any plan had crystalized and a target had been selected. Some of those present at the meeting expressed a concern that a reconnaissance was premature and could be interpreted as police-initiated conduct rather than evidence that the targets were acting on their own. Sgt. Kalkat and Supt. Bond believed that there was nothing inappropriate about taking the defendants on a recce in advance of any concrete plan coming from them.
[241] At the conclusion of the meeting the investigative team decided that it would be acceptable to give Mr. Nuttall $200 for groceries and a bus pass, despite the concern about facilitation and incitement. A total of $359 was given to Mr. Nuttall in purchases and cash during the next scenario. Sgt. Kalkat testified that the police knew the defendants needed money for necessities and he did not want Mr. Nuttall committing a crime to obtain them. However, Mr. Nuttall had not expressed a desire to commit crimes in order to obtain funds up to this point in the operation. The team also believed that a Part VI intercept would give them critical evidence of what the defendants were thinking privately away from Officer A’s influence and they were prepared to continue with the operation until this order was granted. This was in spite of the risk expressed by the members of the undercover shop that the longer the operation continued the more dependent Mr. Nuttall would become on Officer A and the greater the danger of undue influence.
[242] Later on May 15, 2013, Supt. Schwartz and S/Sgt. Joaquin met to discuss their concern that the police were directing the targets and that the undercover operation was initiating action from the defendants. Supt. Bond testified that he was aware that these concerns were being brought to the command team’s attention by the undercover shop.
[243] In or about mid-May 2013, Cpl. Matheson contacted Dr. Gill to discuss possible exit strategies for the project should Mr. Nuttall not produce a plan for a terrorist mission. This was also a topic he raised with Les Rose, legal counsel for the RCMP, in early June 2013. Cpl. Matheson told Dr. Gill that he was concerned about public safety if the undercover operator suddenly disappeared from Mr. Nuttall’s life. He believed that Mr. Nuttall’s life centred on Officer A and the defendants were essentially housebound when they were not with Officer A. Officer A could not be his friend forever. Cpl. Matheson agreed that Mr. Nuttall and Ms. Korody had expressed their love for Officer A and they thought about him constantly. Dr. Gill did not provide any advice or suggest possible de-radicalization strategies and Cpl. Matheson did not investigate these questions any further.
[244] Behind the scenes the investigative team made plans for the Victoria recce trip. They appeared to believe that Mr. Nuttall would come up with a settled plan and would do the necessary reconnaissance while in Victoria. Cpl. McLaughlin believed that Mr. Nuttall had put forward many plans that he believed might impress Officer A hoping to find one he liked. However, Victoria was the only consistent target referred to in Mr. Nuttall’s discussions with Officer A and on May 10th, he told Officer A that before taking any action he would need to do a recce there. Officer C was to be introduced to the defendants as a subordinate of Officer A and someone who could provide security for them while they travelled around Victoria. Officer A would disengage from the defendants on this trip. Sgt. Kalkat testified that he wanted Officer A to disengage from the defendants to see what they would come up with in terms of a plan without Officer A watching over them. It was also the case that Officer A was becoming exhausted and frustrated with his long interactions with Mr. Nuttall.
[245] There was a planned scenario on May 15, 2013. Officer A met with Mr. Nuttall for coffee. He purchased bus tickets for Mr. Nuttall. When asked about his plan, Mr. Nuttall identified several grandiose ideas, including the rocket plan with the Parliament buildings in Victoria as a target; hijacking a nuclear submarine in Nanoose Bay; and storming the naval base in Esquimalt. Mr. Nuttall talked about the training he would need to carry out any of these ideas, including training in explosives. Officer A agreed to teach Mr. Nuttall how to make explosives. Earlier Mr. Nuttall had told Officer A that he had made explosives with his brother; however, Officer A realized that this must have been untrue.
[246] Again during this scenario Mr. Nuttall demonstrated how inept he was at making plans and following through with the instructions Officer A gave him. At one point in Mr. Nuttall’s rambling conversation he said he needed to do a recon for his rocket plan; however, when Officer A asked when he wanted to do the recon, Mr. Nuttall asked Officer A when he should do this. When a frustrated Officer A retorted that Mr. Nuttall was supposed to be the “mastermind” of his own idea, Mr. Nuttall became extremely concerned that he might be expected to give the orders and not just be someone who followed instructions. He told Officer A that he did not want to be a general who came up with all of the ideas. Officer A suggested he could help with “filling in the little blanks in the plan” and get more men if that was required in order to settle Mr. Nuttall down; however, this only led to more obstacles for Mr. Nuttall. He believed these men would never take orders from him and they surely would not want to work with Ms. Korody because she was a woman.
[247] Despite the obvious indications that Mr. Nuttall was no mastermind when it came to crafting or carrying out any plan, Officer A assured him that all of these problems would be taken care of in an effort to get Mr. Nuttall to press onward with the development of a plan for a jihadist mission. Officer A tried to steer Mr. Nuttall back to the recon trip at this point in the conversation; however, Mr. Nuttall was easily distracted and detoured into a long saga about his search for the right religious path, including a brief foray into Satan worship. He told Officer A that he was still searching for spiritual guidance in part because he had been rejected by the Canadian military due to his physical disabilities. This made him feel that Canada had rejected him.
[248] Officer A told Mr. Nuttall that he was going to find someone to give him spiritual guidance; he knew an excellent brother who knew everything that Mr. Nuttall needed to know. In response, Mr. Nuttall said Officer A was the only person he could talk to about these things. Officer A testified that he had no intention of finding a spiritual advisor for Mr. Nuttall. Officer A had formed the belief that Mr. Nuttall wanted only radical religious guidance and would not be satisfied with an imam who held moderate beliefs. When Officer A asked Mr. Nuttall what was truly motivating him, Mr. Nuttall replied it was “the one true God”. Officer A ended the conversation with, “follow your heart”, “no one can know your faith” and “no one can judge you” on your faith. Sgt. Kalkat testified that these references were consistent with the talking points he had prepared for Officer A.
[249] Neither the undercover shop nor the investigative team at any time attempted to de-radicalize Mr. Nuttall by using the influence that Officer A had over him coupled with an introduction to a Muslim scholar with moderate views of the faith. Sgt. Kalkat testified that Officer A was instructed to take a neutral approach when Mr. Nuttall brought up the question of religious advice. Officer A was not to encourage or discourage Mr. Nuttall from going elsewhere for this advice. However, by holding out the possibility of getting a spiritual advisor for Mr. Nuttall, Officer A had discouraged him from going elsewhere in light of the relationship of dependence created by the undercover operation.
[250] Mr. Nuttall had asked Officer A to get him access to an “invitation only” terrorist website (Al Ansar) where he would seek spiritual guidance from the mujahideen who had access to this site. Sgt. Kalkat instructed Officer A that he could not do this and, in any event, the RCMP could not have gained access to this website because membership is limited to a select group of identified terrorists. Significantly, Mr. Nuttall believed that Officer A was someone who could access this site and secure access for him.
[251] At the end of the meeting Officer A gave Mr. Nuttall $200 for groceries and $100 in cellular telephone minutes because he claimed to have no money left from his welfare cheque. When Officer A was about to leave, Mr. Nuttall expressed concern about when he would next see him. Mr. Nuttall voiced concerns about his abandonment issues and Officer A promised to come back soon. In a child-like manner Mr. Nuttall rejoiced at the thought of going to Victoria with Officer A; it felt like he was a “secret agent”. Clearly, Mr. Nuttall’s dependence upon, and his attachment to, Officer A had become extreme by this point in the undercover operation.
[252] Mr. Nuttall called and sent text messages to Officer A several times on May 16, 2013, wanting to know if he was okay. On May 17, 2013, Officer A finally responded and assured Mr. Nuttall that he was fine. Notwithstanding it was to be Mr. Nuttall’s plan and his need for a recon in Victoria, Mr. Nuttall looked to Officer A to organize all aspects of the trip, including when they would go. Once again, during this telephone call, Mr. Nuttall demonstrated his ineptitude and disorganized thought processes. Although Officer A had not yet set a date for the trip, Mr. Nuttall mistakenly believed they were to leave that day. He told Officer A that he had kicked his Fijian roommate out of the apartment for the trip because Ms. Korody could not stay in the suite with him on her own. This would be prohibited according to his Muslim faith. Significantly, when Officer A asked Mr. Nuttall if Ms. Korody was coming with them to Victoria, Mr. Nuttall said there was no need for her to come and it would be less conspicuous travelling with fewer people. While Officer A responded that it was Mr. Nuttall’s decision, in the following scenarios Officer A easily manipulated Mr. Nuttall into bringing Ms. Korody along on the trip. Indeed, it became a priority that Officer A engineer this result to facilitate evidence gathering in regard to Ms. Korody’s involvement in her husband’s jihadist plans.
[253] On May 16, 2013, the investigative team had a briefing. They discussed a number of issues but the focus of the meeting was Mr. Nuttall’s expressed intention to kill P.R. Cpl. McLaughlin testified that the team believed the undercover operation would have to be shut down if P.R. was warned about Mr. Nuttall’s threats. He also believed that it would place Officer A in danger because Mr. Nuttall might suspect Officer A was the source of P.R.’s knowledge of the threat. Sgt. Kalkat decided not to warn P.R. because he was confident that Mr. Nuttall could be directed by Officer A to leave P.R. alone. As instructed, Officer A had previously advised Mr. Nuttall not to jeopardize his mission by killing P.R. and he had followed Officer A’s direction. The decision not to warn P.R. had to be approved at Supt. Bond’s level and he could have overridden Sgt. Kalkat’s decision; however, he chose not to do so. At this meeting, Sgt. Kalkat assigned Cpl. McLaughlin to arrange for Cst. Mokdad to be granted temporary permission to act as an undercover operator in the capacity of a spiritual advisor for Mr. Nuttall in spite of the constable’s refusal to act in this capacity.
[254] The third C327 report on the progress of the project was filed on May 16, 2013. The objectives continued to include obtaining a general warrant for the hard drive on Mr. Nuttall’s computer and a further DNR order with respect to the police-owned cellular telephones provided to Mr. Nuttall. However, neither of these objectives was pursued.
[255] On May 19, 2013, Officer A met with Mr. Nuttall to plan their trip to Victoria. He asked Mr. Nuttall why he did not want to bring Ms. Korody on the trip. Mr. Nuttall started to say there was no need to bring her when Officer A cut him off and said that she was involved and wanted to do the plan so she should come. He then pressed Mr. Nuttall to get her to come to Victoria by repeating that “she was involved and wanted to do this” and by pointing out that their cover would look far better if they were a couple taking photographs rather than two men doing this. Mr. Nuttall readily adopted Officer A’s view of the optics, but Officer A’s entreaties were unnecessary because he repeatedly looked to Officer A to decide if they were taking Ms. Korody on the trip in any event. Mr. Nuttall believed it was up to Officer A to decide this matter. In my view, Officer A manipulated Mr. Nuttall into believing that it would be best to bring Ms. Korody to Victoria and then at the end of this process added gratuitously that it was up to Mr. Nuttall to decide if she came. This was clearly a throwaway line that would be meaningless to Mr. Nuttall.
[256] In this meeting Mr. Nuttall again demonstrated that he had gone no further with his ideas than talking about them. He continued to talk about T.E. and the Fijian roommate helping with the plan to build Qassam rockets, which never materialized. During this meeting Mr. Nuttall’s ideas remained grandiose and absurd. He also clarified that he had never made explosives with his friend T.E. and would need Officer A’s help to learn how to make TNT. When Officer A asked Mr. Nuttall if he was any more prepared to do jihad than when he was working with T.E., he replied that his plans were no further along but now he had Officer A to help him.
[257] Mr. Nuttall telephoned Officer A several times after this scenario and finally Officer A returned the calls on May 21, 2013. In this telephone call Mr. Nuttall recounted his near-death experience after he consumed some strychnine that he had used to kill ants in his apartment. He became paralyzed, lost the sight in both eyes and was in great pain. Mr. Nuttall told Officer A that he was near death but could not call 911, despite Ms. Korody’s entreaties, because the Quran says a Muslim cannot seek the help of anyone who mocks his religion. They called poison control and were told to drink lots of water. He was doing much better now but was still very sick. Mr. Nuttall told Officer A that he had called him twice to ask his opinion about whether he should call 911, which highlighted the deference Mr. Nuttall showed to Officer A’s advice and expertise. It was Ms. Korody’s view that when Mr. Nuttall saw the Angel of Death after being poisoned, it was really a Jin, which is a supernatural being in the Arab world. Mr. Nuttall again said that he needed spiritual guidance and Officer A was the only person he could call. He did not know anyone else who could help him with this problem and he thought he was dying.
[258] When Officer A brought Mr. Nuttall back to the topic of the Victoria trip, he said he had done nothing in furtherance of the plan. He also said he had many spiritual questions for Officer A to answer about the trip, including whether it was prohibited to bring Ms. Korody. To this and other problems raised by Mr. Nuttall, Officer A gave the usual response: he would take care of all these matters. Mr. Nuttall was not to be concerned with them.
[259] On May 21, 2013, RCMP National Headquarters approved an extension of Project Souvenir until August 31, 2013. The conditions attached to the extension included a requirement that Cpl. Matheson direct the undercover operator at all times and that he be responsible for scenario planning and development; however, as set out above, by mid-May this authority had been taken away from Cpl. Matheson and scenario development and planning was almost entirely directed by Sgt. Kalkat. The extension was also conditional upon obtaining all necessary authorizations under s. 25.1(8) of the Code.
[260] In support of the extension was a report signed by Sgt. Larkin, who was in charge of the undercover shop at the RCMP National Headquarters. In this report, Sgt. Larkin referred to Mr. Nuttall’s brother being killed in Afghanistan, which was untrue. The report also incorrectly indicated M.C. had recently received messages from Mr. Nuttall and that other co-conspirators had been identified during the operation. Sgt. Kalkat did not bring these errors to Sgt. Larkin’s attention even though he reviewed the document before it was submitted for approval. The Larkin report also referred to evidence that Mr. Nuttall might be suffering from a mental illness and the fact that the challenge in the operation was “whether the target has the ability & means to carry out a terrorist act.” The report specifically mentioned the possibility of obtaining an authorization for the commission of offences such as participation in and facilitation of a terrorist activity.
[261] On May 22, 2013, Officer A arranged to meet with Mr. Nuttall to plan the Victoria trip. Mr. Nuttall asked if Ms. Korody could come because she had some religious questions for Officer A. He agreed and Ms. Korody sat very quietly in the rear seat of the vehicle. The spiritual questions concerned whether it would be prohibited by the faith for Ms. Korody to go without the niqab during the recon. Officer A told the defendants that there would be another brother (Officer C) with them in Victoria; he would take them where they wanted to go. Officer A pressed Mr. Nuttall to do some research on possible targets and not repeat what occurred with the train plan. Mr. Nuttall expressed concern that Officer A would not be accompanying them on the recon and, in any event, he felt they were getting ahead of themselves and should delay the recon until after the rockets were built. Officer A insisted that Mr. Nuttall locate his targets first and told him not to worry about the timing issue. Mr. Nuttall appeared to go along with Officer A’s view of things and said that he needed a printer for some maps of Victoria. Officer A said he would look into getting a printer for Mr. Nuttall; however, a decision was later made to deny this request.
[262] As a further means of isolating Mr. Nuttall, and ensuring that his primary contact with the outside world remained the police, Officer A rather cruelly made it clear to Mr. Nuttall that he could not visit his mother and sister while doing the recon in Victoria. Mr. Nuttall told Officer A that his mother had some bad news: one of his brothers was now in jail and his younger sister was pregnant. Despite this situation, Officer A told Mr. Nuttall that he could not do both a recon and a family visit. Mr. Nuttall tried to convince Officer A that this would be a big sacrifice for him, and perhaps would be better optics if he visited family, but Officer A remained steadfast in his negative view of any plan to visit family members.
[263] It was also during this scenario that Mr. Nuttall brought up more obstacles to carrying out any jihadist plan and Officer A again provided solutions. He owed thousands of dollars and knew that it was prohibited to die a martyr with unpaid debts. Officer A suggested that someone else could pay the debts; however, he knew that there was no one in Mr. Nuttall’s life who could pay his debts. Mr. Nuttall said that they could not go to Victoria in the vehicle Officer A had been using because it could be recognized. Officer A told Mr. Nuttall that he had secured another vehicle to take care of that problem. Mr. Nuttall had to be told this several times because he was distracted by other things, such as getting Ms. Korody identification to allow her to buy a gun and being able to prove their marriage because the imam who married them would not return their calls. Mr. Nuttall asked Officer A to find an imam to marry them because they could not live in a Muslim country without proof of their marriage. He also asked Officer A to be Ms. Korody’s wali or guardian after the marriage, and significantly, he agreed to do so.
[264] On May 22, 2013, the investigative team met to discuss the logistics for the Victoria recce. At this meeting Cpl. McLaughlin commented that they would have difficulty convincing the Crown to approve charges against the defendants at this point in the operation. They would have to work hard putting together all the evidence from the transcripts to determine if the elements of an offence had been proven.
[265] On May 23, 2013, Officer A telephoned Mr. Nuttall to ensure he was ready to go to Victoria the next day and to instruct him how to obtain the required maps due to Officer A’s inability to supply him with a printer. (Sgt. Kalkat instructed Officer A that the police could not give Mr. Nuttall a printer due to legal advice from Ms. Devlin, Q.C. that it was too early in the planning stages to provide this help.) The command team had brainstormed issues for Officer A to address in preparation for the Victoria recce. They believed it was necessary for Officer A to impress upon Mr. Nuttall the need to bring his camera, binoculars and maps. Indeed, without constant reminders and instructions from Officer A, Mr. Nuttall often forgot important things. Even when he was carefully instructed by Officer A, Mr. Nuttall would forget what he had been told to do.
[266] Officer A instructed Mr. Nuttall to download the Victoria maps onto a thumb drive or burn them onto a CD, and go into a print shop and print them. Although Mr. Nuttall said he would definitely do that, he did nothing to accomplish this simple task.
[267] On May 24, 2013, Officer A telephoned Mr. Nuttall before he picked the defendants up and was advised by Mr. Nuttall that he had not printed any maps yet and still needed a printer. Officer A called him back and insisted he download the maps onto a thumb drive and take them to a shop to be printed. Mr. Nuttall did not want a shopkeeper to see his map and said he would print it at the hotel on the Island. When Officer A picked the defendants up later that day, Mr. Nuttall said that he had not been able to download any maps and needed Wi-Fi. They parked at a Tim Hortons to download the map but this was not successful because the Google street view map was too large a program to download. After all this trouble with a simple task, Ms. Korody and both Officer C and Officer A instructed Mr. Nuttall to buy a map of Victoria after they arrived at the hotel in Sidney.
[268] During the trip to Victoria by ferry on May 24, which was entirely financed by the RCMP, including all travel, hotel and meal costs, Mr. Nuttall was obviously still unwell from his ingestion of strychnine. He was so sleepy that he could barely keep his eyes open and had to walk with a cane. Along with Ms. Korody’s illness (he said she had cancer), he was having family problems with his mother and siblings and it was all too much for him. Ms. Korody was vomiting all the time and he was not sleeping.
[269] En route to Victoria, Officer A raised P.R. in the context of Mr. Nuttall’s desire to have him killed; however, Mr. Nuttall went off track on a long discussion about British imperialism and concluded that these retaliation killings were not going to do much for the Islamic nation. Ms. Korody was asleep during this discussion.
[270] It is significant that on the way to Victoria Mr. Nuttall again pleaded with Officer A to find him a spiritual advisor. He and Ms. Korody needed spiritual advice about whether doing jihad was the right thing in the eyes of Allah even though their actions might kill people, including innocents. They had only recently realized that their actions might kill people and they had never killed anyone before. Mr. Nuttall suggested to Officer A that the rockets could be launched without warheads and be symbolic in nature (in response to Officer A’s question about what was in his heart); however, instead of embracing this plan with enthusiasm, Officer A reminded Mr. Nuttall about his earlier statements that killing all taxpayers was part of the plan. Mr. Nuttall agreed that soldiers were fair game but insisted the recon would help to ensure no innocents were harmed by the rockets; and he commented that everyone was a potential Muslim convert and this caused him to doubt his plans for jihad. In the end, he maintained a need for spiritual guidance from someone who was qualified to interpret the Quran on these issues. While talking about his need for spiritual advice, Mr. Nuttall abruptly said he had been praying for money because they had not eaten in two days and that very day Officer A had answered their prayers by giving him $200 for groceries. Mr. Nuttall also referred to Officer A’s partners wanting him killed but was assured that this was not the case. In this context, Mr. Nuttall referred to his belief that Officer A had already committed jihad and killed people and was for these reasons given access to the Al Ansar website.
[271] After Mr. Nuttall’s statements concerning his hesitancy to commit jihad, Officer A left the vehicle at Cpl. Matheson’s direction and went up on deck to meet with members of the command team. Cpl. McLaughlin remained in his vehicle to keep watch over the defendants while Cpl. Matheson and Sgt. Kalkat gave Officer A instructions on how to deal with Mr. Nuttall’s need for spiritual guidance.
[272] Sgt. Kalkat testified that he had been in contact with Cst. Mokdad while he listened to the live audio feed and heard Mr. Nuttall’s plea for spiritual guidance. He said that he obtained some instruction about certain aspects of the Muslim faith from Cst. Mokdad that could be shared with Mr. Nuttall in response to the request for spiritual guidance. Sgt. Kalkat testified that he told Cst. Mokdad what had transpired on the ferry and, in response, the constable provided suggestions for Officer A. The sergeant gave Officer A directions as to what to tell Mr. Nuttall, which included such notions as “following his heart”, “if you believe what you are doing is right, it is your destiny and your path is pre-determined by Allah” and that “Allah decides everyone’s destiny. If he does not want it to happen, it won’t”. The sergeant also told Officer A to refer to the plan having to be approved by the “Amir” or prince as this was consistent with terrorist cell behaviour.
[273] Sgt. Kalkat testified that Officer A knew that he had spoken to Cst. Mokdad but he was in a difficult situation and was afraid that if he did not respond to Mr. Nuttall’s pleas for spiritual guidance his cover would be blown. The sergeant only wanted Officer A to give this spiritual guidance if Mr. Nuttall brought up the topic again.
[274] Cpl. Matheson testified that Officer A was not entirely comfortable with the instructions he received from Sgt. Kalkat and that Officer A telephoned Cpl. Mokdad directly to ask for his input. Officer A testified that he had no recollection of any of these events and denied that there was a meeting with Sgt. Kalkat on the ferry deck. He agreed there may have been some telephone contact with Cst. Mokdad on a prior occasion; however, he was vague as to when this may have occurred and could not recall anything about their discussions.
[275] When Officer A returned to the vehicle, he brought up the subject of spiritual guidance without any prompting from the defendants. He related a simplistic view of pre-determination that did not include any notion of free will and essentially quoted Osama Bin Laden’s interpretation of a hadith from the Prophet. Officer A asked Mr. Nuttall what was in his heart and he replied it was the Canadian government’s mistreatment of Muslims. Then Officer A asked him if he believed what he was doing was right and Mr. Nuttall said yes. In response, Officer A said that if the defendants believed in their hearts that Allah was directing them to do jihad, then it was going to happen even though the rest of the world disagreed with their actions:
Like, ah, we need to do what’s in our heart. Like, if we believe what we are doing is the right thing, it’s our destiny, our paths, and don’t -- don’t forget that our path is pre-determined by Allah. Allah chooses for us, we don’t choose it for ourselves.
[276] Officer A agreed that he had not been accurate in describing this aspect of the Muslim faith because he left out the notion of free will. Cpl. Matheson testified that in his view Officer A had crossed the line by inappropriately giving spiritual guidance to the defendants about the Islamic faith and, in particular, by giving the defendants a religious justification for the use of violence.
[277] The defendants were recent converts to the Muslim faith and constantly struggled with issues of what was permitted and what was prohibited by Allah and the Quran. On several occasions Mr. Nuttall had demonstrated indecision about whether it was prohibited to kill anyone even apart from innocents. He often said that the rockets could be symbolic only and not contain any warhead. Yet he was now being counselled towards violent extremism by the police. It is also significant that Sgt. Kalkat’s final C237 report dated June 14, 2013, made no reference to the religious advice that he instructed Officer A to give to the defendants. Unlike previous C237 reports, there are few details surrounding the May 24, 2013 scenario in this report.
[278] Cst. Mokdad testified that he was not consulted on May 24, 2013 by either Officer A or Sgt. Kalkat, and knew nothing of the circumstances surrounding Mr. Nuttall’s request for spiritual guidance on this day. After reading the transcript of Officer A’s statements to Mr. Nuttall in response to his request for spiritual guidance, Cst. Mokdad testified that this was precisely what he had dictated to Sgt. Kalkat in a telephone call that occurred sometime before May 24th. He testified that what Officer A had used to counsel Mr. Nuttall was Osama Bin Laden’s militant, violent interpretation of a hadith of the Prophet Muhammad which Bin Laden used out of context to promote violent extremism. Cst. Mokdad had quoted these passages from Bin Laden to Sgt. Kalkat in response to a simple question about what views militant jihadists hold, not as something to say to the defendants in response to a request for spiritual guidance.
[279] Cpl. McLaughlin testified that he became aware of what Officer A had said to Mr. Nuttall when he returned to the vehicle either through live monitoring or when he was briefed by Sgt. Kalkat or Cpl. Matheson. He testified that he had no recollection of the investigative team ever discussing the propriety of Officer A’s statements to Mr. Nuttall regarding spiritual guidance.
[280] En route home from Victoria on May 25, 2013, Officer A again raised the question of spiritual guidance and reinforced his earlier statements about the will of Allah. This time Ms. Korody adopted Officer A’s view of pre-destination. She claimed that now they had found Allah, there was nothing they could do to stop what happened to them because Allah had chosen this path for them. Nothing happens unless he decrees it. It became apparent in later conversations that the defendants had both adopted Officer A’s simplistic view of pre-determination and the importance of obeying the will of Allah. When Mr. Nuttall told Officer A that they were past the point of no return in regard to their plans, he said they still had a choice. In response, Mr. Nuttall said they had no choice because it was the will of Allah.
[281] In addition, during the recon Officer A introduced the concept of “Amir” into his conversation with Mr. Nuttall. Officer A told Mr. Nuttall that “today was his day” and that he was the “Amir”. Cst. Mokdad had explained to Sgt. Kalkat that terrorist groups have leaders that they call “Amir” but he had no knowledge of the intended use of this term during the operation.
[282] In the briefing after this scenario, Sgt. Kalkat was unconcerned that Officer A was giving spiritual advice to the defendants, particularly on the key question of whether they should commit an act of terrorism that would endanger lives. Instead, he dismissed thoughts that the defendants were getting “cold feet” about a plan to do jihad and rationalized Mr. Nuttall’s concerns as nervousness about meeting Officer C.
[283] What occurred during the Victoria recon further demonstrated Mr. Nuttall’s ineptitude even for the simplest tasks and Ms. Korody’s detachment from what was going on. It should have been readily apparent to the RCMP that Mr. Nuttall was incapable of crafting a plan of action to support a terrorist plot. On arrival in Sidney, Mr. Nuttall had not yet determined where he wanted to be taken by Officer C; he would not know these things until he printed a map but he had no printer. It never occurred to him that he could simply buy a map of Victoria until he received those instructions from the undercover operators. Mr. Nuttall continued to lose track of important items such as his grandfather’s binoculars, his cellular telephone, his laptop charger, and his camera, all of which would have been very helpful during the recon. He forgot where the Parliament buildings were and had to be reminded by Ms. Korody even though they had lived in Victoria for many years. While at the Parliament buildings Mr. Nuttall attempted to videotape potential targets; however, he was completely inept at filming and took shaky unwatchable shots that primarily focused on the ground or the sky. Both the defendants were easily distracted and continually had to be brought back to the “plan” and to the details surrounding it during the travel to and from Victoria. They lacked the ability to focus on the purpose of the recon and had to be directed by the two undercover officers at all times.
[284] Right from the outset of the recce Officer C gave Mr. Nuttall specific instructions about deciding in advance where he wanted to go and how to get there and counselled him that there would be no “driving around in circles.” This is obviously not an issue that would have been raised with someone whom the police believed was competent. I also note that Officer C used this first meeting as an opportunity to create an image of himself as an enforcer and an expert “security man” for the terrorist group.
[285] Further, during the recce it should have been apparent to the police that Mr. Nuttall had the gullible nature of a young child. When Mr. Nuttall suggested to Officer C and Officer A that the recce would put them at risk of being caught and tried for treason, he accepted the operators’ assurances without question that they would take care of any problem and that they would not be caught. Officer A provided no explanation in regard to the measures he had taken to ensure their safety. Nor did he outline the resources that were in place to secure their safety. Officer C merely claimed that he was an expert in this type of work and Officer A backed him up. Mr. Nuttall and Ms. Korody simply accepted everything Officer C and Officer A said at face value.
[286] Officer C learned that Mr. Nuttall and Ms. Korody had become convinced that pilots were dropping chemicals on people because of a “guy” who told them about “chem trails” behind airplanes. Ms. Korody’s immaturity and gullible nature was also evidenced by her story that she had joined a cult that believed aliens were talking to God on their behalf. She became a regent in this religion. Cpl. McLaughlin reluctantly agreed that the defendants had personalities that made them vulnerable in the sense that they were easily led and susceptible to undue influence by the undercover operators.
[287] Mr. Nuttall’s immaturity and naivety were also demonstrated in other ways during the Victoria recon. For example, he offered to eat the maps they had purchased should the police stop them and claimed to be able to hack into the Millhaven Prison’s records to change Omar Khadr’s release date. While at the Parliament buildings, Mr. Nuttall exhibited no understanding of proper tradecraft for a terrorist on a recon. He interacted in an enthusiastic and showy way with the tour guide, and made contact with a police officer who was controlling a protest gathering. He even allowed himself to be filmed by BCTV during the protest. Mr. Nuttall decided that they needed to use aliases on the recon, and curiously chose their own Christian names. These are clearly not actions designed to ensure a low profile. En route back to the Mainland Mr. Nuttall dictated his will; he decided to leave his only asset, his paintball guns, to Officer A so that he could pass them on to the mujahideen for training. Both he and Ms. Korody told Officer A that they got their ideas about jihad from a Rambo III movie.
[288] It would also have been obvious to the RCMP that Mr. Nuttall was completely under the influence of Officer A during the Victoria recon. Officer A continually counselled Mr. Nuttall to “do what was in his heart” and by the time of the Victoria recon, Mr. Nuttall had incorporated this precise phrase in his own discussions about Allah and the Muslim faith. Moreover, it was apparent that Mr. Nuttall’s over-active imagination had bestowed upon Officer A’s advice a high level of religious significance. In this regard, Mr. Nuttall related a story about meeting a Muslim who looked like a black pirate but was in reality the Prophet Gabriel who also advised Mr. Nuttall to do what he felt was right “in his heart”. Officer C reinforced Mr. Nuttall’s belief that the pirate had been a sign from Allah because his name was Gabriel.
[289] During the Victoria recon it would also have been apparent to the police that Mr. Nuttall exerted strict control over Ms. Korody due to their conservative Muslim beliefs about women. He ordered Ms. Korody to do things and she obeyed. He dictated what she wore and to whom she spoke. The control he exercised over Ms. Korody did not appear to be a concern for the police. Instead, they anticipated the control Mr. Nuttall exercised over her would automatically bring her into any of his plans for jihad.
[290] Officer A also exercised strict control over the actions of the defendants while they were in Victoria. At the hotel in Sidney Officer A instructed the defendants not to leave their room or talk to anyone. They were not permitted to call Mr. Nuttall’s family even when he again pleaded that his mother was experiencing great difficulties at that time. Officer A reinforced his spiritual guidance regarding pre-determination when he left the defendants at the hotel as a way of ensuring they would stay focused on their purpose. Again, Officer A’s actions only served to isolate the defendants from outside influences and increased their dependence upon him. When he left the defendants Officer A ended his instructions with the phrase, “it is all in the hands of God” and Mr. Nuttall repeated this mantra over and over.
[291] When cross-examined on this scenario, Officer A denied that it was a concern to the police that Mr. Nuttall was overly influenced by his words and actions. However, Officer A was aware of his influence over the defendants. In my view, Officer A’s influence over Mr. Nuttall was highlighted on the return trip when Mr. Nuttall commented that before he met Officer A all he did was talk about jihad but now things were different because of Officer A.
[292] En route home from Victoria, Officer A pressed Mr. Nuttall to become more organized about his plans and to be more prepared the next time. Officer A told Mr. Nuttall he had to get his plan completed because he was going to meet the “brother” who would be responsible for approving the plan. This was not the first time that Officer A had referred to the partner who was going to decide if the plan was worth pursuing. It was Officer A’s partners who had examined Mr. Nuttall’s failed train plan. In addition, during the trip home Officer A responded to Mr. Nuttall’s references to the rocket plan by presenting obstacles to its completion, thereby sowing the seeds of doubt in the feasibility of the plan that became direct and forceful in Kelowna later in June 2013.
[293] By this point in Project Souvenir the RCMP would have been aware of the extent to which the defendants had accepted the cover story that Officer A was a high level operative in a sophisticated and well-resourced and financed terrorist organization. While alone on the ferry the defendants wanted to smoke but decided against this course of action because it was likely that Officer A was having them watched. Further, Mr. Nuttall expressed the firm belief that Officer C was a mujahideen and Officer A let him believe this. Officer A did nothing to dissuade the defendants from their beliefs about his terrorist organization. Officer A referred to “brothers all over the world” when he assured Mr. Nuttall that wherever P.R. went he would not escape his grasp. This conversation also underlined Officer A’s control over Mr. Nuttall’s actions. Mr. Nuttall was not going to be the one to kill P.R. because Officer A said that this would end his participation in the mission (then the rocket plan). Mr. Nuttall came to this conclusion in spite of Officer A’s provocative statements that if Mr. Nuttall wanted to get P.R., this was going to be done.
[294] Sgt. Kalkat highlighted the influence of Officer A over the defendants in an Investigational Planning Report on Project Souvenir dated June 14, 2013, which addressed the duty to warn P.R. at p. 4:
It is the belief of Sgt. Kalkat that at this stage of the investigation, after considering all appropriate factors, NUTTALL does not pose an imminent risk of serious bodily harm or death to [P.R.]. The recent UCO scenarios have solidified the relationship between the UCO and NUTTALL and it is clear the focus of NUTTALL and KORODY has shifted to their overall terrorist plan which is to be carried out on Vancouver Island. Additionally, with the significant passage of time, from the initial date of the threat and the current and ongoing relationship that has developed between the operator and NUTTALL, it is the belief of Sgt. Kalkat, NUTTALL will not act out without prior permission from the Operator with respect to killing [P.R.]. At this time, NUTTALL is fixated on his Jihad and the focus for NUTTALL has shifted away from killing [P.R.].
[295] Cpl. Matheson had become concerned that the influence exerted by Officer A over Mr. Nuttall brought into question his voluntariness and, in particular, whether he was acting on his own initiative as opposed to being directed by Officer A. In a report on Project Souvenir dated June 3, 2013, Cpl. Matheson wrote:
On May 10 I attended a briefing with [Officer B], Sgt. Buttar, Sgt. Kalkat, Staff [sic] McDonald and Insp. Bond. Bond informed the group that INSET would be taking the lead on scenario development and timing, and they have had the lead since that time. I believe that INSET’s scenarios have placed the targets’ voluntariness in doubt. I will be proposing a course of scenarios that focus on testing voluntariness prior to further evidence gathering. It will be INSET’s decision whether they choose to follow these recommendations or not. …
[296] Cpl. Matheson testified that the INSET scenarios involved Officer A continually pushing Mr. Nuttall to finish his planning and come up with a complete plan. In doing so Officer A was exercising undue influence on the target. Cpl. Matheson recommended that the scenarios move off the topic of the plan and go back to more social activities. Cpl. Matheson also saw that by this time Officer A was exhausted with Mr. Nuttall’s constant talking and focus on violence when they met. It is apparent that the command team failed to have regard to any of Cpl. Matheson’s concerns. Future scenarios became more directed towards focusing Mr. Nuttall on the pressure cooker devices and away from his grandiose schemes.
[297] At the end of the Victoria trip the defendants were no further along in their plan in terms of targets or developing the means to carry out a plan. All of the grandiose schemes proposed by Mr. Nuttall were still under consideration but no additional planning towards actually achieving the goals had occurred. The lack of any concrete progress in this regard was not the subject of concern at the subsequent briefing held on May 27, 2013, which focused on how to move the project further along.
[298] Sgt. Kalkat believed that there was at this time no imminent threat posed by the defendants, and in discussions with Supt. Bond, a decision was made to withdraw surveillance by E-INSET despite worries on the part of CSIS that continuing surveillance was necessary. In the first two weeks of June 2013, CSIS continued to carry out its own surveillance of Mr. Nuttall and the RCMP received no reports of anything significant. It is notable that Sgt. Kalkat did not brief Supt. Bond about many of the statements made by the defendants during the recce in Victoria or specifically about how they behaved. On May 27, 2013, Sgt. Kalkat attended a meeting with Supt. Bond and a CSIS representative to provide CSIS with an overview of the Victoria recce. His briefing with CSIS was very general and did not provide any real insight into what actually transpired.
[299] On May 27, 2013, the investigative team met to debrief the Victoria recce trip. Although Cpl. McLaughlin expressed a belief that Mr. Nuttall’s request for spiritual guidance might be an indication that he was getting “cold feet” about any terrorist plan, Sgt. Kalkat disagreed. He believed that Mr. Nuttall just wanted “Allah to give him the green light” for the plan. No one questioned the propriety of Officer A’s decision to give the defendants religious advice. There was a great deal of discussion about preparing the affidavit in support of the Part VI wiretap and about what happened in Victoria. Ms. Devlin, Q.C. was preparing the Part VI application and was being sent synopses of the outcomes of the scenarios and later transcripts from the one-party consent. The investigative team discussed how the next scenarios could keep the defendants from feeling abandoned by Officer A and, at the same time, enable the police to gauge their progress on a plan. It was the expectation of the investigative team that after the recce Mr. Nuttall would be much more focused on his plan.
[300] On May 31, 2013, Sgt. Kalkat secured Cst. Mokdad’s signature for the one-party consent order in anticipation that he might play the role that Officer D ultimately played at the end of June during the covert interview.
[301] There was no contact between Officer A and the defendants after the Victoria trip until May 31, 2013. Mr. Nuttall was still suffering from the poison and he told Officer A he needed some rest. Mr. Nuttall revealed that he had made no progress on a plan due to the considerable problems he was having with A.A., their Fijian roommate. Mr. Nuttall was still just brainstorming ideas. Despite the trouble the roommate was causing for them, especially Ms. Korody, Mr. Nuttall said he could not seem to make him leave the suite. Mr. Nuttall was completely preoccupied with the roommate problem during this scenario. When Officer A was finally able to focus Mr. Nuttall on the Victoria trip, Mr. Nuttall commented that the trip was a waste of time because he did not learn anything new. Mr. Nuttall reminded Officer A that this had been his belief about the recon trip from the outset. Mr. Nuttall said that since the recon his plans had become bigger; he was going to create a “full on 9/11 plan” where he would die as a martyr. Unable to focus on this plan, however, Mr. Nuttall went back to the roommate and Officer A told him to just get rid of him, “erase him”.
[302] Returning again to the plan, Mr. Nuttall said he was going to need a team of men to launch the rockets and a team to distract the police. In response, Officer A clearly directed Mr. Nuttall to be more realistic in his plans and to come up with a plan that required only four people. Mr. Nuttall was unable to relate to this direction because with his “full on 9/11 plan” he was only “brainstorming”. However, he said the men could come from Afghanistan because Officer A had told Mr. Nuttall that he had mujahideen contacts there.
[303] At the end of the meeting Mr. Nuttall said his plans, and in particular, his rocket plan, was on hold because of the problems created by the roommate. Again, Officer A said he would find a solution to this impediment as he had done with all of the other difficulties raised by Mr. Nuttall. Officer A specifically directed Mr. Nuttall to “get rid of the roommate” and he agreed to do this. Cpl. Matheson testified that he believed Mr. Nuttall recognized his rocket plan was unrealistic and had said as much in discussions with Officer A. However, it was a plan that was “near and dear” to his heart and he did not want to let go of it. Cpl. Matheson believed Mr. Nuttall knew he could not accomplish the rocket plan. I find there was never any evidence of this belief and that it is merely after the fact speculation by Cpl. Matheson.
[304] As described earlier, it was in early June 2013 that Supt. Bond went on leave and Insp. Corcoran took over his role in supervising Project Souvenir. When this occurred, S/Sgt. McDonnell and Insp. Corcoran made it clear to Sgt. Kalkat that the priority in the operation had to be public safety. The sergeant continued to assure them that there was no imminent threat posed by the defendants. Although Insp. Corcoran was generally aware of what had occurred during the months of February to the end of May, he brought himself up to speed by reading the C237 reports.
[305] During Insp. Corcoran’s initial briefings on Project Souvenir, he learned that the investigative team believed that the defendants were not putting a great deal of work into any jihadist plan; that Mr. Nuttall’s plans were considered grandiose and he did little to move them forward; and that these plans were not considered feasible. The unfeasible plans, according to Insp. Corcoran, included the rockets, storming the Esquimalt naval base and hijacking a nuclear submarine. Although he knew that the defendants rarely left their basement suite except to be with Officer A, Insp. Corcoran did not know that Mr. Nuttall had been seeking spiritual guidance from Officer A. The inspector believed that Cst. Mokdad was consulted by Sgt. Kalkat to increase his own knowledge of the Islamic faith.
[306] Insp. Corcoran was not briefed on the discussions that had occurred regarding the use of de-radicalization strategies, which were spearheaded by the undercover shop. He essentially relied on Sgt. Kalkat for all information concerning the project and rarely examined any transcripts of the intercepted conversations. Insp. Corcoran testified that he was aware that the undercover operators were understood by the defendants to be part of a sophisticated group with international connections and that the group was engaged in jihad. The inspector gained this understanding during his briefings with Sgt. Kalkat.
[307] Before going on leave, Supt. Bond briefed Insp. Corcoran on his plan to engage with both the federal and provincial governments should an “attack plan” materialize. Further, he advised Insp. Corcoran about the necessity to plan press conferences and inform the RCMP in other provinces when the defendants were arrested in order to ensure they had time to address issues that might arise in their areas as a consequence of the arrest. Both he and Insp. Corcoran believed that arrests around June 30th were a possibility. Curiously, these discussions occurred prior to any concrete plan emerging from the undercover operation.
[308] On June 4, 2013, Sgt. Kalkat met with members of the investigative team to discuss the timeframe for the operation. At this meeting it was Cpl. McLaughlin’s view that D-Day or “take down day” was eight scenarios away and Sgt. Kalkat believed it was only five away. Even at this stage of the project the sergeant believed that the defendants would settle on July 1st as the date to carry out their plan. The team had already planned the hotel scenarios in Victoria and an interview with the “boss”.
[309] By June 5, 2013, the investigative team was discussing the need to have the disclosure package prepared ten days in advance of July 1st as the arrest date. On June 4, 2013, Insp. Corcoran met with Sgt. Kalkat and Ms. Devlin, Q.C. to get “things rolling” with respect to charge approval and the disclosure package. Supt. Bond had indicated that Project Souvenir had first call on E-INSET resources in priority to other investigations. Thereafter Insp. Corcoran stressed the importance of completing the report to Crown during his meetings with Sgt. Kalkat.
[310] It was also on June 5, 2013 that Sgt. Kalkat wrote to Cpl. Matheson stipulating that in no circumstances was he to continue seeking legal advice from Les Rose, legal counsel to the RCMP. The only source for legal advice was to be Ms. Devlin, Q.C. He did not want to face the prospect of conflicting legal opinions and an obligation to disclose the opinions of Mr. Rose. Cpl. Matheson reluctantly followed this directive, even though he remained concerned about some of the tactics the sergeant was promoting for the scenarios. Ms. Devlin, Q.C. supported the sergeant’s direction and said that until this issue was addressed there would be no further legal advice from her office. On June 6, 2013, Ms. Devlin, Q.C. communicated with A/Commr. Rideout and from that point onward, all of the senior RCMP officers involved with Project Souvenir were engaged in the dispute.
[311] One of the key issues in dispute between Sgt. Kalkat and the undercover shop was whether the undercover officers could continue to give money to Mr. Nuttall and Ms. Korody, not only for jobs but for groceries and other necessities. The undercover shop believed this might be construed as facilitating a terrorist act and inciting and/or enabling Mr. Nuttall to act. It was only in the last stages of the operation that Sgt. Kalkat instructed the undercover shop that no money was to be paid to Mr. Nuttall.
[312] Sgt. Kalkat testified that he did not know what legal opinions Mr. Rose had provided the undercover shop and was not interested in reviewing those opinions. This attitude is surprising considering that S/Sgt. Joaquin, Insp. Mann and C/Insp. Abbruzzese had all expressed the view that what the police were doing for Mr. Nuttall to date might be turning him into a real terrorist; someone who actually could carry out a terrorist plot. The sergeant did not appear to be willing to explore this concern despite the views of these very senior and experienced undercover officers. Although he sought legal advice from Ms. Devlin, Q.C. on the issue of paying money to the defendants, the sergeant did not explain to her the undercover shop’s concern that the police were enabling Mr. Nuttall to commit a crime that he would otherwise have no ability to commit. It was only when Ms. Devlin, Q.C. spoke to senior officers in the undercover shop directly that she appreciated and agreed with their concerns.
[313] Supt. Bond knew that senior officers in the undercover shop had sought Mr. Rose’s legal opinion regarding entrapment and he knew generally that the undercover shop had serious concerns that the operation was enabling Mr. Nuttall to do things that he could not otherwise do. He had no direct knowledge of the opinions given by Mr. Rose; however, he was provided with Mr. Rose’s views on Hart and how it might apply to Project Souvenir.
[314] Sgt. Kalkat appeared to ignore or selectively review parts of the evidence coming out of the Victoria recce scenarios. While he acknowledged in his testimony that some of the ideas and past behaviours referred to by Mr. Nuttall and Ms. Korody were “crazy and irrational” and provided insight into their susceptibility to suggestion, he did not recall hearing of this behaviour during the operation and he had not taken the time to read the transcripts to gain a full understanding of what the defendants had disclosed. The sergeant steadfastly denied that these vulnerabilities would have affected the direction that he was taking the project. He believed that the ongoing expression of terrorist views trumped any issues affecting the mental health of the defendants despite his report to Insp. Corcoran on June 7, 2013, that there were no public safety concerns and no imminent threats. Indeed, in his email correspondence with Ms. Devlin, Q.C. on June 10, 2013, the sergeant agreed with her comment that, after reading the Part VI affidavit, Mr. Nuttall looked like a “nut”, but he added that Mr. Nuttall was a “dangerous nut”. I also note that in the same email response to Ms. Devlin, Q.C., the sergeant contrasted the rocket plan with the pressure cooker plan, the latter being “feasible & attainable” contrary to his evidence that he believed Mr. Nuttall was capable of constructing a Qassam rocket.
[315] Between June 1 and 5, 2013, there was a series of telephone calls between Mr. Nuttall and Officer A. During these calls it became apparent that Mr. Nuttall had made no progress on his rocket plan, which appeared to be his current focus. He wanted Officer A to give him money to join a model rocket club and to rent a shop where he could make the rockets. Despite Officer A’s instruction that no financial help would be forthcoming until there was a concrete plan in place, and a promise that all of the logistics would be taken care of if Mr. Nuttall came up with a realistic, feasible plan, Mr. Nuttall was never able to put together a plan for the rocket mission. Mr. Nuttall never took any steps towards joining any rocket club. Officer A also learned through Mr. Nuttall’s telephone calls that he and Ms. Korody were still very lonely and really appreciated when he called them.
[316] On June 5, 2013, Mr. Nuttall again sought spiritual guidance from Officer A in a telephone call. He had a re-occurring dream that he was on the Coho ferry when it sank; however, this time he was saved by someone whom he believed might be the Prophet Muhammed. Mr. Nuttall wanted Officer A to tell him if he was saved by the Prophet and whether this was a sign that he was going to die soon. Officer A promised to get him spiritual guidance on this matter, but instead of contacting an imam Officer A made something up after getting casual advice from a person he met at a mosque. In this regard, Officer A told Mr. Nuttall that it was really lucky if this was the Prophet, which Cst. Mokdad testified is what mujahideen believe and discuss on the Al Ansar website. Despite his knowledge of the importance Mr. Nuttall placed on this dream, Officer A merely told him something that would encourage Mr. Nuttall to pursue a mission rather than abort any plan due to the prospect of his own death.
[317] Lastly, Officer A continued to lead Mr. Nuttall on about a job prospect he had for him. Mr. Nuttall said he needed to make some money because they were desperately short of funds. Although the police continued to discuss giving Mr. Nuttall paid work, he did no further jobs for Officer A after April 2013.
[318] On June 6, 2013, there was meeting between Mr. Nuttall and Officer A that was regarded as a key scenario by the investigative team because it was during this meeting that Mr. Nuttall provided Officer A with a hand drawn diagram of a rocket and a homemade explosive device that used a pressure cooker as a container. These drawings were copied from an article in Al Qaeda’s online Inspire Magazine, which contained instructions on how to make homemade explosive devices. He also produced a shopping list for the devices.
[319] The diagrams of the rocket and the pressure cooker were not complete and could not have produced a workable explosive device as drawn by Mr. Nuttall. However, the RCMP became fixated on the pressure cooker devices as a viable, feasible plan for Mr. Nuttall. While Mr. Nuttall only regarded the pressure cooker devices as “a tester and not the real thing” in preparation for the real plan regarding the rockets, the police set about to convince him and Ms. Korody that this was the only plan that could possibly succeed and to discourage them from considering any other plan. Significantly, Sgt. Kalkat made no mention of the pressure cooker devices as a “tester” in his final C237 report.
[320] The pressure cooker devices became the RCMP’s focus despite the fact that this was the only meeting at which Mr. Nuttall brought up the pressure cooker devices as any part of his ideas for jihad. Further, both before and after this date, he continued to promote the rockets and the other unrealistic ideas without any mention of pressure cookers. It was the undercover operators who brought up the pressure cooker devices in the Kelowna scenario later in June 2013 and not Mr. Nuttall. It is also important that at this point in the project the RCMP were fully aware that the defendants lacked the money to achieve any of their ideas, including carrying out a recce; they only had money for the basics such as rent and food.
[321] The discussion between Officer A and Mr. Nuttall at the June 6 meeting illustrated Mr. Nuttall’s rudimentary and often incorrect understanding about explosives and how to make them. Officer A corrected Mr. Nuttall’s statements because he had a background in explosives and in the end he suggested that C4 could be made available to Mr. Nuttall through Officer A’s contacts. Officer A testified that public safety was the impetus behind their offer to provide the C4. The RCMP did not want Mr. Nuttall experimenting with homemade explosives. However, there was never any evidence that Mr. Nuttall was capable of making an explosive substance or that he had taken any steps towards making an explosive substance or device on his own. While early on in the project he had told Officer A that he had made explosives with his brother, Mr. Nuttall subsequently acknowledged that he had not made any type of explosives in the past and did not know how to construct an explosive device. In later telephone calls with Officer A, Mr. Nuttall expressed a desire to make an explosive out of cow manure but it was acknowledged that such a process would be far too complicated and long term to be feasible for Mr. Nuttall. It did not appear that Mr. Nuttall appreciated Officer A’s offer regarding the C4 as he continued to refer to the need to learn how to make black powder or some other type of explosive.
[322] On or about June 8, 2013, Sgt. Kalkat began making plans to remove the defendants from their basement suite to facilitate the installation of the audio and video devices approved by the Part VI order. This plan had two objectives: (1) to permit a covert entry to the suite; and (2) to get the defendants away from the distractions of their home and their roommate so that their focus would be on a terrorist plan.
[323] Sgt. Kalkat left Cpl. McLaughlin in charge of the out of town aspects of the scenario because he was supervising the covert entry to the basement suite. However, he dictated the objectives to be accomplished and was in contact with the investigative team by telephone as the scenarios played out. It was based on a directive from Sgt. Kalkat that the undercover officers were told to actively encourage Mr. Nuttall to adopt the pressure cooker devices as the only feasible, viable plan and, on the other hand, to actively discourage the rocket plan as too expensive, risky and time-consuming. Cpl. McLaughlin testified that this was essentially Sgt. Kalkat’s decision and he had no part in it.
[324] Sgt. Kalkat testified that these directions were due to the public safety risks attached to the rocket plan; the police could control what occurred with a plan to explode pressure cookers. Moreover, the sergeant believed it would be unrealistic to keep an undercover operation going long enough for Mr. Nuttall to construct a rocket. I do not find these explanations credible. First, up to this point in the project there was no evidence that Mr. Nuttall was capable of constructing a rocket. Second, there was no evidence he had the money or the equipment necessary to construct a rocket or that he had taken any steps to acquire any such equipment. Third, there was no indication that there were any other non-police terrorists waiting to provide assistance to the defendants. As the sergeant had already concluded, the rocket plan was neither feasible nor attainable; there was no risk to public safety that required the police to redirect him towards a viable terrorist plot.
[325] The original plan favoured by Sgt. Kalkat to get the defendants out of their home was to fly them to Calgary; however, Ms. Devlin, Q.C. considered this plan was “extreme” and the defendants “had no money and so [the police] would be paying for them.” She was also against the plan due to difficulties enforcing the Part VI order in Alberta. Sgt. Kalkat took her advice in part and moved the scenario to Kelowna.
[326] Although Sgt. Kalkat testified that there was a substantial difference between flying the defendants to Calgary and driving them to Kelowna, both plans involved spending considerable resources on them. The sergeant referred to undercover operations by the Integrated Homicide Investigation Team (“IHIT”) as routinely involving large expenditures, including hotel stays, in connection with their targets as a comparison. He also referred to exposing the defendants to the public on a flight as a risk; however, the first preference for travel to Kelowna was either bus or plane and driving only became necessary because Ms. Korody did not have the identification required for such travel. Apparently, moving the scenario to Kelowna did not satisfy the concerns raised by Ms. Devlin, Q.C. who replied to the sergeant’s alternative plan to go there on June 14, 2013 as follows:
Well of course you decide how to do all the investigative steps. My concern is that the targets have no resources or ability to do a thing that cost money. I think it important to keep in mind this is not a IHIT file.
My concern is the targets are both vulnerable and arguably prepared to say anything.
[327] Notwithstanding the command team’s pursuance of the Part VI intercept, on June 7, 2013, Insp. Corcoran directed Sgt. Kalkat to consider the next course of action if charges against the defendants were not approved. He testified that the most likely result of no-charge approval would be a referral to CSIS to take primary control over the file. The inspector did not believe an overt police approach would have been appropriate in the circumstances because that had been done before in October 2012 and Mr. Nuttall subsequently attempted to purchase potassium nitrate according to the CSIS advisory letter. At the same time the inspector began liaising with other senior officers concerning the execution of the arrests, which he and the investigative team anticipated would occur at the end of June if the project was successful.
[328] On June 10, 2013, Insp. Corcoran met with Sgt. Kalkat and was again assured that the “mitigating strategies” in place at the time were sufficient to prevent any risk to the public. These included surveillance, the cameras outside the defendants’ suite, personal contact with Officer A and a one-party consent order for recording conversations with the operators. Sgt. Kalkat told the inspector that Mr. Nuttall would not do anything without first speaking to Officer A. The inspector testified that it was reported to him that Mr. Nuttall was devoted to Officer A and a close friendship had been achieved. At this time the police officers monitoring the cameras outside of the defendants’ basement suite advised the inspector that the defendants spent most of their time at home and there were only a few occasions when Mr. Nuttall was away from the suite for more than 90 minutes.
[329] On June 14, 2013, Sgt. Kalkat met with Cpl. McLaughlin to establish the specific objectives for the Kelowna scenarios. These included making the timeline for the plan clear to Mr. Nuttall; letting him know that several plans was “no plan”; focusing him on the pressure cooker plan and discouraging the rocket plan as unrealistic; and advising him that Officer A would not fund the rocket plan. The sergeant denied that one of the objectives was to advise Mr. Nuttall he could not bring up more plans and targets. However, Cpl. McLaughlin testified that he noted this as one of the sergeant’s stipulated objectives for the Kelowna trip.
[330] It was also one of Sgt. Kalkat’s directions that Officer A advise Mr. Nuttall that the “blood, sweat and tears of fellow brothers” went towards these missions in order to gauge if he was serious about his plan. Cpl. McLaughlin testified that this objective was to be given special emphasis and passed on to Officer A as a directive. Officer A interpreted this instruction as a direction to challenge Mr. Nuttall on his waste of time and resources during the Kelowna trip.
[331] Sgt. Kalkat also instructed Cpl. McLaughlin that Officer A should advise Mr. Nuttall that he would provide a location to build the pressure cooker devices and the C4 to explode them. Insp. Corcoran was aware that C4 would be promised to the defendants in reference to the pressure cooker devices. The inspector was not aware that the undercover officers would be encouraging the pressure cooker plan while discouraging the rocket plan. Further, Sgt. Kalkat approved a cover story that Officer C was an expert in security and had used other associates to debug the Kelowna “safe suite”, which was set up to facilitate internet use by the defendants while being monitored by the RCMP. The defendants were to be told that the organization had made the internet connection in this hotel room completely secure.
[332] These directions were given to the undercover operators and they followed them during the Kelowna scenario, which entailed Officer A picking up the defendants on June 16 and driving them to Kelowna; picking up Officer C at the airport; putting the defendants up in a hotel suite with a separate “safe room” where they could focus and work on their plan; and driving them back to Surrey on June 19, 2013. Officer C and Officer A pressured the defendants to adopt the pressure cooker plan and discouraged them from considering any of the other grandiose schemes that Mr. Nuttall proposed. Further, both Officer C and Officer A confronted Mr. Nuttall about the lack of feasibility in his rocket plan, as well as the plan to storm the naval base and hijack a nuclear submarine, and praised the pressure cooker plan as realistic, doable and feasible. Officer A did not wait until he reached Kelowna to offer C4 to the defendants. A firm promise was made en route to Kelowna.
[333] Prior to the Kelowna trip and also en route, Mr. Nuttall again demonstrated how little he knew about explosives and the rudimentary nature of his ideas in this regard. Mr. Nuttall still believed that he could easily make cow manure into an explosive. He had no idea how much black powder or C4 he would need for his rockets. He had no idea where to get explosives. However, the police again eliminated Mr. Nuttall’s lack of knowledge and resources as obstacles by promising to provide him with all the C4 that he would require.
[334] Officer A also did whatever it took to convince the defendants that they both should go on this trip. He played up the trip as a nice vacation and held out seeing Officer C as an incentive, knowing how much they liked Officer C. Officer A was insistent that they both come, even when Ms. Korody uncharacteristically telephoned Officer A to explain that she was quite happy to stay home and let Mr. Nuttall go alone. It is a testament to the control exercised by Officer A over the defendants, and their complete trust in him, that they agreed to go on a trip without knowing where they were going. Officer A did not advise the defendants of their destination until they were in the vehicle driving to Kelowna.
[335] The RCMP’s expectations concerning the Kelowna trip were not met. Even with optimum conditions, the defendants could not focus on any plan for jihad when they were alone. Despite the fact that Officer A set up a “safe room” with a secure internet connection, and told the defendants that his expert in these matters, Officer C, and the other brothers had worked very hard on this room, the defendants did not work on their plans and made no progress towards any of the objectives they constantly discussed with Officer A. Apart from a couple of hours during the three days and nights at the hotel, the defendants did no research on a plan and did not formulate any concrete steps towards accomplishing a plan. Their discussions about the mission were no more than brainstorming ideas that were patently unrealistic and these only occurred when Officer A was actually with them in the hotel room.
[336] Even when Officer A challenged Mr. Nuttall’s lack of work on a plan with a frustrated, angry tone of voice and demeanour during a private meeting, he continued to play online video games in preference to working on a mission. It was only in the early morning hours after the confrontation by Officer A that Mr. Nuttall yelled at Ms. Korody to do some research on the plan because otherwise they were going to be “dropped” and “deleted” by Officer A and his partners.
[337] It was also during Officer A’s confrontation with Mr. Nuttall that Officer A chided him for putting obstacles in the way of any plan and saying he would do things but never actually doing them. He told Mr. Nuttall to be like Officer C who did what he was told without question. Mr. Nuttall was told that he had disrespected Officer C, who had expressly identified himself as a mujahideen, by not trusting the security in the safe room. Officer A underlined the size and resources of the sophisticated group when he told Mr. Nuttall that a great many associates had worked on the safe room to ensure the internet connection was secure. All of these statements sent a clear message to Mr. Nuttall that he was in trouble with Officer A and the rest of this sophisticated terrorist organization.
[338] During the Kelowna trip the defendants told Officer C that they felt pressured by Officer A to support a plan that was quick and that he was not interested in helping them with their long-term plan to build rockets, which was their dream. Ms. Korody said that Officer A was rushing them. Mr. Nuttall told both Officer C and Officer A that before anything could happen he and Ms. Korody had to have weapons training and target practice so they could be safe while they made the explosives for the rockets. Officer A agreed that this was a recurrent theme with Mr. Nuttall; he would agree to work towards a plan and then come up with obstacles to accomplishing the plan and it would all fall apart. As a consequence, Officer A eliminated every obstacle in the way of accomplishing a plan that Mr. Nuttall brought up.
[339] When Officer A confronted Mr. Nuttall about his work ethic and the waste of time and money that was spent on him (by the mujahideen) during the Kelowna trip, he became confused about what Officer A wanted from him. Mr. Nuttall asked Officer A if he should be looking for targets and Officer A said to focus on what he wanted to build. Officer A reminded Mr. Nuttall that he would get him the C4 and all he had to do was build the pressure cooker devices. Immediately thereafter he told Mr. Nuttall that he should be like Officer C who did precisely what he was instructed and wasted no time talking for hours and asking questions.
[340] Moreover, Officer C worked with Officer A in tandem to direct Mr. Nuttall towards the pressure cooker idea. It is quite clear from Mr. Nuttall’s statements to Officer A during the drive home from Kelowna that Officer C had convinced him that this plan was the one to do and Officer A immediately endorsed Officer C’s opinions as trustworthy. Officer C had also reinforced the idea that he was subordinate to Officer A and did what he was told. Officer C tied doing what Officer A told him to do without question to following his destiny as Allah commands, which mirrored Officer A’s spiritual guidance during the Victoria recce. Officer C said to the defendants:
Well, I was asked to go do something and I went and I did it. So if Allah has a plan for me, that’s it, Allah’s plan for me.
[341] Sgt. Kalkat was aware of the tactics used by Officer A and Officer C and approved of them. During the scenarios he received updates, and on the morning of June 18, 2013, he provided additional instructions for Officer A to follow, which included offering a job to Mr. Nuttall and a contact who could provide a storage locker and making Mr. Nuttall aware of the significant cost associated with acquiring C4; and that Officer A was again vouching for him with his associates.
[342] Cpl. McLaughlin testified that Sgt. Kalkat wanted Officer A to tell Mr. Nuttall about getting C4 without disclosing his explosives contact, in order to motivate him. Officer A was to bring up Mr. Nuttall’s previous statements about doing his plan quickly and get clarity as to whether this is what he intended. These directions are reminiscent of Officer A’s confrontation with Mr. Nuttall about the failed train plan. The sergeant anticipated that Mr. Nuttall would infer that Officer A must have special connections and abilities to be able to secure C4.
[343] In my view, Officer A could not have done more to direct Mr. Nuttall in regard to a plan to do jihad during the Kelowna scenario. He led Mr. Nuttall to believe that the only feasible plan was one involving the pressure cooker devices. Even when Mr. Nuttall said he did not want to do the pressure cookers, Officer A continued to talk about them as the feasible plan versus the unrealistic rocket plan. Although Mr. Nuttall later referred to using the pressure cooker devices as distractions for the larger explosions involving the rockets, these discussions only occurred when Officer A was present in the hotel room and after both Officer C and Officer A had pressured Mr. Nuttall to adopt this plan. The defendants did some research on C4 while in the safe room; however, this work was short lived and occurred after Officer A confronted Mr. Nuttall about wasting time and money doing nothing. Indeed, by the evening of June 18, 2013, nothing of any substance had been accomplished by the defendants with respect to any plan as noted by Cpl. McLaughlin who was monitoring the video and audio feeds that day:
Writer decided not to have operator return to the hotel room to attempt to achieve objectives planned as targets had spent a good portion of the afternoon in bed, had not worked on their plan further following [Officer A’s] visit in the morning, and had failed to be ready for [Officer A’s] visit and dinner plans, and showed a lack of responsibility and respect to the operator by not being prepared for his arrival nor answering his calls. …
[344] Officer A skillfully manipulated Mr. Nuttall with regard to the pressure cooker plan when they were together in Kelowna. He specifically moved Mr. Nuttall on to the topic of where he was going to plant the devices when it was quite clear that Mr. Nuttall had made no commitment to this plan. In response, Mr. Nuttall appeared to accept that he was in fact going to do this plan and brainstormed sites, but ultimately he returned to the rocket plan on the way back to Surrey. The defendants’ almost frantic discussion about planting the devices in the bathroom of a bar while Officer A hovered over them in the hotel room epitomized the low level of discourse of which they were capable. A significant problem, and one which gave rise to a lengthy discussion, was how to order drinks in the bar without actually ingesting alcohol in violation of their Muslim faith.
[345] Officer A also systematically eliminated every obstacle standing in the way of Mr. Nuttall accomplishing a plan involving pressure cookers: he promised C4, and he promised that Officer C would take care of the electronics for a detonator. He promised he would find them a place to make the pressure cooker devices and transport them to wherever they wanted to plant the devices. Officer A also directly related the C4 to the pressure cooker devices when he discouraged the rocket plan. His organization was not going to fund something unrealistic like rockets. Further, Officer A’s angry confrontation with Mr. Nuttall led him to believe that if he did not follow Officer A’s directions, despite his own wishes in regard to the rocket plan, he and Ms. Korody would be killed (referred to as “deleted”) by the terrorist organization they had become associated with. However, in spite of this belief, Mr. Nuttall did not have the capacity to actually focus on crafting a plan. Significantly, Officer A’s real frustration and dislike of Mr. Nuttall came through in this confrontation.
[346] On the way back to Surrey Officer A reinforced his directions to Mr. Nuttall in a number of ways. He chastised Mr. Nuttall for wasting the resources of the fighters who made great sacrifices to help him with a plan to do jihad. Officer A adopted Sgt. Kalkat’s line that money to finance jihad came from the “blood sweat and tears of the mujahideen”, but he expressly related this waste of money to the defendants’ laziness during their stay in Kelowna. Officer A clearly gave Mr. Nuttall the message that he and his associates expected results that had not been forthcoming. He grilled Mr. Nuttall about his rocket plan and pointed out to him all of the difficulties with this unrealistic idea that could not be overcome. He gave a clear message to Mr. Nuttall that the only plan he would support was one involving pressure cooker devices. He continued to compare Mr. Nuttall to Officer C and counselled him to use Officer C’s ability to follow his directions and get things done as an example to emulate. When the defendants were left alone in the vehicle, it was clear that they had gotten the message that their rocket plan had to be scrapped in favour of Officer A’s pressure cooker plan and, further, that they felt ashamed that they had wasted the resources of the mujahideen by doing no work on a plan in Kelowna. Moreover, their demeanour showed they were clearly devastated by this development.
[347] Throughout the Kelowna scenario the issue of spiritual guidance was prominent in the discussions between the defendants and the operators. On the drive to Kelowna, Mr. Nuttall referred to one’s conversion to the Muslim faith as “blood in blood out” like the Hells Angels. Once you were in only death could lead you out. Officer A expressed agreement with this aspect of the religion and added that even after death you remain part of Islam. On arrival in Kelowna Mr. Nuttall asked Officer A if he had discussed his Coho ferry dream with the spiritual advisor and Officer A replied that when the Prophet appeared in his dream this was a lucky sign and it did not mean that his death was imminent. Officer A testified that he said this to make Mr. Nuttall believe he would not die in the mission.
[348] That night Mr. Nuttall expressed concern about targeting women and children and both Officer C and Officer A assured him that they would take care of that problem. The next morning (June 17), Mr. Nuttall told Officer C that he and Ms. Korody were in a moral dilemma about doing jihad; they were confused about the conflict between killing oneself, which is prohibited, and dying a martyr, which is praised by the faith. In the same conversation, Officer C told the defendants that Officer A was having doubts about them and whether they were serious about jihad. Mr. Nuttall again referred to Officer A’s promise to find him a spiritual advisor but assured Officer C that they would both die for him and Officer A. In later discussions about the waste of time and money contributed to the defendants’ work, Officer A attached religious significance to their laziness; it was haram (forbidden) to spend money just for the sake of spending it, he counselled. Lastly, both Officer C and Officer A contributed to Mr. Nuttall’s belief that the end of the world or the Day of Judgment was upon them.
[349] The June 20, 2013 investigative team briefing after the Kelowna trip clearly showed that the command team was aware that the operators had actively discouraged the rocket plan as unrealistic and had pushed the pressure cooker plan as the only feasible plan. Insp. Corcoran commented that the operators had to work hard to get the rocket plan out of Mr. Nuttall’s head. They were concerned that even with these clear directions Mr. Nuttall’s only real motivation was the next meeting with Officer A. Cpl. McLaughlin observed that the fact the defendants were doing things to please Officer A and others raised concerns that drilling down on the pressure cooker plan while discouraging Mr. Nuttall’s other plans would amount to entrapment. They were generally unhappy with the lack of progress made by the defendants on a plan and referred to Mr. Nuttall’s ongoing and repetitive rhetoric. Nevertheless, the investigative team decided to continue with the project regardless of the obvious limitations in Mr. Nuttall’s ability to carry out any plan without significant help from the police.
[350] Sgt. Kalkat was particularly displeased with the way Cpl. McLaughlin had handled the Kelowna trip and, in particular, his failure to stand up to the undercover shop in order to accomplish the team’s objectives. Moreover, he was very upset that the defendants were smoking marihuana and getting high and were unmotivated at the RCMP’s expense.
[351] At this meeting there was still discussion about paying Mr. Nuttall for jobs and whether this would constitute facilitation of a terrorist activity; however, the investigative team only considered a s. 25.1 authorization in regard to possession of the C4, not for any other possible offence. In any event, Sgt. Kalkat regarded the s. 25.1 authorization to be the undercover shop’s responsibility and the legal advice from Ms. Devlin, Q.C. was that an authorization was not required in order to pay money to the defendants. Cpl. McLaughlin believed that the police should not be giving Mr. Nuttall the money he asked for to build the pressure cooker devices because it would amount to paying him to commit a criminal offence. At this point in the operation he appeared to be agreeing with the undercover shop’s position on paying money to the defendants.
[352] The investigative team was also concerned that given Mr. Nuttall’s slowness to commit to a single, feasible plan, it might be necessary to continue beyond June 30th and into Ramadan, a Muslim religious holiday that extends for several days in July. Because Officer A would not be available at this time, there was a suggestion that Officer C take over. In response, Insp. Corcoran suggested it would be better to start over with a more subservient undercover operator to permit Mr. Nuttall to be the leader. In this way the investigative team could test his voluntary participation in a plan. Sgt. Kalkat believed that Officer C played that type of role.
[353] On June 20, 2013, an intercept at the defendants’ home revealed that Ms. Korody had found some money and a discussion ensued as to whether they should use it to buy parts for the pressure cooker devices. At the end of their discussion, Mr. Nuttall agreed with Ms. Korody that they would not use it for the devices. As a result of this intercept, Sgt. Kalkat directed that there be some communication with Mr. Nuttall. Mr. Nuttall was to be asked if he needed money and wanted to do some work for Officer A. Cpl. Matheson disagreed with this direction because he believed the money would be an inducement. In this regard, Cpl. Matheson wrote as follows:
Within the preceding few hours we learned that the targets had access to money and had chosen not to use it for bomb parts. Providing more money to get the targets past their reluctance to purchase bomb parts would not provide good evidence.
Secondly, if we were to give the targets money for a fictitious purpose with the belief that the money would actually be used for bomb parts, we ourselves might be breaking the law in so far as we might be financing terrorism.
[354] Cpl. Matheson’s concerns about offering money to the defendants was rejected by Sgt. Kalkat who instructed, through Cpl. McLaughlin, that Officer A be directed to telephone Mr. Nuttall and ask if he needed money for groceries and cigarettes and, depending on the reply, offer him money for that purpose. When Officer A telephoned Mr. Nuttall he said he did not need money for groceries and he was expecting his welfare cheque soon.
[355] Sgt. Kalkat pursued the question of giving money to the defendants with Ms. Devlin, Q.C. on June 21, 2013. After consulting with S/Sgt. Joaquin and other senior officers, she provided the following opinion in response to Sgt. Kalkat’s request for advice:
We do not see a need for a s. 25.1 exception as there is no actual criminal act. But, we do agree with Ross [Joaquin] that under these unique circumstances we are engaging in what one will no doubt argue was police generated crime. Eg. The target has no means to buy something so we give him the money to do so and then try to argue that it is evidence he is committing the crime. It would not satisfy even an “attempt”.
… we suggest that you continue with the UC meets but not enabling the target to do what he otherwise could not do. You have the benefit of the Part VI so you should try to stimulate the conversations when the targets are alone. That is really the best means to gather the evidence.
This is a particularly difficult situation because you have a person who can do nothing without the assistance of the police. The best approach is to continue to meet and monitor the conversations following the meets.
[356] Sgt. Kalkat agreed that he had fully briefed Ms. Devlin, Q.C. on the operation, and, in particular, what had occurred in Kelowna. While he agreed with her assessment about the optics of paying money to the defendants, the sergeant disagreed with Ms. Devlin’s view that the defendants could do nothing without police assistance.
[357] Ultimately, a direction came from Insp. Corcoran that no further monies or support would be given to the defendants. This occurred in consultation with C/Supt. Abbruzzese and A/Commr. Gresham, who wanted to be consulted first if any money was to be paid. (A/Commr. Rideout was away and A/Commr. Gresham was taking his place temporarily.) C/Supt. Abbruzzese also directed that no groceries be purchased for the defendants.
[358] Notwithstanding Insp. Corcoran’s direction, the defendants were provided with groceries and cigarettes by Officer A, which effectively freed up their otherwise scarce resources for the purchase of the pressure cookers. Further, the police continued to assist them in very significant ways as will be discussed below. Sgt. Kalkat was always firmly of the view that providing money and groceries to the defendants was acceptable. Further, he testified that while Supt. Bond and Insp. Corcoran oversaw the project, it was his decision as command leader that had to prevail.
[359] Until the money question was settled, Sgt. Kalkat directed there be no contact between Officer A and the defendants. As a consequence, a planned meeting on June 21, 2013 was cancelled by Officer A. The monitoring team overheard Mr. Nuttall express anger at Officer A’s decision to cancel their meeting and strong feelings that they did not need Officer A and could carry out their terrorist plans on their own. This information made its way to Sgt. Kalkat who deemed it was necessary for public safety reasons to instruct Officer A to telephone Mr. Nuttall and apologize for cancelling the meeting and provide an excuse. Cpl. Matheson disagreed with this approach. He believed it was a good opportunity to determine whether the defendants would take any steps towards achieving a terrorist objective without police assistance. However, Sgt. Kalkat’s views prevailed. On June 22, 2013, Officer A was instructed to call Mr. Nuttall and pretend to be out of town and unable to meet with him.
[360] At the same time as the payment of money was being debated, Sgt. Kalkat decided to replace Cpl. McLaughlin as the primary investigator. This decision was, in part, due to his dissatisfaction with Cpl. McLaughlin’s handling of the Kelowna scenarios. He appointed S/Sgt. Kassam as co-primary but in reality the staff sergeant took over Cpl. McLaughlin’s role as the intermediary between the investigative team and the undercover shop. In the final week of Project Souvenir it was S/Sgt. Kassam who briefed Sgt. Kalkat as to what was occurring during the scenarios. S/Sgt. Kassam was not a trained undercover operator or a cover person; however, he was a Muslim and had extensive prior experience supervising IHIT undercover investigations. Sgt. Kalkat believed that S/Sgt. Kassam could bring more experience to the project and could mentor Cpl. McLaughlin. He also agreed that S/Sgt. Kassam was a “closer” and would quickly bring the undercover operation to a successful conclusion. Insp. Corcoran testified that Sgt. Kalkat brought in S/Sgt. Kassam because of his experience and because he would effectively bring the operation to a close.
[361] On June 21, 2013, Sgt. Kalkat and S/Sgt. Kassam sought clarification from Ms. Devlin, Q.C. over the telephone about the issues surrounding the payment of money to the targets. Sgt. Kalkat testified that the following memo to file created by Ms. Devlin, Q.C. is an accurate reflection of her comments to them:
I explained to them that our concern was that the RCMP were enabling the target to commit the crime. Due to the unique circumstances of the target (no money, no friends, on welfare, somewhat vulnerable) without the assistance of the RCMP he cannot do a thing. I recommended that the police not give the target money as they would be enabling him. If the target really wants to acquire an item he can figure out how to do so or at least discuss it with his wife. I said use the wire to collect evidence.
Bill canvassed getting a s. 25.1 exemption but I said there was no criminality to seek exemption for. As Bob Prior and I discussed with S\Sgt. Joaquin on Friday June 21, 2013, the issue is not entrapment or commission of a criminal offence. The real issue is that, based on these unique facts one could easily argue that the RCMP enabled the target to do what he otherwise could never do.
Sgt. Kalkat suggested to me that this was what they did in Project [S]. I had previously discussed the evidence on that file with [C.M.] so was aware of the case. In [S], there were two persons clearly conspiring with each other to commit an act. They had extensive discussions about how they were going to do things. There was evidence of an agreement. In this case, there is no such evidence. What the police have is the target speaking in the presence of his wife and she is basically going along. One could argue that there is insufficient evidence of an agreement.
[362] Sgt. Kalkat did not agree with Ms. Devlin’s assessment that Mr. Nuttall had no friends and could do nothing without help from the police; however, he agreed that she was well briefed on what had transpired during the project to date.
[363] On June 24, 2013, Sgt. Kalkat announced that he was appointing S/Sgt. Kassam as co-lead investigator for Project Souvenir. After this date it was S/Sgt. Kassam who took the lead in regard to scenario development. Cpl. McLaughlin was on leave from June 22 to June 26, 2013, and learned about S/Sgt. Kassam’s appointment when he returned to work.
[364] S/Sgt. Kassam was now directing the investigation, even though he had not yet read the transcripts from the previous scenarios nor attended any of the briefings. Significantly, he was unaware of the objectives and the outcome of the Kelowna scenarios. Due to the timing of his appointment, for the most part S/Sgt. Kassam relied on the scenario outlines, Officer A’s notes and the minutes of the briefings.
[365] At his first briefing with the investigative team on June 24, 2013, members of the investigative team provided input as to what had gone on during the project to date. Although S/Sgt. Kassam had only a limited recollection of the events, he testified that during this meeting he heard of the team’s frustration with Project Souvenir based on the failure of Mr. Nuttall to commit to a plan after months of undercover work. The members of the team described Mr. Nuttall as someone who was all talk but no follow through; he was full of jihadist rhetoric with Officer A. He continually went back to grandiose and unfeasible plans such as building Qassam rockets and raised obstacles to carrying out any plan, such as a need for training. S/Sgt. Kassam questioned whether these were just excuses or was he a legitimate threat. S/Sgt. Kassam was also generally aware that the investigative team felt Mr. Nuttall was not very motivated and was a gamer. S/Sgt. Kassam also recalled that there was a discussion about the undercover operator giving spiritual guidance to Mr. Nuttall; the impropriety of acting as religious advisors in regard to terrorist acts; and the need for the defendants to come to their own conclusions about the Islamic faith. In addition, he recalled that the team discussed the fact that up to this point in the operation the defendants had taken no practical steps to put a plan into action. The question was whether Mr. Nuttall would actually carry out a plan.
[366] S/Sgt. Kassam was also advised of some of the defendants’ antecedents and vulnerabilities, including their past drug addiction, their socio-economic status and dependence upon social assistance, and their dependence upon methadone. He also agreed that at this briefing there was a discussion about the defendants’ current use of illegal drugs.
[367] S/Sgt. Kassam agreed the consensus of the group was that the rocket plan was not realistic. However, it was his objective as the primary investigator to have the defendants come forward “with some sort of plan.” Flushing out a “simple plan” became the goal of the last week of the operation despite S/Sgt. Kassam’s testimony that the team would only be trying to assess whether the defendants had such a plan. He believed it was still necessary to push forward with the operation to assess the risk posed by the defendants if they demonstrated a commitment to carry out a plan. He also believed that despite the “challenge” encounter with Mr. Nuttall in Kelowna, a further “challenge” would be needed to flush out their level of risk.
[368] In spite of the obvious indications that the defendants would not likely go beyond mere talk about jihad without considerable assistance, control and pressure from the undercover operators, the command team, under the direction of their new lead investigator, decided to press on with further scenarios designed to generate sufficient evidence to charge them with conspiracy and other terrorism offences.
[369] There appears to have been no consideration of an exit plan for Project Souvenir at this time. Although S/Sgt. Kassam testified that the risk was inherent in the defendants’ ongoing talk about carrying out a terrorist act “in their homes”, he ignored the fact that Mr. Nuttall appeared to talk about jihad only when he was with Officer A. There is no evidence from the Part VI interception that the defendants were actively discussing their plans when Officer A was not present.
[370] Sgt. Kalkat testified that Insp. Corcoran was briefed on the plan for the operation going forward and about the legal opinions he had received concerning the payment of money to the defendants. In turn, Insp. Corcoran briefed C/Supt. Abbruzzese. Surveillance from Special “I” was secured from June 24, 2013 to the end of the project, which was projected to be July 1, 2013.
[371] The scenario plan for June 25, 2013 required Officer A to insist that both the defendants be present. Even though Mr. Nuttall told Officer A that Ms. Korody was very sick and had been vomiting all morning, he pressured Mr. Nuttall to get her out of the suite to participate in their meeting. He complied and she came along as instructed. Officer A was to tell the defendants that his partner, who would have to approve the group’s help for any plan, was coming to meet with them in a few days. In preparation for that meeting Officer A had to know what their plan was and their timeline.
[372] Officer A would be gone for Ramadan, which was to begin in mid-July. There was pressure to have the defendants complete and execute their plan before Ramadan, as otherwise a new operator would have to take Officer A’s place. S/Sgt. Kassam had also directed Cpl. Matheson that July 1st was the preferred date for the conclusion of the operation and he wanted Officer A to put pressure on the defendants to accept that date. Cpl. Matheson testified that the investigative team believed that July 1st was a significant day and, if anything would spur the defendants on, having this as their “D Day” would do that.
[373] In accordance with legal advice, Officer A could offer to drive the defendants around to shop for what they required to build the bombs but could not offer to pay for the component parts. The investigative team agreed, however, that it was quite acceptable to pay for the defendants’ groceries thereby freeing up their welfare money for the bomb components. As the scenario unfolded, Officer A was given a new direction not to buy groceries for the defendants but in the end Officer A took them shopping and bought them food and cigarettes because Mr. Nuttall asked to borrow $20.
[374] During the June 25 scenario, which comprised a meeting between Officer A and the two defendants, Mr. Nuttall said he was going to build the pressure cooker bombs like they did in Boston and he required gun powder and guns to carry out this plan. Once again, Mr. Nuttall had forgotten Officer A’s promise to supply C4. Officer A assured Mr. Nuttall that the lack of explosives and guns were two obstacles that he was going to take care of and that Mr. Nuttall did not have to worry about these matters. Officer A pressured the defendants to come up with a date for the explosion. He cornered them into a date before Ramadan by saying that he was going away for this holiday and did not know if he would be coming back to Canada after Ramadan. Officer A raised the question of Canada Day but Mr. Nuttall thought it was June 1st, which would mean they had another year to plan. He was fine with this delay. When Ms. Korody reminded him that Canada Day was on July 1st, he felt this was too rushed and wanted to wait until the following year. The intercepts of the defendants’ private communications at this time revealed that they were considering B.C. Day or Canada Day in 2014 and that they felt 2013 was too rushed.
[375] In my view, Officer A carefully orchestrated a decision that the devices would have to be planted on Canada Day, as otherwise there would be no support from Officer A and his terrorist organization. In addition, Officer A systematically eliminated all of the obstacles that Mr. Nuttall had previously placed in his own path towards executing a plan for jihad. In particular, Officer A said that he would take care of the explosives and the guns; he would drive them around to shop for anything they required to build the bombs; he would give them the tools they needed; he had already found them a place where they could construct the devices; he would take them to Victoria a day prior to locate targets and transport them to the location where they would place the bombs. He would also provide them with a safe place to test their bombs. In addition, Officer A said he would do whatever he could to ensure that the defendants stayed alive after they planted the bombs. It was not going to be a suicide mission.
[376] The investigative team wanted to get the defendants out of their basement suite to construct the pressure cooker devices because they were concerned about them going back to their video games and possibly using drugs. While S/Sgt. Kassam denied any attempt by the police to motivate the defendants by insisting that they work away from home, his notes clearly indicate that it was his intention to keep them motivated and “out of their element to keep them focused” on their plan.
[377] During the planning for the June 25, 2013 scenario, Cpl. Matheson wanted to gauge whether the defendants could actually carry out a plan on their own without the help of the police. Consequently, he asked S/Sgt. Kassam to include as one of the questions posed by Officer A, “Can you do it on your own?” Neither Sgt. Kalkat nor S/Sgt. Kassam approved this question. When asked about his rationale, S/Sgt. Kassam essentially avoided answering the question and deflected with a response that he wanted this to come from the defendants. In my view, the police were afraid the answer would be, “Of course we cannot do it alone.”
[378] On June 26, 2013, a briefing was held to plan the next scenario that would involve Officer A taking the defendants shopping for the bomb components and then to a safe house at the Sundance Motel where they could construct the devices. Because they had Mr. Nuttall’s shopping list, which was printed on teddy bear letterhead, the command team anticipated what items he required and had researched the cheapest locations to find them. This information was passed on to the undercover shop for Officer A’s benefit. The command team also made arrangements for the interview and the trip to Victoria in anticipation of the defendants’ construction of the pressure cooker devices. Cst. Gray revealed that he had read Inspire Magazine and purchased all the items needed for the timers for $8 and it took him 30 minutes of shopping to accomplish this task. Mr. Nuttall did not emulate the constable’s efficiency in his shopping trip.
[379] The undercover shop was tasked with obtaining the consent required under s. 25.1 of the Code for possession of the C4 that was to be provided to the defendants for the pressure cooker devices. No other s. 25.1 authorization was sought.
[380] Insp. Corcoran met with C/Supt. Abbruzzese on June 26, 2013, and reviewed with her the scenarios planned for the trip to Vancouver Island and the planting of the pressure cooker devices. She approved the planned scenarios. However, neither of these officers was aware of what precisely had transpired in previous scenarios; they relied on Sgt. Kalkat’s briefings and were only generally informed of the progress of the project. At this meeting Insp. Corcoran and C/Supt. Abbruzzese also discussed the charge approval process through the Crown office and the necessity of obtaining the permission of the Attorney General of Canada to prosecute the defendants on terrorism charges.
[381] At this time Sgt. Kalkat sought advice from Ms. Devlin, Q.C. about using real C4 in the pressure cooker devices. The concern was that the defendants could not be charged with possession of an explosive device if there was no actual explosive material in the pressure cookers. If they used real C4, the police believed they required authorization under s. 25.1.
[382] By June 27, 2013, Ms. Devlin, Q.C. had confirmed with Sgt. Kalkat and Cpl. McLaughlin that the authorization for a recognizance under s. 83.3 of the Code was being approved and that she should be advised as soon as possible if the defendants were going to be arrested. Sgt. Kalkat testified that he was aware that the defendants could be arrested without warrant pursuant to s. 83.3 if they posed an imminent risk to the public based on a suspicion that they were engaging in or about to engage in a terrorist activity. While he left the legal technicalities to the Crown, Sgt. Kalkat was generally aware of this provision in the terrorism section of the Code. No consideration was given to using this section to arrest the defendants prior to July 1st. By June 28, 2013, A/Commr. Malitsia had approved charges against the defendants under s. 83.2 and s. 431.2(2), s. 83.19, and possession of an explosive device contrary to s. 81(1)(d). Cst. Mokdad testified that he was called on the evening of June 28th by Sgt. Kalkat who asked him to come to B.C. to help with a scenario during which there would be a takedown of the defendants.
[383] During the scenario that followed the briefing on June 26, 2013, Officer A described an elaborate escape plan to the defendants that included getting fake passports within a day. In addition, there was to be a privately chartered plane to secrete them out of the country in the event of any difficulties with the police. Sgt. Kalkat testified that this was done to reassure the defendants that they would survive the mission and act as a calming influence on their behaviour. Regardless of the underlying reason for this elaborate cover story, it was a substantial incentive to go through with the plan. The defendants both desperately wanted to leave Canada to live in a Muslim country. Ms. Korody’s greatest desire was to become drug free and leave behind her dependence on methadone and heroin and she knew this would have to occur if she lived in a Muslim country. Neither defendant wanted to die in the mission and thus having an elaborate escape plan acted as a strong incentive to follow through with it. When Officer A was out of the vehicle and the monitors recorded the defendants’ private communications, it became apparent that Mr. Nuttall believed the passports were to take them to Al Qaeda, which he desperately wanted. Sgt. Kalkat immediately directed that the defendants be told that the passports were only a contingency; however, the escape plan had already had an impact on their psyche. Cpl. Matheson agreed that this must have been an inducement to Mr. Nuttall because it was his ambition to join Al Qaeda.
[384] Officer A’s plan for their survival of the mission was not only an inducement but his ability to put such an elaborate escape plan into place was another demonstration of the power this terrorist organization wielded. Mr. Nuttall came to believe that only someone associated with Al Qaeda had the resources and connections to orchestrate this kind of escape plan and he shared this belief with Ms. Korody in private. This firmly-held conception of Officer A’s terrorist organization, in turn, continued to fuel the defendants’ belief that if they tried to walk away from the plan now or made a mistake they would surely be killed. The fact the defendants held this belief became evident in the interception of their private communications at the Sundance Motel and subsequently in the Sidney motel immediately before the targets were selected.
[385] At this time Supt. Schwartz directed that all future scenarios as of June 27, 2013, be reviewed by him directly to ensure public safety was maintained. He had given assurances to A/Commr. Gresham that this would be done. He was concerned about a number of issues, including the public perception of the use of actual C4 and the other resources that had been poured into the project. Cpl. Matheson testified that he had never heard of this step being taken in past undercover operations. Insp. Corcoran was aware of the superintendent’s directive and he testified that Sgt. Kalkat was also aware of this directive. In meetings with A/Commr. Gresham and C/Supt. Abbruzzese, Insp. Corcoran assured them that there would be 24-hour surveillance of the defendants from then to the end of the project.
[386] What followed for the next three days (June 26, 27 and 28) was the most chaotic and disorganized shopping trip conceivable in spite of several specific directions passed on to the defendants about where to buy items on their list. Even though Mr. Nuttall’s shopping list consisted of a relatively small number of ordinary objects and supplies (batteries, pressure cookers, nails, an electric drill and a driver set), it is quite apparent that absent Officer A’s constant prodding and refocusing Mr. Nuttall could never have completed the job. Over and over he would forget what he needed and what he already had. Officer A was required to make pointed suggestions and give specific directions in regard to the shopping list to ensure that Mr. Nuttall moved forward with the required purchases. Mr. Nuttall was easily distracted and needed to be continually reminded about what had to be done. Ms. Korody was of very little assistance; for the most part she slept in the rear seat of the vehicle. At one point she left the vehicle to vomit. It also became apparent during the shopping trip that Ms. Korody’s doctor had not renewed her prescription for Clonazepam, which was for her anxiety disorder. On the first day of the shopping trip, Ms. Korody appeared with a large sore on her lip that Mr. Nuttall attributed to biting her lip at night due to anxiety.
[387] A shopping trip that was designed by the investigative team to take one or possibly part of a second day to complete, took three days. Officer A’s steadfast commitment to taking Mr. Nuttall wherever he wanted to complete the shopping, however long it took, bordered on ludicrous, particularly because Officer A was posing as an experienced terrorist who had the backing of a sophisticated and well-financed organization. What person of this nature and resources would have spent more than five minutes driving Mr. Nuttall around on a shopping trip? Officer A also had to continue discouraging Mr. Nuttall from contemplating his other plans such as building rockets and storming the Esquimalt naval base and focus him on the pressure cooker devices during the shopping trip. As demonstrated during the subsequent meeting with Officer D, Mr. Nuttall regarded the pressure cooker plan as Officer A’s plan. His plan was primarily the rockets and secondarily blowing up a van. During the shopping trip Mr. Nuttall was so easily distracted from the pressure cooker plan that on the first day, after he was unable to find pressure cookers with a metal lid, he decided to build pipe bombs. It took a great effort on the part of Officer A to lead Mr. Nuttall back to the pressure cooker plan.
[388] Further, without a vehicle the shopping could never have been accomplished. The large and heavy items could not have been carried on foot and, in light of Mr. Nuttall’s frequently expressed fear of being conspicuous, it is unlikely that he would have shopped for bombs parts using public transit.
[389] It also became apparent during the shopping trip, as well as during the private time the defendants spent alone at the Sundance Motel, that there were serious impediments to their carrying out this terrorist plan that were only resolved because of what the RCMP did for them. Both Mr. Nuttall and Ms. Korody were addicted to heroin but were taking methadone. Mr. Nuttall shared Ms. Korody’s methadone prescription, which was dropped off at their home every day in single doses. In order to prevent them from going into physical withdrawal, which is accompanied by severe illness, and thereby incapable of completing the plan, Officer A was required to take Ms. Korody back to their suite each day to receive her methadone. In addition, Ms. Korody’s prescription for methadone had run out and Officer A had to drive her to her doctor’s office to secure a renewal. Even with these additional trips home for methadone, the defendants would run out before the plan was accomplished and they relied on Officer A’s promise to take care of them when they became drug sick. Had Officer A not addressed their drug problems, it is unlikely that the defendants would have been able to construct the pressure cooker devices and plant them on the grounds of the Legislature.
[390] While Sgt. Kalkat testified that Ms. Korody’s symptoms of physical illness exhibited during the operation were related to methadone dependence, he never sought any medical advice on this matter or questioned his own expertise to make such an assessment. Moreover, he gave no thought as to how the defendants’ dependence on methadone would impact their ability to think clearly about their actions. In my view, both Ms. Korody and Mr. Nuttall often appeared to be in a dazed state during the videotaped scenarios. Ms. Korody commonly slept through most of the meetings with Officer A. Their state of consciousness should have been a real and substantial concern during the undercover operation but it was ignored by the police.
[391] Somewhat less significantly, Ms. Korody became very worried about what would happen to their cat if they did not come back to their apartment. Officer A assured her that if they could not go back to the suite he would find someone to care for their cat. The payment of their rent was also a problem. Because the defendants had spent most of their welfare cheque on the bomb components, they were short of the rent by several hundred dollars. The defendants were very concerned about having to live on the street again. The rent was due on July 1st. Again, Officer A solved this problem by assuring the defendants that they would not have to live on the street and would be able to return to their suite after the bombs were planted and, further, that the rent would be taken care of because Mr. Nuttall would be given work by Officer A’s organization after the mission. He drove them back to their suite to pay what they could for the rent and counselled Mr. Nuttall to tell the landlord that the balance would be paid the following week.
[392] Other impediments to the completion of any mission in Victoria that were raised by the defendants included the police recognizing Mr. Nuttall; getting caught on camera and thus needing an alibi; making the mujahideen angry because they had not approved of the mission; carrying out a test explosion before doing the real thing; requiring a gun and weapons training; the presence of DNA on the leftover bomb parts, the duffel bags to carry the devices, and the vehicle used to transport the devices; the need for clippers to cut the nails for the timers; the possibility that the maids at the Sundance Motel would see what they were doing; the presence of security guards at the Parliament buildings; the need for a marriage certificate because they would be stoned for adultery in any Muslim country; the timers would go off too soon and kill them; T.E. would recognize the plan when it happened and report them to the police; the batteries for the timers may have shorted out overnight and would have to be replaced before anything else happened; there would be fingerprints and DNA left in the Sundance Motel; Mr. Nuttall had not paid off a debt to a friend; the C4 could be traced back to them; their cat could not be left alone at their apartment while they stayed at the safe house and if it died it would testify against Mr. Nuttall on Judgment Day; and even with Officer A’s exit plan they would be caught at the airport. In regard to each of these impediments, Officer A either said that he would take care of the problem and specified a solution or he convinced the defendants that it was not really a problem.
[393] Officer A went so far as to instruct Mr. Nuttall how to construct the timers from the clocks he purchased when he was convinced that the nails had to be cut to work properly and had no idea how to make timers out of electronic clocks. Although Officer A told Mr. Nuttall that he would have to purchase his own tools for the timers, he ultimately supplied the clippers that Mr. Nuttall said he needed. When Mr. Nuttall feared that he might break a clock while trying to make it into a timer, Officer A assured him this was not a problem because they could simply buy more clocks. Officer A also continually criticized Mr. Nuttall’s plans regarding the planting of the devices (for example, burying them underground or leaving them in flower pots), until he came back to Officer A’s suggestion that they place the devices in bags and leave them like they did in Boston.
[394] Officer A also isolated the defendants during the shopping trip by counselling them against having contact with anyone apart from him. When Mr. Nuttall wanted to get lead pipes from a friend, Officer A said that this should not be done. When Ms. Korody wanted to call her parents for money, Officer A distracted her by changing the subject. When Mr. Nuttall wanted to call a friend to help with the mission, Officer A discouraged him from involving anyone else. When the defendants became excited about getting Christmas lights from a friend, Officer A discouraged them by counselling that only a single LED light was required to test the timers and this could be purchased anywhere. At one point Officer A promised to find them an LED light. When Officer A dropped the defendants off at the mosque on June 28th, he instructed them not to talk to anyone they saw there.
[395] Officer A also counselled the defendants that time was short and they had to finish the pressure cooker devices quickly. He instructed them not to stop working if they needed “this or that” because there was no time to spare. Officer A connected finishing the devices with the important meeting coming up with his partner who would have to approve their part in the mission. Unless the “brother” approved of the plan and saw that they were ready to go with the mission, he would not sanction the financing of the plan. In private, the defendants expressed concern that they were being rushed and did not have enough time to complete the plan. Ms. Korody was of little assistance because she appeared to be vomiting most of the time or playing games on the Internet. In this regard, when the defendants were left alone at the Sundance Motel, Mr. Nuttall directed Ms. Korody to clean off DNA and fingerprints and this is essentially all she contributed to the devices. Although Officer A tried to get the defendants to commit to a timeline regarding the completion of the devices, they were unable to commit to a schedule. The fact that Mr. Nuttall was taking such a long time to construct the rudimentary devices illustrated his general ineptitude. Mr. Nuttall spent hours gluing nails and bolts to the inside of the pressure cookers and stumbled around in an agitated manner because he was having great difficulty assembling the timers out of the clocks he had purchased.
[396] It was on the last night before the meeting with the “brother” that Mr. Nuttall privately expressed to Ms. Korody that if they did not finish the devices they would “mostly likely be killed or set up” by Officer A:
… His third contingency plan is ditch us. We’re expendable. Save himself. Those are his words. We’re assets to be sure, yes, we are, but if we at any time become a liability … a threat, a liability, we both dead, ‘kay.
…
Alright baby, you can’t screw up again. We screw up again, we’re not gonna make it. Okay? You know what’s gonna happen if we don’t come up with this? Abdul’s gonna come up with his end, and we’re gonna come up with fuck all. You know what’s gonna happen to us? He’s gonna turn from a real nice guy, into a fuckin monster, okay. We’re not going to sleep, kay, got it? Come on now, pull yourself together soldier. Come on. We are expendable, okay, remember that. …
…
Has it occurred to you that he has a fourth contingency plan? It involves us, wearing cement galoshes at the bottom of the ocean. Anna, you know? … That’s what I’m trying to explain to you, We can‘t go to sleep, we can’t fuck up, we can’t fuck up. We can’t fuck up.
[397] The defendants also believed that Officer A was part of Al Qaeda (because of the plan to get them fake passports) and if the mission was not sanctioned by Al Qaeda, Officer A would blame it on them.
[398] Cpl. McLaughlin testified that he was not briefed on any of the defendants’ expressions of fear on the night before the Officer D interview. He felt it was S/Sgt. Kassam’s responsibility to question the monitors about anything important that was overheard on the audio feeds at the motel.
[399] In addition to the help Officer A provided to the defendants in connection with the acquisition of the bomb components, he also provided them with a remote and quiet location to construct the devices. The defendants were unlikely to have focused on building the pressure cooker devices if they had remained in their own apartment. S/Sgt. Kassam agreed that Officer A had to constantly keep the defendants moving forward on the plan so that they would stay focused because otherwise they would “deviate” from the objective. The police could not have eliminated the many distractions that normally hindered any productive work by the defendants had they remained in their own residence. At the Sundance Motel, the police were able to secure management’s cooperation in ensuring the defendants were left alone in their room. This was necessary because despite Officer A’s instructions not to be conspicuous, the defendants constantly left the room to smoke and insisted upon playing loud Arabic music.
[400] Throughout the shopping trip, and while the defendants worked on the pressure cooker devices, they privately expressed concern to each other about their lack of experience with jihadist missions. They told each other and Officer A that they were heavily dependent upon him for advice and guidance. In response, Officer A assured the defendants that he was taking care of all the logistics for the operation and all they had to do was construct the devices. Mr. Nuttall told Officer A that he needed to be given orders like a soldier. Mr. Nuttall relied entirely on Officer A’s knowledge of C4; he did not know how it was ignited, where it could be purchased or how it was made. He did not know how much would be required or what kind of explosion it could create. Mr. Nuttall had wanted to stick to black powder, as described in the recipe in Inspire Magazine, but it was apparent that this substance was also out of his reach.
[401] Officer A was true to his word about taking care of all the logistics. Before the defendants finished the devices at the Sundance Motel, Officer A advised them that he had secured a safe house for them on Vancouver Island and on the Mainland when they returned. He had arranged for them to travel by ferry in a new vehicle, and the night before Canada Day they would be driven into Victoria to select targets. They would plant the bombs at 5:00 a.m. on Canada Day when there were few people around and the police would be changing shifts. Officer A told the defendants that all of these plans had been carefully researched, orchestrated and financed by his organization before they left the Sundance Motel. In addition to being things that were entirely beyond the defendants’ ability to arrange and finance, the fact that the sophisticated terrorist organization had already taken these steps and expended its resources on the mission cemented their belief that they could not retreat now without putting their lives in jeopardy. It was in this context that Mr. Nuttall cautioned Ms. Korody that if she screwed up the devices at this stage Officer A would turn into a “fuckin monster”. They were expendable and would be “dropped into the ocean with cement galoshes on”.
[402] Sgt. Kalkat testified that he was aware of the defendants’ expressions of fear during their stay at the Sundance Motel through briefings with S/Sgt. Kassam. However, both Cpl. Matheson and S/Sgt. Kassam testified that they were unaware of the defendants’ private expressions of fear. While Sgt. Kalkat testified that these issues would be addressed by giving the defendants several opportunities to back out of the plan, he also believed that Mr. Nuttall did not actually fear Officer A and was merely trying to spur on Ms. Korody to work harder. This attitude is unlikely to have impressed upon the undercover officers the importance of ensuring the defendants were acting voluntarily and were not being unduly influenced by the actions of the RCMP. Because Cpl. Matheson was entirely unaware of the defendants’ expressions of fear, he was not in a position to make the necessary changes to the direction of the scenarios to respond to this problem.
[403] The monitors reported that on the night of June 28th, Mr. Nuttall appeared to be working on the pressure cookers in a manic state, shouting orders to Ms. Korody as she wretched in the bathroom. However, Cpl. Matheson agreed that nothing was built into the later scenarios to deal with the defendants’ physical ailments, their fears that they would be killed if they did not go through with the mission, or Mr. Nuttall’s panicked state of mind. Insp. Corcoran was also kept in the dark about the defendants’ expressions of fear; he testified that had he known about these matters he would have probed further to address any voluntariness issues.
[404] It was also during the shopping trip, and while the defendants were staying at the Sundance Motel, that Officer A fleshed out the character of the “brother” who had to approve the plan. Officer A had built up an image of this person as an international terrorist; a mujahideen who travelled the world financing jihadist missions. This person had substantial authority in the sophisticated terrorist organization to which Officer A belonged. It is apparent that the defendants completely accepted Officer A’s description of Officer D and their overactive imaginations supplied many additional details surrounding his character as a mujahideen.
[405] It is important that on the night before the interview with Officer D, the defendants continued to be unsettled on what to do with the pressure cooker devices. They talked about putting them in a van, in garbage cans, in a toilet, at various businesses and other public places; and could not choose between leaving the devices behind bushes or burying them. Mr. Nuttall could not understand why they needed the devices when they had C4 and felt Officer A was just testing them to see if they could construct the devices. He expressed fear that Officer A could just kill them.
[406] The interview with Officer D was planned by S/Sgt. Kassam and Cpl. Matheson. Officer D had no knowledge of Project Souvenir apart from a briefing outline that was given to him shortly before the interview on June 29th. During the briefing, Officer D was instructed to ask questions to gauge whether the defendants were committed to going through with the pressure cooker plan and were acting voluntarily without influence from Officer A.
[407] Although the intention was to have the interview resemble a “non-traditional” Mr. Big without a confrontation, S/Sgt. Kassam agreed what occurred was more in line with a traditional confrontation interview. The informal meeting turned into a formal interview and Officer D was presented as the “boss”, or at the least, a very important member of the terrorist organization who would be in charge of approving any plan the defendants had. In addition to portraying Officer D as an important leader of the terrorist organization, Officer A had talked about Officer D in such a way as to lead the defendants to believe he had come from the Middle East.
[408] Up until the last minute, it was Sgt. Kalkat’s intention to have Cst. Mokdad play the role of the “brother” in charge because he wanted this person to show extensive knowledge of the Islamic faith. In the end, the consensus was that Officer D should play the role. Cst. Mokdad travelled to Surrey to participate in the undercover operation on the morning of June 29th; however, he was not involved in Officer D’s briefing and he was not briefed on the details of Project Souvenir. Instead, he shadowed Sgt. Kalkat during the day and was in the monitoring room at the Sundance Motel during Officer D’s interviews with the defendants. He provided some direction to the team concerning the Al Qaeda flag that the police constructed for the videos produced by the defendants on the evening of June 29th. Cst. Mokdad saw the flag in the videos and testified that it was an accurate Al Qaeda flag. Cst. Mokdad testified that while in the monitoring room he gave no advice about the interviews to the officers present.
[409] On June 29, Officer A was instructed to get the defendants out of the motel room to enable the police to re-position the hidden cameras for the “Mr. Big” interview. Officer A instructed the defendants as to precisely what would be occurring that day when he arrived at the motel in the late afternoon. He told them that they would be going for lunch and then they would return to clean the room. Shortly thereafter the “brother” would arrive for the meeting. On the way to lunch Officer A told the defendants the details surrounding his acquisition of the C4 for the pressure cooker devices. In the course of his description, Officer A strengthened their belief that he was a powerful man in a very sophisticated terrorist organization and that he had violent friends who would not think twice about killing them if they became a liability. In particular, Officer A told the defendants that he had contacts among gangsters with military connections who had a secure international source for C4 that could not be traced.
[410] Officer A also attempted to get Mr. Nuttall to choose a location for planting the devices but he was again surprised that Mr. Nuttall wanted to simply blow up a van inside a parking garage. Significantly, Officer A told Mr. Nuttall that “he had not planned it that way”, because the van would be used for the getaway. Mr. Nuttall expressed agreement with Officer A’s plan but later in the “Mr. Big” interview he went back to this idea once again showing his indecisiveness.
[411] It is also significant that Mr. Nuttall did not want Ms. Korody to participate in the planting of the devices but Officer A insisted that she would be required as he was only going to be the driver. Mr. Nuttall resisted Officer A on this matter and subsequently told Ms. Korody that she could go home and he would do the mission; however, she agreed to follow him into battle. The context of her agreement to participate is made clearer when in private conversations with Mr. Nuttall she expressed her fear that it was too late to back out and her acceptance of Mr. Nuttall’s belief that they would be killed if they did so.
[412] The defendants were interviewed separately by Officer D. During the first portion of Mr. Nuttall’s interview he was jittery and shaky. He told Officer D that he had a neurological disorder that made him shake and that he had been paralyzed for two years. Mr. Nuttall had previously advised Officer C and Officer A about the lengthy recovery process from this disorder that included two years in hospital while paralyzed and longer in a wheelchair. He said the disorder was called Guillain-Barre syndrome. Sgt. Kalkat testified that he tasked an officer in E-INSET with researching this syndrome to determine whether it would have affected Mr. Nuttall’s mental capacity and he ultimately decided it would not. The sergeant could not recall who was tasked with this responsibility and he had no note of the results of the inquiry.
[413] At the outset of the interview the matter of religion came up. Officer D said he wanted to know if Mr. Nuttall’s quest for jihad came from his heart. When Mr. Nuttall responded that in his heart he knew that they were in the “final days”, Officer D agreed that there were signs that the Day of Judgment was upon them.
[414] During the second part of Mr. Nuttall’s interview, after Officer A and Ms. Korody left the room, Officer D said he had travelled from a great distance and he wanted to know if Mr. Nuttall was being pressured to do jihad. Mr. Nuttall did not address the question and, instead, talked about why he wanted to fight the infidels. He said that his directions were coming from Allah. Mr. Nuttall told Officer D about his plans to storm the Esquimalt naval base and make Qassam rockets. Getting nowhere with Mr. Nuttall, Officer D asked Officer A to come back into the room. When Officer D asked to hear the whole plan, Mr. Nuttall said there was not much to tell. Officer D took out an old photograph of himself with long hair and a scruffy beard and showed it to Mr. Nuttall hoping this would lead him to be more forthcoming with a “real mujahideen”. Sgt. Kalkat was aware of the plan to use this photograph and believed it was necessary to make Officer D appear more realistic as a terrorist or at least Hollywood’s version of a terrorist. Thereafter, in response to Officer D’s inquiries about his plan, Mr. Nuttall said he wanted to do his rocket plan but Officer A said it was too risky.
[415] When asked what he needed for the pressure cooker plan, Mr. Nuttall showed Officer D the pressure cookers and the timers. He said these were ready to go boom. When asked what he wanted as an explosive, Mr. Nuttall said he wanted to use gun powder but Officer A said he could get something else. When asked what he would have done if Officer A had not come into his life, Mr. Nuttall said he would probably have bought gun powder in a gun shop but there would have been no rush. He was not in any hurry and the mission could be put off into the future. When asked whose plan it was, Mr. Nuttall said it was Officer A who had given him the idea and Officer C had suggested a remote detonator with a cellular telephone. When asked what he would have done without Officer A, Mr. Nuttall said he would have waited until he found other mujahideen in Canada or out of the country. When asked about the C4, Mr. Nuttall told the story of how he helped his brother make C4, a story he had embellished upon in earlier conversations with Officer A. When asked how much C4 he needed, Mr. Nuttall did not know; he said Officer A told him a pound for each bomb. Officer A interjected and said Mr. Nuttall wanted three pounds per bomb. Mr. Nuttall appeared to still be uncertain about the C4. He deferred entirely to Officer A on this issue.
[416] When asked about targets, Mr. Nuttall said he had many ideas but in reality he wanted to storm the naval base and destroy the US nuclear submarine at Nanoose Bay. In his testimony, Officer D agreed that Mr. Nuttall was “all over the map” with these “hare-brained and hokey” ideas. Even when pressed, Mr. Nuttall could not explain the details of any plan that included the pressure cooker devices.
[417] Officer D received a call from Cpl. Matheson and left the room. While outside the motel room, Officer D met with Cst. Mokdad and Sgt. Kalkat to discuss what had gone on so far in the interview. He complained that Mr. Nuttall had only dreams about jihadist plans and was “blaming [Officer A] for all this shit.” Cst. Mokdad advised Officer D that when he went back inside he should make sure that Mr. Nuttall knew that he was afraid of the government when Officer D was giving Mr. Nuttall the option of backing out of the plan. Cst. Mokdad said to say that if the “dogs of the government” came to Mr. Nuttall’s door it would be as if they had never met. Cst. Mokdad testified that a real jihadist would be afraid that the target would burn him if he backed out and these words would create more realism in his cover as a jihadist.
[418] In the absence of Officer D, Officer A talked with Mr. Nuttall privately. He confronted Mr. Nuttall about his lack of forthrightness with Officer D. He asked why Mr. Nuttall had said that the pressure cooker plan was Officer A’s idea. He counselled Mr. Nuttall to tell Officer D what was “in his heart”. Cpl. Matheson testified that Officer A had been instructed to go after Mr. Nuttall about his lack of commitment in the interview.
[419] After this confrontation Officer A took Mr. Nuttall outside and Officer D was close by in his vehicle. Officer A told Mr. Nuttall that Officer D was talking to someone overseas. When Mr. Nuttall expressed a belief that Officer D did not want to help him because he was white, Officer A said that was not true and that Officer D just had to be sure of Mr. Nuttall because it was Officer D’s money and contacts that were going to be used to help Mr. Nuttall. While Mr. Nuttall stood nearby, Officer A went over to talk to Officer D. In character, Officer A pleaded with him to give Mr. Nuttall another chance. Officer D said that Mr. Nuttall was not ready and the meeting was a waste of his time. He said the ideas were a bunch of crap like you see on CNN. Officer D became visibly angry and swore about the waste of time; he said he was very “fucking” angry and was going to cool down in his car. Officer A asked him to give Mr. Nuttall some time.
[420] Both Officer D and Officer A agreed that this exchange was designed to test Mr. Nuttall’s resolve to go through with the plan. On the other hand, Mr. Nuttall would now believe that a high-ranking terrorist was angry with him. Officer D testified that it was his belief that Mr. Nuttall overheard this conversation, but Officer A disagreed. I find it is apparent that Mr. Nuttall did hear this exchange because it triggered an immediate change in his demeanour; he became upset and very agitated. He went over to Officer D’s vehicle and begged him to help him fight the infidels. He apologized for his behaviour during their meeting. Officer D told Mr. Nuttall that he had come a long way to see him. Mr. Nuttall asked whether Officer D had left because he doubted that he would go through with the mission. Officer D replied that he was confused because Mr. Nuttall had said it was Officer A’s plan. Officer A then asked Officer D to give Mr. Nuttall a chance and Officer D agreed to come back inside for Officer A’s sake, not for Mr. Nuttall’s. After Officer A and Mr. Nuttall returned to the motel room Officer D came back inside. Officer D testified that he came back inside because it appeared that Mr. Nuttall really wanted him to come back; he was begging him and was apologetic.
[421] Sgt. Kalkat had no knowledge of these events at the time. The officers in the monitoring room did not listen to Officer D’s angry response to Mr. Nuttall’s lack of performance during the interview live, because it was only recorded on the undercover officers’ body packs. However, Officer A and Officer D would have been able to brief S/Sgt. Kassam and Cpl. Matheson about the confrontation outside of the motel room.
[422] It does not appear from the evidence of S/Sgt. Kassam and Cpl. Matheson, who were in charge of planning the next scenarios, that they made any significant adjustments to undo the harm created by these events apart from the standard “outs” that the defendants had been given in prior scenarios. S/Sgt. Kassam testified that he was not briefed on what transpired outside the motel during this part of the scenario until after the operation concluded. However, he believed this confrontation would be a good stimulating tactic.
[423] When Officer D came back into the motel room the three men sat at the table again. Mr. Nuttall was distraught and very concerned that Officer D had misunderstood him. Officer D said that Mr. Nuttall was not ready and had no plan. Officer D testified that he meant there was no viable plan that could be carried out to a meaningful end as opposed to hare-brained ideas. Mr. Nuttall said there were three plans lined up; his plan was to fill a truck with C4 and park it beside a bank in downtown Victoria and walk away. It would kill 20,000 people who would be near the bank. He said this was going to be done on Canada Day. Officer D agreed that the truck explosion was Mr. Nuttall’s main plan and the pressure cookers were only a backup plan. When Officer D asked how he could be sure that Officer A had not given Mr. Nuttall this idea, he said that it came “from his heart” and that Officer A told him to only speak from the heart. Mr. Nuttall said he wanted to be respectful of Officer D because he was an important person in the Muslim nation. Mr. Nuttall said he was holding back because he did not want to appear to be a lunatic. Officer D left and told Officer A to call him later as he had to take care of other business. He told Mr. Nuttall that they may not be done after all.
[424] After Officer D left, Officer A told Mr. Nuttall not to worry because he was going to talk to Officer D and their plan to get the C4 was still on. Mr. Nuttall said he should have told Officer D that he does not fear death or capture; his only fear was that he could not do jihad. He was afraid he could not do jihad because he needed the weapons to do it and then he would do it. Officer A again told Mr. Nuttall not to worry because he was going to solve the problems and he was going to call the brother. Officer A told Mr. Nuttall that he should have told Officer D about his plan, but instead he said it was Officer A’s idea when Officer A wanted Mr. Nuttall to explain the plan to Officer D.
[425] Cpl. Matheson sent Officer A a direction to take Mr. Nuttall out and calm him down. Officer A and Mr. Nuttall went in search of coffee. En route, Officer A told Mr. Nuttall that if he wanted to drop everything he would take them back to their apartment. Mr. Nuttall said he was sure he did not want to drop it. When Officer A told Mr. Nuttall that he had to convince Officer D of his serious intentions, Mr. Nuttall said he had said it all and Officer D would not be convinced despite what he said. Officer A said that Officer D wanted to know why Mr. Nuttall wanted to do this thing and Mr. Nuttall said that was obvious; he was a soldier behind enemy lines. Officer A replied that getting help from the brother was not a simple thing and Mr. Nuttall replied that he could just give them some black powder and a couple of handguns. Officer A said that Officer D may not come back and was not very happy with the plan.
[426] Again, Officer A said if Mr. Nuttall wanted to drop the plan he would drive them home that night. Mr. Nuttall said he had been talking about this plan for so long and he had spent $1,000 and all of their rent money on timers. Officer A replied that he would give Mr. Nuttall the rent money and the $1,000 and Mr. Nuttall said he did not want his money back, he just wanted to do jihad. Officer A said if he was going to speak with the brother again about the C4, he had to be sure that Mr. Nuttall wanted to go through with the plan and if it was the money he would give that back to Mr. Nuttall. Officer A said that if Officer D came back he would ask Mr. Nuttall the same questions. Mr. Nuttall said that he was sick of talking and just wanted to do this. Mr. Nuttall asked Officer A to help him and he said that he knew Officer A could do that.
[427] After picking up drinks Officer A and Mr. Nuttall drove back to the motel. En route Officer A said that now he was sure Mr. Nuttall wanted to do this 100% he was going to get Officer D back. Mr. Nuttall agreed he was 100% sure that he wanted to go ahead with the plan. Officer A went over what he wanted Mr. Nuttall to tell Officer D, but Mr. Nuttall said he had told Officer D all these things about his motive for doing jihad. If the brother was not going to help him, Mr. Nuttall said he was going to point him out to Allah. At this point Officer A telephoned Officer D and pretended it was another brother on the telephone. He said they needed Officer D to come back to the motel. Mr. Nuttall said it was a sin not to help him with jihad and Officer A said that the brother was putting himself at risk just being here.
[428] Back at the Sundance Motel Officer A said that Officer D wanted to hear about the plan from Mr. Nuttall and he replied that he did not want to speak for Officer A. Officer A said that Officer D wanted to know if he was going through with this plan for the right reason. Mr. Nuttall retorted that he has told every brother that he wants to do jihad because Allah commands it.
[429] Officer D returned to the motel and continued with his interview of Mr. Nuttall while Officer A watched. Despite Mr. Nuttall’s failure to fully explain the pressure cooker plan, Officer D told him, as directed by cover, that he could have the C4. Cpl. Matheson testified that this directive was added to the scenario to take the pressure off Mr. Nuttall from having to prove himself to Officer D in order to get the C4. It was thought that the promise of the C4 would induce Mr. Nuttall to explain the plan he had for the pressure cooker devices. However, Mr. Nuttall was not forthcoming about any specific plan for the devices even after he was promised the C4.
[430] Although Mr. Nuttall said he had three plans, he explained only two: the exploding van and the backup plan with the pressure cooker devices. He gave a list of targets to Officer D that did not include the bushes adjacent to the Parliament buildings where the devices where ultimately planted. At the end of their meeting it was quite clear that Mr. Nuttall had no concrete plan for the pressure cooker devices; he wanted to blow up a van that Officer A had told him was no longer available. It was after this entire charade that Officer D promised Mr. Nuttall that no one would force him to continue if he wanted to back away from the mission right then. Mr. Nuttall said he wanted to continue because he was following the will of Allah – precisely as Officer A had explained the concept of pre-destination to him.
[431] Mr. Nuttall explained to Officer D that while it was his idea to explode the devices on Canada Day, it was Officer A who got them to speed things up because he was going to leave Canada for Ramadan. Officer D asked if it was Officer A who was giving him these ideas about jihad and Mr. Nuttall said no, he was the first one to bring up this subject after he saw a Quran in the back of Officer A’s vehicle the day they met. Mr. Nuttall said Officer A was helping him but not ordering him to do things. When Officer D asked for details on the what, where and when, Mr. Nuttall said they needed C4 because he wanted to drive a truck belonging to Officer A into the crowd and set the timer and park it there and just walk away. It would be in Victoria in front of a bank with people watching the fireworks. Officer D asked Mr. Nuttall what he would do if there was no C4 and he said that he would do the same thing except with gunpowder in bags like the Boston bombers did. He was thinking of planting them or burying them in tree planters on the street and killing 12 people with each bag. When Officer D asked where Mr. Nuttall planned to place the pots, he said the plan was to put them all in the truck and blow it up. Officer A said he had already sold that truck and Mr. Nuttall replied that he felt Officer A was afraid to be seen on camera; however, he was going to take that risk and paint a Canadian flag on his face as a disguise.
[432] Officer A agreed the interview with Officer D went completely off the rails. Mr. Nuttall did not have a set timeline for the mission and went back to wanting to build rockets and storm the naval base in Esquimalt. Officer A also agreed that in the second part of the interview Mr. Nuttall used the same language as Officer A had used when he told Officer D what was in his heart. When it was put to Officer A that the plan to take control over the nuclear submarine was a fantasy, Officer A disagreed. In his view, Mr. Nuttall was capable of accomplishing such a mission.
[433] In my view, it is apparent that Officer A had lost all objectivity when he testified at the trial. It is plainly ludicrous to think that Mr. Nuttall was capable of hijacking a nuclear submarine. His plan was to swim over to it and take control of it. There were never any additional details supplied as to how the takeover would be accomplished.
[434] While Officer A disputed that he had pressured Mr. Nuttall hard to tell Officer D about the pressure cooker plan, he ultimately agreed that he used a different tone of voice to test how much resolve Mr. Nuttall had to do the mission. Officer A agreed that he had talked about Officer D in a manner that would reasonably have led Mr. Nuttall to believe that this brother outranked him in the organization and was an important international warrior for Islam.
[435] By this point in the operation Mr. Nuttall knew that Officer A and the others in the organization had put a great deal of work and money into the plan. In the context of the entire undercover operation, Officer A’s subsequent admonition to Mr. Nuttall not to worry about the money and the work that had already gone into this mission, and his promise to return the defendants’ money and take them home with no consequences, would ring hollow. Moreover, Officer A brought home to the defendants the serious nature of his organization when Mr. Nuttall tried to explain that he did not want to sound too extreme when talking to Officer D. To this statement Officer A replied, “listen, you know where this brother is coming from. You can’t be more extremist than he is.”
[436] In her interview with Officer D, Ms. Korody denied that Mr. Nuttall or Officer A had pressured her to go through with the plan; however, she repeated Officer A’s view of pre-destination that eliminated free will when explaining her motivation. It was also her big plan to build Qassam rockets. Ms. Korody had no concrete idea of what to do with the pressure cooker devices; she thought they might have to dig a big hole and put them into it. If Officer A had not come along to help them, Ms. Korody said they would have looked into model rockets and saved enough money to build one someday. When asked whose idea it was to build pressure cooker devices, she was non-committal and responded that they bought the parts and Officer A drove them around. The idea came from the Boston brothers. If Officer A had not given them C4, she would have purchased shotgun shells and taken them apart to get the black powder. Of course, Ms. Korody had no identification with which to purchase shotgun shells and had not demonstrated any knowledge of how to break apart a bullet or how many bullets she would require to produce sufficient black powder for an explosive device.
[437] Understandably, Ms. Korody also rejected this high-ranking terrorist’s offer to permit her to back out of the mission. She had not only been subjected to Officer A’s description of Officer D and their terrorist organization, but her husband had also impressed upon Ms. Korody his belief that they were dealing with Al Qaeda and could only expect to be killed if they failed to complete their part in the mission. It is also significant that Officer A was present when Ms. Korody was asked if she had been pressured by him to participate in the mission. It is unlikely that Ms. Korody would have wanted to offend two terrorists. Moreover, in light of the dependant relationship that had developed between the defendants and Officer A, it is improbable to believe that Ms. Korody would have had the courage to offend him. Her answer must also be kept in its proper context. It was Officer A who had pressured Mr. Nuttall to bring Ms. Korody to Kelowna and to accompany them during critical scenarios. He had also insisted that she participate in the planting of the devices even when Mr. Nuttall said she would not be needed.
[438] Lastly, at the end of Officer D’s role in Project Souvenir, he invoked the defendants’ religious beliefs to further their resolve to complete the mission. In this regard, when Mr. Nuttall asked Officer D to do a prayer for the mission, he replied that Mr. Nuttall must do the special prayer for hope before the mission and Mr. Nuttall indicated he knew this to be the prayer a Muslim did before a tough decision. The prayer was to put love or hate in your heart depending on if it was good for you or not.
[439] Officer D also asked if Mr. Nuttall had prepared for the mission and Mr. Nuttall replied that there was a problem of debts that were unpaid and if he died this would prevent him from entering heaven. Instead of impressing upon Mr. Nuttall the risk that he could die in such a mission, both Officer D and Officer A assured him that this was not going to occur. When Officer D said this was not a martyr mission Mr. Nuttall said it could be. Officer A interjected and said that he took care of everything, inferring there would be no martyrdom. Mr. Nuttall said that down the road they might be found and shot down. Officer D said that the police were not that smart and, in light of all the planning they had done, their plan was going to work, inferring they would not be caught and killed.
[440] Officer D also had a substantial role in the video that was subsequently shot while the defendants explained the reasons behind their actions. It was apparent to the police that Mr. Nuttall was quite reluctant to make a video claiming responsibility. Cpl. Matheson advised against it but Officer D said it should occur in light of what he characterized as a successful conversation with Mr. Nuttall about the plan. A third undercover officer, posing as a video expert, arrived with a black jihadist flag that the defendants were originally to have made. They did not take any steps towards making the flag and thus the police supplied it for them.
[441] On the night of June 29, Officer A took possession of the pressure cooker devices. The police supplied a duffel bag for two of them and the third was placed in a black garbage bag. The police had to supply the bags because during the three days of shopping the defendants had not been able to focus on what was required to carry the devices.
[442] The authorization under s. 25.1 for possession of actual C4 was granted on June 29, 2013 by C/Supt. Tremblay. The plan formulated by the investigative team ensured that the pressure cookers could not explode because there would be no live detonators inside the devices and the one gram of C4 was deemed not to be a risk to the public. Sgt. Kalkat’s lengthy and detailed application for the s. 25.1 authorization provided a summary of the operation to date and the plan for the explosive devices. Only Cpl. Matheson and Officer A were covered by the exemption from s. 81(1)(b)(ii) of the Code (use of an explosive). If any additional offences were to be part of the operation, a supplementary consent could have been granted based on an updated operational plan. Again, Cpl. Matheson was to be the assigned cover officer in charge of scenario planning and development notwithstanding his actual role was much more limited.
[443] Members of the explosives unit took possession of the pressure cooker devices from Officer A and they packed the real C4 into them. It was surrounded by a substance that resembled C4 so as to lead the defendants to believe that there was a large quantity in each device. The RCMP not only supplied the C4 but also the fake detonators. While the explosives officer tested the timers made by Mr. Nuttall and found them to be functional based on the light bulb test, he had to connect the batteries to the wires and rewind one of the wires that had become dislodged. He also found that a light bulb and its filament were missing from one of the timers. Ultimately the timers made by Mr. Nuttall were not part of the working parts of the device. Further, the LED light used to test the timer could not have been used to detonate the C4; it could only detonate black powder. Once the devices were ready, additional explosives officers transported them by ferry to Victoria.
[444] On the morning of June 30, 2013, the private conversations of the defendants revealed that Ms. Korody was afraid and in a state of panic. Although she wanted to be a fighter, she thought she would not be able to get out of the van to plant one of the devices. Mr. Nuttall said she could go home but if she came along she had to be a full participant. It is apparent that Mr. Nuttall had now accepted Officer A’s view of how the devices would be planted; that is, it would take both defendants to plant the pressure cookers, thereby forcing Ms. Korody to take an active part in carrying out the mission. Further, notwithstanding the live monitoring of all the defendants’ conversations in the Sundance Motel, the police failed to consider the influence Mr. Nuttall wielded over Ms. Korody. Ms. Korody’s religious beliefs would have impressed upon her the importance of obeying his commands when told that she had to fulfil her duty as a soldier for Allah. He warned Ms. Korody that if she came with them to Victoria, and subsequently backed out of the mission, “she would burn in hell.” Although Officer A told Mr. Nuttall that Ms. Korody should go home if that is what she wanted to do, in a later telephone call to the Sundance Motel Officer A said that if she was going to back out, it had to be before they left for Victoria.
[445] In the last stages before leaving for Victoria, Mr. Nuttall continued to badger Ms. Korody to help him clean up the motel room. Ms. Korody was ill and took Gravol for her nausea. Mr. Nuttall warned her to stop taking the Gravol because if she became a liability she would wind up dead.
[446] While the defendants cleaned the room, it was apparent that Mr. Nuttall was driven to follow Officer A’s directions precisely. He had been instructed on what to do with the garbage and he insisted that Ms. Korody follow his directions despite her concern that they were not recycling. Mr. Nuttall’s child-like demeanour was illustrated by his constant refrain that they would have to “Jason Bourne” the motel room. This reference to Jason Bourne, and to other movies such as Rambo, illustrated how most of Mr. Nuttall’s ideas, and his knowledge of tradecraft, came from Hollywood films. Mr. Nuttall’s immature approach to tradecraft was also well illustrated by his purchase of a large Canadian flag to wear on Canada Day and the plan to paint his face blue and red, notwithstanding they would be planting the devices in the early morning hours. A person dressed in this manner at that time of the morning would obviously attract unwanted attention; however, Mr. Nuttall never appreciated the obvious flaws in his reasoning.
[447] Similar to his inability to focus during the construction of the pressure cooker devices, Mr. Nuttall was easily distracted during the cleaning process. He went from one topic to another without any rational connection between the subjects of his ramblings. He paced up and down in the motel room in a state of panic; he threatened Ms. Korody with death at the hands of Officer A if she tried to come up with new targets so late in the mission. In turn, Ms. Korody counselled Mr. Nuttall that his musings about not going back to their old life after the mission could also lead to his death. Mr. Nuttall’s fear of Officer A’s intentions, as a high-ranking terrorist, led him to contemplate that he was planning to detonate the devices when they were close by to make this a suicide mission.
[448] Later in the morning Mr. Nuttall telephoned Officer A to advise that he owed a friend some money and the friend kept calling him about the debt. Officer A instructed Mr. Nuttall not to return the calls. Mr. Nuttall begged Officer A to ensure the debt was repaid after the mission and Officer A agreed. Officer A then gave Mr. Nuttall permission to leave the motel to get some cigarettes, but he instructed him not to leave Ms. Korody alone for too long. In my view, this exchange illustrates Mr. Nuttall’s dependence upon Officer A and the child/parent relationship they had. Mr. Nuttall could do nothing without first getting Officer A’s permission. For even the most simple things Mr. Nuttall needed Officer A to tell him what to do.
[449] En route to the ferry Officer A gave the defendants an opportunity to back out of the mission; however, their decision to continue with the operation must be regarded in the full context of what had transpired in the four months since Project Souvenir began. Quite simply, the RCMP had carefully orchestrated a belief in the defendants that they were working with a large and sophisticated terrorist organization that by now had spent huge sums of money and had devoted many of its scarce resources to what they had come to believe was their plan to do jihad. They had privately expressed fear and panic at the thought of completing the mission, and at the same time, a belief that if they backed out now or became a liability, they would be killed. There is no reason to doubt the veracity of the defendants’ private statements to each other. They had no knowledge that they were being recorded. This is clearly the best evidence of how they felt at the time of the events. It is difficult to accept that the voluntariness of the defendants’ actions could be properly tested by Officer A’s assertion that they could back out in these circumstances. Moreover, Officer A had repeatedly given them a religious justification for violent jihad and none of the “outs” addressed the problems that might ensue if they ignored the will of Allah.
[450] At the ferry terminal Officer A paid for the trip ($100 that neither Mr. Nuttall nor Ms. Korody had) and he explained how his organization had acquired the C4. He was arranging for the safe transport of the C4 to Victoria in a separate vehicle. All of this was included in the logistics that Officer A had promised to organize and none of which was within the capacity of the defendants to pay for or arrange.
[451] Neither Mr. Nuttall nor Ms. Korody had the capacity to obtain any amount of C4 on their own. They had no knowledge of C4 and, as demonstrated by their statements to each other and to Officer A, they had no means of acquiring it. Clearly, Mr. Nuttall did not have the ability to make C4. Even his exaggerated claims of having tried to make C4 ended before he accomplished this objective. Mr. Nuttall did not know simple facts about explosives. Making an explosive from cow manure was clearly beyond his capacity. There was no evidence that he took any positive steps towards acquiring the ingredients required to make an explosive substance. Even before Officer A promised to secure C4, there is no evidence that Mr. Nuttall went beyond just talking about making an explosive substance. Moreover, the limited resources available to the defendants would have precluded the purchase of C4 or its transport to Victoria. In my view, had the police not provided the explosives for the pressure cooker devices, the defendants could never have secured it for themselves.
[452] En route to Sidney Officer A continued to direct the plans; he was clearly the leader of the mission and the defendants were his obedient minions. It was Officer A who said that Mr. Nuttall could not blow up a van, even though he was very keen on doing this. It was Officer A who said they were not going to scrap the pressure cooker devices and just blow up the C4. It was Officer A who said the plan was no longer to bury the devices; they were going to be planted in something. It was Officer A who dictated when they were going to carry out this mission.
[453] During the trip over Officer A also continued to eliminate the obstacles Mr. Nuttall placed in the way of completing the mission. When he became very concerned about someone following them on the ferry, Officer A made up a story about how his men were watching them for security. Mr. Nuttall was so convinced that this was true that he thought he saw Mustapha (the RCMP officer who recorded their videotaped statements) on the ferry. Officer A had also lied about Officer C already being in Victoria taking care of logistics regarding the security guards at the Parliament buildings. These lies also served to enhance the defendants’ impression of the power and resources of the terrorist organization that Officer A was part of.
[454] It was also during the trip to Sidney that Mr. Nuttall again asked Officer A for spiritual guidance. Mr. Nuttall said that he wanted to please Allah but was concerned that Allah would be angry at him for carrying out this mission. Mr. Nuttall said he knew they had to fight the infidels but did this mean that anyone caught in the blast would be killed because of the will of Allah. Officer A replied in the affirmative; only Allah could determine destiny. If he wanted, Officer A said, Allah could sink the ferry. Mr. Nuttall replied that was true but Allah also said not to kill an innocent man. What he did not understand was whether anyone caught in the blast was, per se, not an innocent man. Officer A replied that Mr. Nuttall had to do what he had to do and leave the rest to Allah. Mr. Nuttall said he was not doing the mission to kill innocent people but to change the way the world attacked Muslims.
[455] Mr. Nuttall said he still really needed to speak to a spiritual advisor. Officer A replied that Mr. Nuttall would not be able to speak to a spiritual advisor in the next two days but Mr. Nuttall insisted that he needed to speak with such a person. Officer A then spent several minutes trying to convince Mr. Nuttall that he only needed to follow his heart and let Allah do the rest. There was no real need to speak to a spiritual advisor said Officer A; in the Muslim faith there are no true spiritual advisors because all people are equal. Officer A said the Muslim faith was not like the Catholic religion where the Pope was the head of the church and made the laws. Officer A said a Muslim imam is the same as everyone else except he has read more. At the conclusion of this discussion Officer A brought up Anwar Al-Awlaki and Mr. Nuttall became distracted and went on to talk about Al-Awlaki’s death. (As discussed later, Al-Awlaki was a well-known Islamic extremist who was killed by the American government.) Officer A easily got him off the subject of a spiritual advisor entirely by pointing out a mural near Sidney.
[456] At trial, Officer A rationalized his statements to Mr. Nuttall about the Muslim faith. He reasoned that because Mr. Nuttall was only interested in extremist religious views it would have been unsafe for the police to provide him with spiritual guidance from a radical imam. However, Officer A’s assumptions about Mr. Nuttall were contrary to the tenor of his doubts about the killing of innocent people. Moreover, he lied to Mr. Nuttall about the Muslim faith, which does have spiritual advisors, and he misdirected Mr. Nuttall about the role of free will in the Muslim belief in pre-destination. Significantly, Officer A again omitted any reference to free will when he explained to Mr. Nuttall the theory of pre-determination and destiny. Cpl. Mokdad was not consulted in regard to the statements made to the defendants about spiritual guidance en route to Sidney.
[457] Sgt. Kalkat was not briefed on Mr. Nuttall’s quest for spiritual guidance or his doubts about killing people in the mission. Nor was he advised of what Officer A had told Mr. Nuttall about the faith and the role of an imam. The sergeant testified that he considered this to be a general discussion about the faith that did not discourage the defendants from seeking their own spiritual guidance from an outside source. Neither Insp. Corcoran nor Cpl. Matheson was briefed about this discussion on the way to Victoria.
[458] At the hotel in Sidney Mr. Nuttall’s outburst at a military plane flying overhead provided Officer A with yet another opportunity to bring home to him the consequences of making a mistake. Officer A chastised Mr. Nuttall for the outburst and told him that if anything went wrong his organization would blame him because he had vouched for the defendants. It was in this context that Officer A once again asked the defendants if they wanted to continue with the mission. If a high-ranking member of a terrorist organization was worried about the consequences of an unsuccessful mission, it would have been very clear to the defendants that they had no choice but to press ahead and complete the plan. Indeed, later that night when alone in the hotel, the defendants expressed the belief that Officer A had not really meant that they could walk away from the plan without any consequences. They believed that they had to complete the plan or be killed. This fear led them to consider running away, reporting Officer A to the police and then hiding in Victoria. All of these private conversations were live monitored by the RCMP; however, no steps were taken to abandon the operation. By this time there was a cadre of police officers on Vancouver Island preparing for the completion of the undercover operation and the subsequent arrest of the defendants.
[459] Officer A continued to direct the defendants before he left them alone in the hotel in Sidney. He tried to focus them on where they wanted to look for potential targets. The defendants were not sure what their purpose was; whether the explosion was to cause terror or make a political statement. Because they had not decided this issue, they could not determine their targets. Mr. Nuttall continued to ask Officer A where they should place the devices and Officer A became impatient and frustrated with their lack of focus. After several minutes of rambling discussion about possible targets, Officer A took charge and directed the defendants as to precisely what was going to happen. Officer A said he did not want to drive all over Victoria or go to places more than once. He told the defendants that he needed only two places for targets, not five or six. Officer A said that he had told the brothers there would be two locations for the pressure cookers and he had to give them the addresses.
[460] Mr. Nuttall could not sustain his focus on targets and he asked Officer A if the car they were using in Sidney was “clean”. Officer A became angry with Mr. Nuttall; he said that when Mr. Nuttall said things like that it put doubt in him. Officer A told Mr. Nuttall to only think about his end of the plan and not worry about the things that Officer A was dealing with. In an angry tone of voice Officer A told Mr. Nuttall that it was the targets that he had to think about and he had to choose two places. Even Officer A recognized that the defendants were not ready to carry out a plan; he complained to the cover team that the defendants were “all over the map” regarding the plan and the targets.
[461] The defendants’ private conversations in the Sidney hotel revealed the pressure they felt to carry out the mission so quickly. Mr. Nuttall expressed confusion about the mixed messages the terrorist group were giving him about the mission. On the one hand, they had told him not to feel pressured to carry out the plan but, on the other hand, they were pressuring them to do it quickly and come up with a plan that was to be “all their plan”. The defendants expressed their concern that they had no time to think about what they were doing and that Officer A had refused to give them the advice they required. When Officer A returned about an hour later, the defendants had not chosen the targets as he had directed. Privately they had discussed telling Officer A that they had not had enough time to research targets, but concluded this was not feasible because then they would be a liability to the terrorist organization. Mr. Nuttall said maybe they should just tell Officer A that they did not want to go through with the plan and Ms. Korody agreed to do this if that was what Mr. Nuttall wanted. However, both defendants expressed the belief, after some thought, that Officer A’s offer to take them home was not really an option. There was no way out and they had to go through with the plan. They believed that what Officer A really meant was that Ms. Korody could go home but Mr. Nuttall would have to return to do the mission.
[462] The recce concerning possible targets in Victoria was almost as chaotic as the shopping trip for the bomb components. Officer A provided the transportation, something the defendants could not have secured with their limited resources. The recce also illustrated Mr. Nuttall’s immature demeanour and his lack of discretion and knowledge of clandestine operations. As open as Mr. Nuttall was about his jihadist beliefs and ideas, he was equally unable to act or appear inconspicuous. He arrived for the recce dressed in a straw hat with a large flower that made Officer A laugh. Mr. Nuttall had no idea what they were about to do; the first thing he asked Officer A was what was going to happen now. Officer A directed them: they were going to do the recce and choose targets; then they would go shopping for the remaining items required for the plan; and then they would get some food and be ready to go plant the devices by 3:30 a.m. Once again, Officer A was the leader of the group who instructed his foot soldiers what to do and how to do it.
[463] En route to Victoria, Mr. Nuttall complained that he was being rushed and there were at least nine possible targets. Mr. Nuttall had ideas about several locations but he had no concrete plan or preference. He bounced from one possible target to another and showed no common sense. When Mr. Nuttall said it would be good to target an office building, it was Officer A who had to remind him that on Canada Day there would be no one in the office building. When Mr. Nuttall complained that they were being rushed and required two days for a recce, Officer A redirected him and asked him to think about where all the people would be on Canada Day. In response, Mr. Nuttall said downtown. Officer A drove to the Parliament buildings and pointed out two bushes that he suggested would make good hiding places for the devices. Officer A agreed that the cover person had directed him to be more forthright and aggressive in his suggestions for targets so he pointed out the bushes. This direction was obviously necessary because the defendants were reluctant to commit to a target and appeared to be having second thoughts about completing the mission that night. They believed it was all too rushed. Instead of letting the defendants direct the timing of any mission, the police used Officer A’s influence and power over them to pressure them into agreeing to a target, a target that the defendants realized right away was acceptable to Officer A because he had pointed it out several times and called it a perfect location for the devices.
[464] Ironically, the defendants ultimately chose bushes closer to the Parliament buildings despite their belief that it was more likely that in this location no one would be killed. They believed that their message would garner more sympathy if the building was damaged but no one was killed. This discussion would ultimately reveal how undecided the defendants were about what they wanted to accomplish with the pressure cooker devices. The influence of the undercover officers over Mr. Nuttall’s actions became quite apparent when he later expressed great fear that the chosen locations for the devices would not be acceptable to “the brother” played by Officer D, because too few people would be killed.
[465] After revealing these fears to Officer A, Mr. Nuttall got himself deeper into trouble with the terrorist organization because he had angered Officer A. Officer A became angry and impatient with Mr. Nuttall who now wanted to change the targets. When Officer A said that Officer D would not be upset with the targets because this was Mr. Nuttall’s operation, it was clear that Mr. Nuttall did not believe that this was his plan or his operation. He wanted to blow up a truck, not plant pressure cooker devices. Officer A lost his temper with Mr. Nuttall and, quite honestly in my view, exclaimed with a tone of frustration that he had planned everything and all Mr. Nuttall had to do was plant the devices. Later that night Mr. Nuttall and Ms. Korody suggested that the timers be set at different times to ensure that the firefighters and the paramedics would be caught in the second blast; however, in private they both talked about not wanting a huge number of deaths. The defendants agreed they did not care if anyone died because their intention was to damage the government’s reputation by destroying the Parliament buildings as a symbolic bringing down of the government. These private statements are more reliable than the defendants’ statements to Officer A in light of their beliefs about his role in the terrorist organization and their fears that he would have them killed for the slightest indiscretion.
[466] Once again Officer A had to eliminate obstacles raised by Mr. Nuttall to the completion of the mission. When Mr. Nuttall said the Parliament buildings could not be their targets due to the presence of security guards, Officer A assured him this was not a problem because Officer C was an expert in dealing with security guards and he was part of their team. It became clear later that night that Mr. Nuttall believed Officer C (as a mujahideen) meant to kill the guards patrolling the Parliament buildings. A reasonable inference is that Mr. Nuttall held this belief as a result of the cover story so carefully crafted by the RCMP and because of his overactive imagination and his reliance on Hollywood movies for his knowledge of terrorist organizations. Mr. Nuttall also raised the possibility that the police would recognize Officer A’s vehicle and the instability of the pressure cooker devices as impediments to the mission. Officer A said he had taken care of both these problems. When the security guards came up again as a concern, Officer A said his group would create a diversion to take the guards out of the way.
[467] In the end the defendants planted the three pressure cooker devices in the bushes near the Parliament buildings while under the surveillance of a large team of police officers. The RCMP arranged for Officer A to take possession of the pressure cooker devices filled with the fake C4 and a single gram of real C4. The RCMP transported the devices in a van and left the van in an underground parking garage where Officer A showed them to the defendants and made a show of asking them once more if they wanted to proceed with the plan. The defendants agreed they wanted to carry out the plan. When Officer A was gleeful about the amount of C4 and the expected damage that would be caused, the defendants showed their own enthusiasm for this result. However, it was Officer A who had earlier cautioned the defendants to be extremist in their beliefs with Officer D because of who he was and the nature of their terrorist organization. It is unlikely that the defendants would now exhibit any reluctance at the prospect of blowing up the Parliament buildings given their beliefs about the nature of Officer A’s organization and the large sums of money that had already been spent on this plan.
[468] Officer A’s logistics included not only a separate van for dropping off the devices but a “clean” getaway car that addressed Mr. Nuttall’s concerns about leaving fingerprint evidence behind. These are “logistics” that left to their own resources the defendants could not have supplied.
[469] After the devices were planted Officer A paid for the defendants’ return trip to the Mainland and left them in a hotel until they were arrested. En route to the hotel the defendants expressed elation about what they had done and articulated their gratitude to Officer A. Mr. Nuttall remained concerned that no children be hurt by the blast. He also exhibited a continuing fixation with his grandiose plans for jihadist actions. Mr. Nuttall told Officer A that his next mission was to attack the White House and kill the President because the secret service were no match for people like him and Officer A, who were created by Allah to avenge the death of Muslims.
[470] The defendants’ private conversations at the Best Western Motel also demonstrated their fear of Officer A and his terrorist organization, as well as their motivation for carrying out the act of terrorism. The defendants told each other that they were valuable assets to Officer A and his people because they had proven they could go through with the mission. Ms. Korody asked if it was a mistake to show weakness or doubt about herself to Officer A and Mr. Nuttall agreed it was. When Mr. Nuttall found in their things what he believed were parts belonging to the pressure cooker devices, Ms. Korody said that Officer A was going to kill her for this. When she wanted to flush them down the toilet, Mr. Nuttall said Officer A would kill them if it plugged up the toilet and brought the police to their room.
[471] Insp. Corcoran was not directly involved in what occurred during the period June 26 to July 1, 2013. While he was briefed by Sgt. Kalkat and Cpl. McLaughlin at times, he was only generally aware of what had transpired. He was aware that the investigative team planned to have Officer A say things to the defendants to ensure they knew this was not to be a suicide mission and he agreed with the underlying rationale that this was required to ensure public safety. In the inspector’s opinion, where the participants believe they are going to die it increases the uncertainty surrounding their actions.
[472] During the scenarios Mr. Nuttall displayed some knowledge of current events, particularly in the Middle East, and he had memorized passages from the Quran and jihadist literature and video recordings. He also demonstrated knowledge of a considerable number of Arabic phrases. Additionally, there is evidence that Mr. Nuttall had taken computer science courses a few years before the undercover operation began and during the operation he claimed to be able to install and delete programs and operating systems from his computer but not without some considerable difficulties. Mr. Nuttall followed the instructions given to him by Officer A during the early scenarios when he was given jobs to do. He also knew that it was risky to use his own internet IP address to download jihadist material and advised Officer A that he used the Wi-Fi at cafes for this purpose. Mr. Nuttall knew about such things as the invitation only jihadist website Al Ansar.
[473] Despite Sgt. Kalkat’s evidence to the contrary, the Car 67 assessment supported the existence of Mr. Nuttall’s developmental delays and the other members of the investigative team and the undercover shop accepted that he was delayed. While an assessment by Dr. Gill was proposed by the undercover shop, the investigative team did not approve a psychological profile being carried out. This decision was made in spite of references to mental health issues in the PRIME reports and in the statement given by M.C.
[474] Sgt. Kalkat did not believe that Mr. Nuttall had mental health problems. The command team and the undercover shop certainly believed that Mr. Nuttall’s radical views about Islam and his desire to carry out a terrorist act rendered him a risk to the public that was ongoing throughout the undercover operation. There was never an imminent risk, but nevertheless the investigative team felt that Mr. Nuttall’s grandiose ideas and his more specific desire to kill soldiers and P.R. made him a potential safety risk. There is no evidence, however, that the RCMP believed that Mr. Nuttall had mental health problems that increased his risk to the public.
[475] On the other hand, Mr. Nuttall’s conversations with Officer A were characterized by rambling and disorganized thought processes. He was unable to stay focused on a topic and expressed grandiose ideas about jihadist acts as well as other subjects. He was a conspiracy theorist and both he and Ms. Korody demonstrated a gullible nature. On many occasions what Mr. Nuttall said to Officer A about his abilities and his past behaviour proved to be false or exaggerated. The defendants were easily manipulated by Officer A who on many occasions orchestrated the desired outcomes as a result of the control and influence he exercised over them. Ms. Korody simply followed Mr. Nuttall’s directions and adopted his beliefs about Officer A and the other undercover officers. She also appeared to have no independent views about her spouse’s plans for jihad and expressed no concerns about the feasibility of his grandiose schemes.
[476] Dr. Omid Safi testified for the defence as an expert in the Islamic faith, the history of the Islamic faith, contemporary Islamic faith movements and Islamic extremism. Dr. Safi is a world renowned expert in these fields of study. He is currently a professor in the Department of Asian and Middle Eastern Studies at Duke University in North Carolina, USA. He is also the Director of Duke University’s Islamic Studies Centre. He has written numerous books, manuscripts, chapters and peer reviewed papers on aspects of the Islamic faith, including the politics of extremism. Dr. Safi has advised the US State Department in regard to domestic and international terrorism and, in particular, de-radicalization strategies. Although the Crown initially disputed his qualifications to provide the Court with an expert opinion on contemporary extremist views of the Islamic faith, it withdrew the objection after Dr. Safi testified about his qualifications and experience. I found that Dr. Safi was eminently qualified in the areas of expertise sought by the defence and concluded that he could provide the Court with expert opinion evidence on those subjects.
[477] In preparation for giving evidence, Dr. Safi reviewed transcripts derived from interceptions of the interactions between the defendants and the three undercover officers involved in Project Souvenir: Officer A, Officer C, and Officer D. In particular, Dr. Safi reviewed portions of the transcripts from scenarios conducted on May 4, 5, 10, 11, 13, 15, 19, 21, 22, 24, 25, 31; June 5, 6, 16, 17, 18, 19, 25, 26, 27, 28, 29, 30; and July 1, 2013. He also reviewed excerpts from the evidence given during the trial by Cst. Mokdad and Officer A. Prior to testifying, Dr. Safi watched portions of the videotaped intercepts from May 10 and 24, 2013.
[478] Based on the intercepted conversations with the undercover officers, Dr. Safi opined that Mr. Nuttall’s knowledge of the Quran and the Islamic faith was very superficial and often confused. On many occasions Mr. Nuttall expressed a lack of confidence in his understanding of the faith and the Arabic language. He misunderstood verses quoted from the Quran by failing to appreciate their proper context. Dr. Safi testified that even a person with a rudimentary knowledge of the Islamic faith would have known that a convert does not attempt to interpret the Quran and the hadiths of the Prophet Mohammed on his own and that the faith requires him to seek help from a religious scholar to understand their meaning. Moreover, Dr. Safi noted that Mr. Nuttall had stopped going to pray at the mosque, which is a key tenet of the Islamic faith; that is, praying in public with others as an act of remembrance is one of the five pillars. It was Dr. Safi’s opinion, based on Mr. Nuttall’s statements, that the Internet was likely his primary source of knowledge about the Islamic faith.
[479] In regard to spiritual guidance, Dr. Safi testified that it is the tradition of the Islamic faith that a person will study to become qualified to provide opinions on the meaning of the Quran and the hadiths of the Prophets through years of formal education and study similar to the Jewish faith. A person must study for eight to ten years before they earn a diploma and be qualified to provide legal opinions about the faith. While an individual may disagree with these authoritative opinions, they are required to seek out the “fatwas” or learned legal opinions rather than interpreting it on their own. A person qualified to give such legal opinions is called a “mufti”. Both the Sunni and the Shia sects of the Islamic faith have cultivated schools of legal reasoning that form the basis for the rules governing all of the tenets of the faith. Dr. Safi testified that an imam, who is a prayer leader at a mosque, is qualified to provide legal opinions for almost all questions that a Muslim would pose. An imam becomes qualified by attending a seminary and must achieve a minimum level of training in the Quran.
[480] While the Salafi and Modernist traditions within the Islamic faith have tended to support individuals coming to an independent reasoning regarding the Quran and the hadiths, even these groups have rejected any form of violent jihad and have confined this concept to an internal struggle. As Dr. Safi clarified in his evidence, by promoting the introspective approach to the interpretation of the faith, and at the same time failing to point out to Mr. Nuttall the Modernist non-violent approach to jihad, the RCMP isolated Mr. Nuttall from any moderate viewpoint and simultaneously propelled him toward a more radical concept of jihad.
[481] Jihad is defensive or offensive in character. Defensive jihad refers to an internal struggle and to defending oneself against personal attacks. Offensive jihad is the initiation of an external attack and Modernists believe the Quran provides no authority to wage offensive jihad. This is also the approach of mainstream scholarship. Where external jihad is authorized, there are numerous limits including prohibitions on genocide and the killing of civilians, women, and children.
[482] Dr. Safi testified that during the undercover operation Officer A repeatedly denigrated the role of the imam in the Islamic faith when Mr. Nuttall expressed reticence about committing acts of violent jihad. Early on Mr. Nuttall revealed to Officer A his lack of understanding about the Islamic faith and his need for spiritual guidance about his ideas concerning jihad. Instead of encouraging Mr. Nuttall to seek guidance from an educated spiritual advisor, Officer A directed Mr. Nuttall to look to him for answers. The following passages are from the May 10, 2013, transcript:
JN: And what if I go to hell for what I’m gonna do? You know? What if, I think about these things. I, I’m not thinking about my life. I’m thinkin’ about my soul.
OA: Okay, brother, this is what I gonna tell you. If you need
JN: I need spiritual guidance…. from somebody
OA: If you need … spiritual guidance … text me what you need. text it to me, I’ll try to find the answer.
JN: I need a brother I can talk to about these things that …will give me feedback.
OA: You can talk to me brother
JN: I know and I
OA: You can talk to me.
JN: I love talking to you about it cause you’re the only one
OA: You can talk to me.
JN: You’re the only one that I know in the whole “Dunya - world” other than my wife that understands what I’m going through …
[483] Dr. Safi referred to an intercepted conversation from May 15, 2013, where Officer A encouraged Mr. Nuttall to get advice through his personal spiritual advisor, and effectively discouraged him from seeking advice from an imam, immediately after learning that Mr. Nuttall believed Officer A was the only person he could trust about these matters:
JN: … I felt dejected, you know, and right there I kind of felt like my country didn’t care about me at all, … this is where it all started, my search for what I wanted in life, you know. And, this is what I talking about when I say I need spiritual guidance as well. Hey, you’re the only brother I can talk to you about this.
OA: Talking about spiritual guidance, Okay, I gonna … put you in contact with my spiritual guy. When I need something, when I need some guidance, spiritual guidance, he’s the one I call. …
JN: Good.
OA: I’m not gonna tell where he lives.
…
OA: I gonna … give you a phone number
…
OA.: And he’s an excellent brother. He knows everything you have to know.
JN: Yeah.
OA: And he have the same mo-
JN: He’s Ghurabaa [the estranged one]
OA: Yes, because you cannot go to any Imam and talk to him.
[Emphasis added.]
[484] Dr. Safi also referred to an intercepted conversation on June 30, 2013, when the defendants were travelling with Officer A to Victoria to plant the pressure cooker devices. En route to Victoria, Mr. Nuttall expressed reservations about his actions because they might be wrong according to the Islamic faith and he wanted spiritual guidance. Officer A said he would not be able to do this in the following two days. When Mr. Nuttall responded that it was too bad he could not just go to the local mosque and ask the imam these questions, Officer A agreed and said, “But it is not. You can’t just go to the Imam and ask that opinion.” Thereafter, according to Dr. Safi, Officer A denigrated the role and position of the imam in the Muslim faith in response to Mr. Nuttall’s entreaties for spiritual guidance.
[485] In this regard, Officer A said that imams have no greater knowledge of the Quran than Mr. Nuttall and he disparaged the role of authoritative opinions in the Islamic faith. Officer A also reinforced the notion of the will of Allah and pre-determination without any free will and pointed Mr. Nuttall in the direction of the terrorist viewpoint by referring him to Anwar Al-Awlaki:
JN: … See I want to make Allah happy and pleased with me. But I don’t know if, I hope he’s not gonna be angry at me for what I am about to do. But then again I know that they’ve declared war on us so I’m kind of mixed up a bit, y’know? I know we have to fight back to defend ourselves in the “nation”. It’s a big picture, y’know. Does that mean that whoever’s gonna be caught in the blast it’ll be because of His will?
OA: Yeah, that’s right. Yeah. Everything like, if you believe Allah, in Allah, you have to believe that everything that is happening like, he’s alone know when this car’s gonna move. … When this car gonna move. It’s not because the car is running right now, that we’re a hundred percent sure that this car gonna take us where we’re going. No. … It’s with the will of Allah. Because if he want he can make all this boat go down right now. Not, and this car will never go anywhere.
JN: He says also, though, if you kill an innocent man it’s like you killed the, all of humanity. So, is it like, anyone caught in the blast is it because they’re not innocent and they’re guilty of something? I don’t understand it, y’know.
JN: Yeah.
OA: Like do you see what … I mean?
JN: I do. But … Allah said …
OA: that’s what we don’t have to forget.
JN: He says also, though, if you kill an innocent man it’s like you killed the, all of humanity. So, is it like, anyone caught in the blast is it because they’re not innocent and they’re guilty of something? I don’t understand it, y’know.
OA: That’s why I always say you do what you have to do and the rest is to Allah to decide. Just try to please him.
JN: I am.
…
JN: The reason I’m doing this is because I know I’m going to be killing uh, innocent people but the big picture kind of, my “intention” is not to kill people at all, my “intention” is to change … the world.
…
OA: I never, never said, I never said that you’re “intention” was to kill the innocent. You always, you told me what, what, what, why you are doin’ it.
JN: That’s why I asked you, brother, for remember I asked you a while ago should I, that sheik’s number, you said you’d put me in touch with your … spiritual advisor.
OA: Yes yes.
JN: That’s what I need, y’know… I really, really need to speak to him.
OA: You won’t be able to speak to him like, today or tomorrow. Maybe-
JN: I need to speak to him, though, I really do.
…
JN: It’s just too bad I can’t go to the local Mosque and ask the Imam what his opinion is or something, y’know. That’s how it should be, though, Y’know.
OA: But it’s not.
JN: Back in the day when the Khalifa ruled that’s how the, how it was though, wasn’t it?
OA: Yeah, but it’s not. It’s not. That’s what you have to put in your head, brother.
JN: I know.
…
OA: You know what, you know what “brother”. At the end all … all we knows what’s in our heart. Allah only knows our “intention”. We can, we can talk for days and days.
JN: I know.
OA: But only one person that you cannot… hide from is Allah. Because he know what’s inside your heart.
OA: … because even in, in, in Islam they’re not really a spiritual leader they’re an imam why are they in front? Because they, they read more. Because not everybody gonna be, can be … an Islamic scholar… it’s not because it is hard because you don’t need all these scholars. If you have all these scholars in this world you won’t have anybody to, to, to work.
…
OA: Like, that’s how I feel like, it’s not-, Islam is not like a Christianism you have the Pope and the Pope can, he’s he’s, your, your … your intermediary with, with God.
OA: That’s bull.
JN: That’s bullshit, yeah. You’re right.
OA: …Okay it’s between you like, that’s in Islam it’s between you and God. The imam is there to lead the prayer because he’s a more, more not more educated but he reads more, he knows a little bit more than you. You go see him … but all the imam are not the same. … That’s why like, when you can you educate yourself too. … is some imam tell you something you say no no “brother”, It’s “brother” because you are the same level, you don’t call imam father. … Because you are at the same level. … He’s only in front to lead the prayer …
…
OA: …No, you need somebody there but it doesn’t mean that that guy is the spiritual leader, that guy I would listen to. That’s why you have a lot of lecture like, you have Anwar AL-AWLAKI some people like him …
[486] Dr. Safi testified that an imam would have been capable of offering a more rigorous and historically grounded understanding of Islam to Mr. Nuttall. He testified that Officer A mischaracterized the Islamic faith’s reliance upon authoritative legal opinions regarding the tenets of the religion and the importance of scholarly based instruction. Further, by promoting self-education through lectures Mr. Nuttall could read on the Internet, Officer A was propelling him towards the jihadist extremist views of Islam and the Muslim faith. The Internet is the primary propaganda tool for extremist groups that use religion as a justification for violence. Dr. Safi testified that most people who become radicalized gain their knowledge of the Islamic faith on the Internet and not from studying at a mosque. Just like Osama Bin Laden and other terrorist Islamic figures, Officer A denigrated traditional Islamic scholars as useless and without worth; violent jihadists disparage the entire apparatus of legally based religious thought in order to appeal to politically frustrated targets with their propaganda.
[487] Dr. Safi testified that Officer A’s version of pre-destination without free will has, by general consensus, been ruled heretical for the past 1000 years. The mainstream consensus marries the concept of an omniscient, all knowing God with the free will of God’s subjects to make choices about their actions within the limits of God’s laws. Dr. Safi testified that the assertions of Officer A that whatever you do is God’s bidding would be regarded as absurd by classically trained Islamic scholars and clearly reflect the views expressed by extremists.
[488] Dr. Safi also commented on Officer A’s statements to Mr. Nuttall about ensuring he had the right “intention” behind the act of violence as a means of justifying his actions to Allah. That is, if your intention is pure your acts will also be sanctioned by Allah. Dr. Safi testified that in the Islamic faith one cannot justify breaking religious laws on the grounds of a laudable “intention” or motivation. Muhammed taught that the external act and the underlying intention must be consistent with the tenets of the faith. Dr. Safi testified that what is in your heart or how you feel about a proposed course of action is irrelevant to whether you are acting in accordance with the faith. Further, Dr. Safi testified that when Officer A explained to Mr. Nuttall that if one does what is in their heart they are automatically carrying out the will of Allah, he contradicted well settled classical Islamic teachings because God is not the agent of moral choices. The dominant thread of Officer A’s advice to Mr. Nuttall when he expressed reservations about carrying out jihad was that his doubts meant nothing because whatever you do and whatever happens is Allah’s will: just look into your heart and whatever you do is right in Allah’s eyes.
[489] Dr. Safi provided a number of examples of Officer A’s misdirection in regard to the Islamic faith. On May 24, 2013, when Officer A took the defendants to Victoria for the recce, he provided spiritual guidance after Mr. Nuttall expressed reservations about carrying out violent jihad on religious grounds:
OA: you know what, I was, I was thinking of what you were saying about talking to spiritual, a spiritual uh, guide.
JN: yeah.
OA: … uh, you know what, like we each, each of us we have like our, have our, our own destiny …
JN: Yes.
OA: Like uh, you, we need to do what’s in our heart. Like if, if we believe what we are doing is the right thing, and it’s our destiny, our paths, …
JN: Yeah.
OA: And don’t, we don’t have to forget that our path, it’s predetermined by Allah.
JN: That’s right
OA: Allah chooses it for us. We don’t choose it for ourselves.
JN: No.
OA: That, and that’s what you have to think. Brother, it’s what’s in your heart.
JN: Well, you know what “istikada” is right?
OA: Like, if you believe what’s in your heart, it’s the right thing, like and that’s what you want, that’s the main thing. That’s what Allah want.
[490] Dr. Safi testified that Officer A’s instruction that God is in charge of moral decisions is against classical teachings within the Islamic faith. It renders accountability in the afterlife a farce if everything one does is pre-determined by Allah. Officer A continued to instruct Mr. Nuttall to look into his heart to see what it was telling him to do and that was the will of Allah. He reinforced the notion of self-instruction regarding moral dilemmas rather than seeking guidance from an educated spiritual guide. Later in the same conversation, Officer A brought together the concept of self-instruction, by looking into your heart, with pre-destination by Allah in a way that suggested Mr. Nuttall did not have to decide anything because it was all up to Allah:
OA: If you believe that it’s the right thing to do, then, because if if, if Allah doesn’t want you, … if Allah doesn’t want you to do something, or if, everybody doesn’t want you, all the world, one by one, doesn’t want you to do something, but Allah wants you’ll … its gonna happen. You know that, but it’s everything, what you believe …
JN: And on the same other side of the coin, if the whole world wanted me to do it, and they all have banded together to help me, but Allah didn’t want it to happen, they could not help me.
OA: No. Nobody could.
JN: So, at the end of the day it’s up to Allah.
OA: Yes. But it’s also what you feel in your heart. And what is the “intention” the “intention” you have “the aptitude.”
[491] Dr. Safi testified that particularly since 9/11, mainstream Muslims have advocated a very restricted use of violence and they do not subscribe to the theory that you merely look into your own heart to determine the will of Allah. In cross-examination, the Crown suggested that Muslims routinely use the phrase, “God willing”, and this connotes pre-determination based on a lack of free will. Dr. Safi testified that the use of this phrase in no way absolves the person from taking responsibility for their own actions and exercising free will. Further, the Crown suggested that Officer A’s instruction to Mr. Nuttall to “look into his heart” simply meant that he had to decide what he really wanted to do. In response, Dr. Safi testified that many times when this advice was given, its context encouraged Mr. Nuttall to carry on with his jihadist mission and discouraged him from seeking scholarly religious advice about his intended course of action. Coming from the only person he knew who was qualified to give spiritual advice, this guidance was dangerous. Mr. Nuttall did not view himself as qualified to decide whether his jihadist plans were halal or haram and he was searching for answers to make sense out of what he had learned about the Muslim faith. On several occasions Officer A filled this gap in with his knowledge of Islam in a way that suggested Mr. Nuttall was on the right path.
[492] The Crown also suggested that Mr. Nuttall was only looking for radical extremist views based on what was found on his computer hard drive such as speeches by Bin Laden and Anwar Al-Awlaki. Dr. Safi testified that some of Anwar Al-Awlaki’s early studies on the Prophet were quite moderate and, in mid-April 2013, Mr. Nuttall referred Officer A to a scholar named Albani whose teachings are mainstream. He testified that reading the work of these scholars is an indication that Mr. Nuttall was also interested in moderate views of Islam.
[493] In addition, Dr. Safi noted that Officer A continually referred to Mr. Nuttall as the “Amir”, which is the term jihadist extremists use for their leader. Officer A then related this position as leader to what was in Mr. Nuttall’s heart about doing jihad.
[494] On May 24, 2013, the defendants were introduced to Officer C who provided the same religious guidance about the will of Allah and looking into your heart for spiritual advice:
OC: only, only only Allah knows what’s in our hearts he. The heart .. is protected right, it’s sealed. Nobody knows what’s in, what’s in your heart, right?
OA: You see what I was telling you
OC: Except for Allah, you know what I mean? So even you see people out there, and some people judge them, and we say you know, look at this person he’s a Kaffir for example. We don’t actually know what’s in that person’s ..
JN: That’s right.
OC: heart, right. Only Allah does.
[495] Even Officer D used religious references during his interviews with Mr. Nuttall and Ms. Korody on June 29, 2013. When Mr. Nuttall said he believed they were in the “final days”, Officer D replied, “Yeah. Some people would say that in the Qur’an the day of ‘Judgment’ is among us and the signs are here.” Dr. Safi testified that the Day of Judgment is an extraordinarily significant concept for Muslims and only Christ knows when it will occur.
[496] Another disturbing aspect of the relationship between Officer A and Mr. Nuttall, according to Dr. Safi, was Officer A’s attempts to interpret Mr. Nuttall’s dreams. Dreams are very significant in medieval Islamic culture; a dream revealed spiritual guidance. Officer A purported to interpret Mr. Nuttall’s dream and in doing so played the role of spiritual advisor. Dr. Safi testified that dream interpretation is part of the trust and guidance relationship developed between a person and their spiritual advisor.
[497] Dr. Safi also testified that Officer A addressed other religious qualms expressed by Mr. Nuttall that stood in the way of carrying out jihadist acts of violence. For instance, on May 22, 2013, Mr. Nuttall disclosed that he owed about $1,000 in debts to various people and he knew that it was prohibited by the faith to go for jihad before all one’s debts are paid. In response, Officer A said that someone else could pay Mr. Nuttall’s debts. Officer A also agreed to become Ms. Korody’s guardian or wali when they were formally married in a Muslim ceremony. Dr. Safi testified that Muslim marriages are more like a pre-nuptial agreement because the woman is permitted to retain her property. A guardian, usually a very close older male friend or the wife’s father, ensures that the woman’s rights are protected.
[498] Dr. Safi also opined that Officer A’s religious advice specifically had the effect of promoting radical extremist views of the faith. When Mr. Nuttall said that only Officer A could advise him about the “true Islam”, Officer A responded, “The true one you wanna be listening to, what uh, you listen to uh, Al Anwar.” Although Anwar Al-Awlaki was originally a mainstream scholar, his more recent lectures were radical and promoted violent jihad. He was killed in a drone strike by the US government.
[499] Dr. Safi also found in Officer A’s religious discussions with Mr. Nuttall a comparison of Islam with gangs like the Hells Angels. Once in a gang there is no way out except death: “blood in, blood out”. Although it was Mr. Nuttall who raised the topic of the Hells Angels, it was Officer A who confirmed incorrectly that the only way a person leaves the Islamic faith is by death. In fact, there are no official crimes for apostasy in the Islamic faith for those living in the West and in most other countries.
[500] In cross-examination, the Crown attempted to establish through Dr. Safi the common characteristics of a person who has become radicalized and ascribes to the philosophy of violent jihadists. Dr. Safi testified that much of the extremist Islamic propaganda found on the Internet is widely viewed despite its gruesome nature and only a miniscule percentage of the people who read this material or watch the videos go on to become terrorists. Further, he testified that many of the beliefs espoused by terrorist groups such as ISIS continue to be the subject of debate among mainstream Muslims who have no intention of acting out violently as a means of addressing political grievances. In his view, there are few accurate predictors of violent behaviour where religious beliefs are used as an explanation or justification for killing others. While there have been a number of terrorist attacks in the US by marginalized young men with political grievances who became radical Islamic followers by accepting internet propaganda, there is no correlation between these characteristics and the likelihood a person will become radicalized. In other words, a young male with political grievances who espouses the extremist propaganda he reads on the Internet is not more likely to carry out a terrorist act. Dr. Safi’s point is that there are millions of Muslims who espouse hate and anger at Western governments, people of different faiths, and different Islamic sects; however, very few go on to carry out a violent act against these groups. One should not be branded as a terrorist for talking about it.
[501] The Crown suggested that Mr. Nuttall’s quest for knowledge of the “true Islam” was limited to the perspective of violent jihadists. Dr. Safi testified that based on the evidence he had read, it appeared that Mr. Nuttall did not know enough about the concept of true Islam to articulate what it was. While he once said he offered to teach people at the mosque about the true Islam, Dr. Safi pointed to the numerous references in the transcripts where Mr. Nuttall asked Officer A to give him spiritual guidance on the true Islam. In particular, Mr. Nuttall wanted to know where violence fit into the concept of true Islam to ensure that what he planned to do was right in the eyes of Allah. Dr. Safi also opined that Mr. Nuttall had broader concerns about his lack of understanding of the Islamic faith. When he recounted the Somali pirate story, Mr. Nuttall voiced a concern about being used or taken advantage of due to his lack of knowledge.
[502] Acknowledging that Mr. Nuttall had previously been exposed to some type of instruction in the Islamic faith, Dr. Safi opined that de-radicalization strategies were appropriate because Mr. Nuttall was expressing a desire to obtain spiritual guidance about doing violent jihad. Dr. Safi emphasized that Mr. Nuttall had only brief encounters with imams in the mosque environment because he had been shunned when he expressed jihadist views. Dr. Safi also rejected the Crown’s suggestion that Officer A was attempting to get Mr. Nuttall to rethink his jihadist plans when he told him to “look into his own heart.” In response to the Crown’s position, Dr. Safi testified that Officer A appeared to say these things repeatedly in a way that encouraged Mr. Nuttall to continue with his course of action and, at the same time, discouraged him from seeking outside guidance.
[503] Dr. Safi commented on Officer A’s gifts of money to Mr. Nuttall. While it is a Muslim belief that one should not let others go hungry, an observant Muslim would not give cash to someone for fear it would hurt their pride and embarrass them. Instead, they might buy them groceries and leave these on their doorstep anonymously.
[504] The Crown and defence each filed lengthy and comprehensive written submissions. I have reviewed these in their entirety but have only summarized the submissions on entrapment and abuse of process in this judgment. Although the parties’ submissions on these two concepts overlap because many of the relevant circumstances apply equally to both, I found it useful to consider each factor separately because of the different legal standards applicable to each concept.
[505] Both Crown and defence rely upon Mack; however, they have divergent views on the interpretation of its principles and its application to the facts of this case. They agree, however, that entrapment may be committed in two ways: (1) authorities provide a person with an opportunity to commit an offence without a reasonable suspicion that he or she is already engaged in such criminal activity; or (2) although having a reasonable suspicion, authorities go further than providing an opportunity to commit the offence and induce its commission.
[506] The defence argues that the conditional promises of assistance presented to the defendants did not crystalize into an opportunity to commit a terrorist offence until June 16, 2013, when, during the drive to Kelowna, Officer A committed to providing C4 to the defendants in order that they could carry out a terrorist plot that involved exploding pressure cookers. The defence says that until this point in the operation, the police only took investigative steps short of providing an opportunity to the defendants.
[507] Based on the timing of this opportunity, the defence argues the police had no reasonable suspicion that the defendants were already involved in terrorist offences. Although the defence concedes that in his early meetings with Officer A, Mr. Nuttall’s extreme views of jihad would have given the police reasonable suspicion, by June 16 this suspicion had evaporated. Mr. Nuttall talked up jihadist action but never took any steps towards the accomplishment of this objective prior to the offer of the C4. He repeatedly demonstrated his inability to craft a plan, carry out a plan, or even access what he might need for a plan. The defence argues that the police proceeded with the offer of C4 on the erroneous assumption that predisposition to a crime (manifested by the expression of jihadist views and a desire to commit a jihadist act) was enough to ground reasonable suspicion.
[508] The defence submits that the police treated the defendants as a team and made the offer of C4 to both of them based on that assumption. It maintains the police knew that Ms. Korody marched to Mr. Nuttall’s orders and that any offer to him was the equivalent to an offer to both of them. In this regard, the defence says that the police had even less suspicion that Ms. Korody was already involved in criminal activity than Mr. Nuttall when the offer of C4 was made.
[509] The Crown counters that this is not a case where the police ever offered the defendants an opportunity to commit a terrorist offence. Rather, the Crown says the police reacted to a variety of different terrorism schemes proposed by the defendants and Officer A pretended to consider them, ultimately giving assent or endorsement to the pressure cooker plan proposed by Mr. Nuttall with Ms. Korody’s support. This is the Crown’s primary position.
[510] In the alternative, the Crown argues that the first point at which an offer could be said to have been made is during the Kelowna scenarios when the police offered the C4 for the pressure cookers. By this time, says the Crown, there was ample evidence to support a reasonable suspicion and the actions of the police cannot be regarded as random virtue-testing. In this regard, the Crown refers to the CSIS advisory letter, the M.C. complaint, Mr. Nuttall’s violent criminal record, his expression of terrorist beliefs, his statements that Ms. Korody wanted to participate in terrorist acts, and her participation during the Whistler and Kelowna scenarios.
[511] The Crown says that some of Mr. Nuttall’s plans were grandiose but others were practical and straightforward. The threat posed by the defendants must be the paramount consideration. Plotting a terrorist event is an offence and that is what the defendants were doing with Officer A.
[512] The Crown raises a preliminary argument with respect to the effect of the jury’s verdict on the ability of the defendants to claim they were induced. It submits that because the defendants argued before the jury that they lacked the mens rea required for the terrorism offences but were convicted nevertheless, they cannot now argue that their actions were induced by the RCMP. In this regard, the Crown says that motive is an essential element of the terrorism offences committed by the defendants and thus, by convicting them, the jury has already concluded that they were motivated by political, ideological or religious objectives and not by any inducement held out by the police. In support of this proposition the Crown relies upon R. v. Brisson, 2009 BCSC 1606, which articulates the principles for determining what a jury necessarily decided on its pathway to conviction. Because the jury did not accept the defence position that the defendants acted on the basis of a fear of the terrorist group or out of love for Officer A, they cannot now maintain that the police conduct constitutes entrapment. The Crown says that the defence are constrained to argue that an average person, without reference to their specific vulnerabilities, would have been induced to commit the crime.
[513] In reply, the defence argue that while the jury was instructed that it could consider the actions of the police when determining whether motives other than those defined in s. 83.01 of the Code caused the defendants to commit the terrorism offences, the jury was only required to consider whether one of the defendants’ motives was caught by this provision. The jury was not instructed to determine whether a prohibited motive was the defendants’ sole motivation, and the defence onus was explained to the jury as raising a reasonable doubt that the defendants’ motives “did not include any of the three terrorist circumstances.” Thus the defence says that the jury verdict only establishes that one of the motives the defendants acted upon was based on political, ideological or religious beliefs or objectives. The Court must assume the jury followed its instructions and the Crown must show that the only inference from the verdict is that the other motives were rejected entirely: R. v. Punko, 2012 SCC 39.
[514] Further, the defence argues that the subjective finding of mens rea by the jury has little relevance to the Court’s objective evaluation of the police conduct pursuant to the tests articulated in Mack. It is an entirely different inquiry primarily focused on what the police did from a public policy perspective.
[515] The defence argues that virtually all of the factors articulated in Mack are at play in this case. It says that there was a multi-faceted approach taken by the RCMP to manipulate the defendants into committing an offence that was entirely manufactured and, for the most part, carried out by the police. The defendants were almost irrelevant to the plot regarding the pressure cooker devices, which took on a life of its own spearheaded by the RCMP. Further, the defence argues that the average person test, recognizing the vulnerabilities possessed by the defendants, would be satisfied in this case due to the multiple inducements offered by the police.
[516] The defence argues that the decision of the RCMP to become the defendants’ spiritual advisor during the operation acted as an inducement and demonstrated impropriety on a number of levels. Officer A exploited the human bond between a person and their spiritual mentor, and perpetuated the defendants’ desire to be his disciples. In doing this, the police offended the value society places on maintaining the dignity and privacy of interpersonal relationships, particularly confidential relationships: R. v. Gruenke, [1991] 3 S.C.R. 263. Further, the defence argues that by acting as a spiritual guide, the police exploited the defendants’ vulnerabilities: they were recent converts to Islam, had only a superficial understanding of the religion, were socially isolated, and self-isolated from mainstream spiritual guides. The police encouraged and promoted religious isolation by denigrating the role of the imam in the Islamic faith and by instructing the defendants to look “inside their hearts” for guidance. In addition, the defence argues that the very advice given to the defendants when they expressed qualms about carrying out violent acts that could kill people acted as an inducement to continue with the plan regardless of these doubts. Given the other vulnerabilities exhibited by the defendants, there was no question that they would be susceptible to the directions coming from Officer A. The defence argues that the religious advice was persistent in the face of repeated doubts expressed by the defendants and was full of trickery and deceit because it was a distorted view of the Islamic faith. Lastly, the defence argues that Officer A’s actions amounted to a non-trivial interference with the defendants’ right to freedom of religion under s. 2(a) of the Charter: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Welsh, 2013 ONCA 190; and Syndicat Northcrest v. Amselem, 2004 SCC 47.
[517] In addition, the defence argues that much of the police conduct during the undercover operation was illegal and acted as a direct inducement to commit the offence. The police assistance that culminated in the planting of the pressure cooker devices included payments of money to the defendants; the provision of food, cigarettes and coffee; transportation; accommodation; tools, technical advice, and the supply of bomb components; and help with construction of the devices. The defence says that the police obtained a s. 25.1 authorization for only two officers and only for the use of the C4 in the pressure cookers (s. 81(1)(b)(ii) of the Code).
[518] In particular, the defence argues that the acts of the police constituted the following offences:
a) facilitation of a terrorist activity contrary to s. 83.19: R. v. Lindsay, 2009 ONCA 532, leave to appeal ref’d [2009] S.C.C.A. No. 540; R. v. Beauchamp, 2009 CanLII 64185 (Ont. S.C.J.); R. v. Ahmad, 2009 CanLII 84774 (Ont. S.C.J.); R. v. Kwok, 2015 BCCA 34; R. v. Nuttall, 2015 BCSC 943; and R. v. Khawaja, 2012 SCC 69;
b) providing property or services for a terrorist activity contrary to s. 83.03;
c) knowingly instructing persons to carry out activities for the benefit of, at the direction of, or in association with a terrorist group for the purpose of enhancing its ability to carry out a terrorist activity contrary to s. 83.21; and
d) aiding and abetting the defendants in making or having in their possession an explosive substance with intent contrary to s. 81(1)(d), s. 465(1)(c), s. 431.2(2) and s. 83.2: R. v. Briscoe, 2010 SCC 13.
[519] The defence submits that the police gave little thought to the illegal actions that would necessarily be part of the operation due to its nature and despite the conditions imposed by RCMP National Headquarters regarding authorizations under s. 25.1.
[520] The defence maintains there were other investigative techniques available to the police and they gave inadequate consideration to engaging some of these resources during Project Souvenir. In particular, the defence points to the availability of ongoing surveillance, wiretap, a DNR, interviews of associates and neighbours, monitoring their use of the Internet and social media, overt contact with the police and a peace bond as alterative investigation tools.
[521] The defence says the police attempts to induce the defendants into committing a terrorism offence were relentless and persistent over a period of over four months. They exerted pressure on the defendants to craft a plan that was feasible and, but for the overwhelming efforts of the police to not only generate the plan but carry it out, the defence says the defendants would not have committed the offence and would not have been capable of committing the offence. The sophisticated terrorist group instilled fear by the realism they created in the cover story and the anger and unhappiness they expressed with the defendants’ failure to come up with a realistic plan acted as a strong inducement. The group also exercised its influence by giving the defendants money, travel, emotional support, friendship, spiritual guidance, and the items necessary to carry out a plan. The pressure exerted at the end of the operation became even greater when it appeared that the defendants were not ready to commit to a plan. The “outs” were not accepted by the defendants due to their fear of the sophisticated group and these offers contained no religious justification for backing out of the mission, which was the defendants’ underlying motivation. After propelling the defendants towards violent jihad by their spiritual guidance, the police rendered ineffective any “out” that was not similarly grounded in their beliefs about the Islamic faith.
[522] The defence says that the police became involved in this sophisticated undercover operation at a time when there was no evidence of any ongoing criminal activity and they instigated the offence by choosing the date, the devices, the location and the logistics of the plan. There was no evidence of a high risk terrorist plot in the works that the police had to infiltrate and stop. There was no immediate concern that the public was at risk and there was nothing the RCMP had to do to address that risk.
[523] The defence argues the RCMP exploited the vulnerabilities of the defendants as socially isolated, poor, recovering drug addicts. Their only friend became Officer A and they felt abandoned when he was not with them. They repeatedly expressed their love for Officer A and that they would die for him. Officer A exploited the defendants’ blind devotion to him by manipulating their desires and their actions. Officer A also purposefully isolated the defendants from outside influences and the RCMP ignored their health problems and their drug issues. The RCMP also knew the defendants were very suggestable to ideas and that they would have, and did, believe anything that Officer A told them. Much of the information that came to light about the defendants’ vulnerabilities was either ignored by the investigative team or it was not brought to their attention.
[524] Lastly, the defence maintains that what the police did was out of all proportion to the part played by the defendants in the pressure cooker plan. Each aspect of the plan, up to the planting of the devices, was carefully orchestrated by the police. They provided the explosive substance, the transportation, tools, accommodation and a place to build the devices; they constructed the devices; they took the defendants to Victoria where they found the site for the planting of the devices; and they took the defendants to the Parliament buildings to plant the devices. By contrast, the defence says the defendants did virtually nothing.
[525] The Crown argues that an objective analysis of the police conduct that is mandated by Mack, without subjective consideration of the defendants’ nature, apart from proven vulnerabilities, inevitably leads to a conclusion that the RCMP’s actions were within acceptable standards. Although the undercover operation used a ruse of a criminal organization, the Crown argues that this is an acceptable police investigative technique particularly for terrorism offences as no other police techniques are adequate to infiltrate these groups. Even extremely violent simulations by undercover officers have been sanctioned as necessary to properly investigate serious crimes, and Project Souvenir used no direct or indirect violence to pressure the defendants. In support of this proposition, the Crown cites R. v. Rothman, [1981] 1 S.C.R. 640; R. v. El-Sheikh-Ali, 1993 CarswellOnt 4337 (C.J.); R. v. Frost (1994), 91 Man. R. (2d) 298 (Q.B.), aff’d 100 Man. R. (2d) 170 (C.A.); R. v. Showman, [1988] 2 S.C.R. 893; and R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.).
[526] The Crown agrees that abuse of process authorities can provide some guidance in this case but argues that the standard of conduct expected of the police is low and nothing suggests that the RCMP abused their authority at any time in the operation. As an example, the Crown cites R. v. Randle, 2016 BCCA 125, where the police pretended to kill a police informant while the accused waited nearby. The accused confessed to a murder during this Mr. Big operation. The Court of Appeal concluded that this type of conduct would not offend the public’s notion of acceptable police conduct. The Crown also relies on Cahill as authority for the extent to which the police are permitted to use violence and illegal acts to infiltrate and obtain evidence of offences within a criminal organization.
[527] The Crown additionally relies on three terrorism cases in which the defence of entrapment was rejected: R. v. N.Y., 2012 ONCA 745; R. v. Hersi, 2014 ONSC 4143; and R. v. Abdelhaleem, 2010 CarswellOnt 9938 (S.C.J.). The Crown argues that a consistent theme in these cases is that to investigate terrorism offences the police must have great latitude to act in an extraordinary manner due to the high risk and the urgency of these types of offences.
[528] In regard to freedom of religion, the Crown argues that s. 2(a) of the Charter does not protect religious beliefs that cause harm to others and only precludes compulsion to act contrary to one’s beliefs: Syndicat Northcrest. The Crown maintains that there was no interference with the religious freedoms of the defendants because they were free to ignore the statements by Officer A even if these could be characterized as religious as opposed to cultural advice. Moreover, the Crown says the police are not obliged to counsel the defendants to change their religious beliefs so as to adopt ones that are more socially acceptable: N.Y. at para. 154. Further, the Crown argues that Officer A was never positioned as the defendants’ religious advisor; that he avoided giving them any advice; that their beliefs were formed long before Officer A came into their lives; and that what Officer A told the defendants was accurate and merely confirmed their own radical beliefs surrounding the Muslim faith. The Crown argues that the defendants only wanted to consult a radical extremist spiritual advisor and the police could not accommodate this request. Given little choice, the manner in which Officer A handled the constant questions from the defendants was reasonable. Lastly, the Crown says that Officer A essentially asked the targets what their intentions were when he said they “must look into their hearts” and this is a permissible investigative technique.
[529] The Crown also submits that the evidence of Dr. Safi should be given little or no weight because he did not have the benefit of significant portions of the evidence; he was demonstrably biased in favour of the defendants, was not a neutral and dispassionate expert and did not acknowledge that he was bound to be neutral in his opinions; he knew little of de-radicalization programs in Canada; and, in any event, his evidence confirmed that Officer A had not misrepresented the tenets of the Muslim faith in his statements to the defendants. In support of its argument, the Crown relies on White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 47, for the proposition that an expert must state in evidence that he or she is aware of the duty of impartiality.
[530] The Crown argues that the actions of the police did not amount to an offence because all of the terrorism offences in the Code require proof of an unlawful motive; that is, enhancing the ability of a terrorist group to carry out or facilitate a terrorist activity: Khawaja; and N.Y. at para. 138. The Crown argues that at all times the actions of the police here were intended to thwart terrorist activity rather than promote it.
[531] Turning to the inducement factors described in Mack, the Crown says that overall the plan that was executed was the defendants’ plan and not a crime manufactured by the police; the defendants were excited and always willing to carry it to its conclusion, and they were at all times thrilled to be given the opportunity to fulfil their dreams of a jihadist mission that caused death and mayhem. The Crown argues that the police had little choice of investigative techniques and it was necessary for undercover officers to pose as terrorists in order to gather evidence of the most serious offence in the Code: mass murder. Further, the Crown says that even if one accepts at face value all of the inducements argued by the defence, the average person would not have been induced to commit mass murder. The Crown argues there were no persistent requests to participate in terrorist activity and refusals by the defendants; they were always willing to participate. The police gave “outs” on multiple occasions.
[532] In addition, the Crown maintains that the promises made by the undercover operator were not inducements to the defendants and, to the contrary, should have deterred them; the inducements were only conditional and indefinite; were made to maintain public safety; were only made to maintain Officer A’s cover as a terrorist; and were not tied to committing the offence. Further, the Crown argues the money and monetary value of the items purchased for the defendants would not have elevated their social status contrary to the principles of R. v. Hart, 2014 SCC 52.
[533] The Crown argues that while the police used the friendship between Officer A and the defendants to gather evidence of their plot, there was never any exploitation of this relationship that went beyond what is part of every undercover operation, particularly one that seeks to infiltrate a terrorist organization. Further, the Crown says that the defendants may have had certain vulnerabilities; however, the police at no time exploited them as a means of investigating crimes. The Crown says that if anything, the defendants’ vulnerabilities should have been a deterrent to embarking upon a criminal plot. The Crown also argues that there is little evidence to support a claim that the defendants were mentally ill, intellectually slow or otherwise vulnerable due to their physical and emotional health. Being disorganized and “odd” does not equate to vulnerability.
[534] Lastly, the Crown says that the role played by the police was relatively minor compared to the defendants’ contribution to the mission; that there were no express or implied threats by the police; if the defendants were afraid of the police, it was not fear induced by their words or conduct, which were entirely within acceptable limits; and the police conduct did not undermine constitutional values, including freedom of religion.
[535] In the alternative, the defence argues that the convictions should be stayed as a result of an abuse of process by the police. The defence maintains this is one of the clearest of cases where the actions of the police would shock the community and bring the administration of justice into disrepute. In this regard, the defence points to the illegal acts committed by the police, the violation of the defendants’ rights under s. 2(a) of the Charter, and the overall character of the police undercover operation as going far beyond what our society could sanction as acceptable investigative measures even for serious crimes. In support of a stay based on abuse of process, the defence relies upon R. v. Regan, 2002 SCC 12; R. v. Campbell, [1999] 1 S.C.R. 565; Hart; R. v. Babos, 2014 SCC 16; and R. v. Conway, [1989] 1 S.C.R. 1659.
[536] The Crown argues that the police did not commit illegal acts or violate the defendants’ rights under s. 2(a) of the Charter. Further, if the Court concludes that the actions of the police amounted to a criminal offence or interfered with the defendants’ Charter rights, the Crown maintains this conduct does not justify a stay of proceedings because it was not egregious, was necessary to combat offences that are extremely serious and difficult to detect, and would not shock the community. A stay is therefore not necessary to address the misconduct of the police in a prospective manner. In support of its argument the Crown relies upon the Ontario Court of Appeal decision in N.Y.; and Regan at para. 55.
[537] Mack remains the leading Canadian authority on entrapment.
[538] In Mack, the police engaged a known drug dealer (Momotiuk) to act as their agent in the investigation of Mr. Mack for drug trafficking because he was someone previously known to Mr. Mack. Momotiuk repeatedly solicited Mr. Mack’s participation in drug transactions and, after constant refusals on the part of Mr. Mack, took him to the woods and produced a gun purporting to show Mr. Mack his marksmanship. Momotiuk did not fire the gun but did say “a person could get lost.” Thereafter, Mr. Mack continued to refuse to become a party to drug dealing until he was shown $50,000 by an undercover officer in clandestine circumstances. At this point Mr. Mack agreed to arrange a drug transaction and was arrested upon delivery.
[539] At trial, Wetmore Co. Ct. J. dismissed the defence of entrapment, concluding that Mr. Mack had become involved in the trafficking for profit rather than through any inducement by the police agent (as quoted in the Supreme Court decision at para. 7):
I find, however, that it is far more probable that the accused became involved in this transaction for profit, rather than through persistent inducement and fear. Given his record and the alacrity with which he produced on seeing the $50,000 in March 1980, I find it much more probable that he then saw a situation of profit and acted upon it. There is no doubt in my mind that the opportunity was made available through the tactics of the police and their agent, but that falls short of entrapping a person into the commission of an act that he had no intention of doing.
[540] The Court of Appeal upheld the judgment at trial.
[541] Justice Lamer wrote for the Supreme Court on further appeal. As an overview, he drew a crucial distinction between a situation in which the police – acting on reasonable suspicion or in the course of a bona fide enquiry – provide an opportunity to a person to commit a crime, on the one hand, and the state actually creating or inducing a crime for the purpose of prosecuting an accused, on the other. The former conduct is permitted because it is limited to securing evidence of an offence when it is committed. However, the latter conduct is not permitted because it goes beyond what is tolerable in our community; that is, to procure a person into criminal misconduct by trickery, persuasion or fraud.
[542] 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):
77. It is the belief that the administration of justice must be kept free from disrepute that compels recognition of the doctrine of entrapment. In the context of the Charter, this Court has stated that disrepute may arise from "judicial condonation of unacceptable conduct by the investigatory and prosecutional agencies": R. v. Collins, [1987] 1 S.C.R. 265, at p. 281. The same principle applies with respect to the common law doctrine of abuse of process. Conduct which is unacceptable is, in essence, that which violates our notions of "fair play" and "decency" and which shows blatant disregard for the qualities of humanness which all of us share.
…
79. It is essential to identify why we do not accept police strategy that amounts to entrapment. There could be any number of reasons underlying what is perhaps an intuitive reaction against such law enforcement techniques but the following are, in my view, predominant. One reason is that the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals. Another is the concern that entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct. There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. We may feel that the manufacture of crime is not an appropriate use of the police power. It can be argued as well that people are already subjected to sufficient pressure to turn away from temptation and conduct themselves in a manner that conforms to ideals of morality; little is to be gained by adding to these existing burdens. Ultimately, we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions. These reasons and others support the view that there is a societal interest in limiting the use of entrapment techniques by the state.
[543] 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.
[544] 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.
[545] 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):
109. It could also be argued that the use of the term "entrapment" itself dictates an inquiry into the predisposition of the individual accused. The argument is really one of causation. As I understand it, the idea is that even if the police conduct, viewed objectively, has gone further than the provision of an opportunity, in the case of an accused who is predisposed, it cannot be said that the reason or cause for his or her commission of the offence is the actions of the police; rather, it is because of the accused's predisposition to crime. In my opinion, the test for entrapment cannot be safely based on the assumption that a predisposed person can never be responding to police conduct in the same way a non‑predisposed person could be. It is always possible that, notwithstanding a person's predisposition, in the particular case it is the conduct of the police which has led the accused into the commission of a crime.
110. Those who argue for an inquiry into predisposition, and thereby deny the availability of an allegation of police misconduct, ignore this possibility. I am unwilling to do so. Obviously it is difficult to determine exactly what caused the accused's actions, but given that the focus is not the accused's state of mind but rather the conduct of the police, I think it is sufficient for the accused to demonstrate that, viewed objectively, the police conduct is improper. To justify police entrapment techniques on the ground that they were directed at a predisposed individual is to permit unequal treatment. I gratefully adopt the criticisms espoused in the minority and dissenting opinions of the judgments of the United States Supreme Court discussed earlier, which have convinced me of the fundamental inequality inherent in an approach that measures the permissibility of entrapment by reference to the predisposition of the accused.
[546] Justice Lamer concluded that entrapment occurs in circumstances where: (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide police inquiry; or (b) although the police have a reasonable suspicion or are acting in the course of a bona fide police inquiry, they go beyond providing an opportunity and induce the commission of the offence.
[547] Despite the emphasis the Court placed on the conduct of the police, rather than on the predisposition of the accused to criminal misconduct, some subjective inquiry into the characteristics of the accused is relevant to both forms of entrapment. With respect to the former, Lamer J. said the following regarding reasonable suspicion as it relates to the particular characteristics of the accused (at para. 116):
The past criminal conduct of an individual is relevant only if it can be linked to other factors leading the police to a reasonable suspicion that the individual is engaged in a criminal activity. Furthermore, the mere fact that a person was involved in a criminal activity sometime in the past is not a sufficient ground for "reasonable suspicion". But when such suspicion exists, the police may provide that person with an opportunity to commit an offence. Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit.
[548] In regard to the latter form of entrapment, the question is whether the police conduct would have induced the average person in the position of the accused, with both strengths and weaknesses, to commit the crime (at para. 120). However, where the person induced to commit a crime has a particular vulnerability that was exploited by state agents, the inquiry becomes more subjective, looking at whether “the [police] conduct was likely to induce criminal conduct in those people who share the characteristic which appears to have been exploited by the police” (at para. 122). Justice Lamer elaborated further (at para. 126):
In certain cases the police conduct will be offensive because it exploits human characteristics that as a society we feel should be respected. As I noted earlier, if the law enforcement officer or agent appeals to a person's instincts of compassion, sympathy and friendship and uses these qualities of a person to effect the commission of a crime, we may say this is not permissible conduct because it violates individual privacy and the dignity of interpersonal relationships, and condemns behaviour that we want to encourage. (Such appeals may generally indicate that more than a mere opportunity is being provided, although it must be recalled that the police or agents will in the detection of certain crimes have to infiltrate criminal organizations, and thus gain the confidence of the people involved.) Along the same lines, if the police appear to exploit a particular vulnerability of an individual, such as by encouraging one who suffers from a mental handicap to commit a crime, this too may strike us as patently offensive because such a person is in need of protection, and not abuse. Similarly, the inducement of those attempting to recover from drug or alcohol addiction into committing offences relating to those substances may not be proper since the result will be to retard, as opposed to advance, the interest of society in reducing the personal and social costs of drug and alcohol abuse.
[549] Lastly, and in respect of this point, Lamer J. did not foreclose other models of entrapment apart from the hypothetical average person model. He observed that even where it cannot be said that the average person would likely have been induced to commit the crime, other factors might support a finding of entrapment (at para. 124):
I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. … Each situation will have to be considered on its own merits, and with a view to determining whether the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacture of criminal conduct. [Emphasis in original.]
[550] Because the guilt or innocence of the applicant is no longer in issue, it is the applicant who bears the onus of establishing on a balance of probabilities that the police conduct amounts to entrapment. The accused has done nothing that entitles him or her to an acquittal; rather, a finding of entrapment means the state has engaged in conduct that disentitles it to a conviction (para. 152).
[551] The defence of entrapment will only be met in the “clearest of cases” (Mack at para. 152). I note that Lamer J. explicitly distanced himself from the standard of “shocking and outrageous” articulated in the Court’s earlier judgment on entrapment, Amato v. The Queen, [1982] 2 S.C.R. 418. He reasoned that once entrapment is found, “a judicial condonation of the prosecution would by definition offend the community.” (at para. 153). If entrapment has been proven, the accused has already shown that the administration of justice has been brought into disrepute by the actions of the state.
[552] On the other hand, entrapment is not “a vague licence to stay proceedings whenever police conduct offends a particular judge’s sensitivities or his or her perceptions of how the police should go about doing their business”: R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193 (Ont. C.A.) at para. 31. Particularly in regard to crimes that are resistant to traditional police investigation methods, state authorities must be given some leeway in their practices in order to “solve crimes and bring perpetrators to justice”: R. v. Kang-Brown, 2008 SCC 18 at para. 52.
[553] Overall it must be remembered that the court is mandated to examine all of the relevant circumstances in their proper context. Employing a holistic contextual approach permits the court to properly balance all of the interests at stake, including the need to preserve the ability of the police to employ effective investigation techniques in the battle against terrorism in Canada; the need to protect the constitutional rights and freedoms of persons investigated for criminal acts; and the need to place proper limits on the actions of state authorities to preserve the integrity of the justice system.
[554] Turning to the Court’s conclusion on the facts in Mack, Lamer J. faulted the trial judge for his focus on the motivation of the accused rather than the conduct of the police. Regardless of why Mr. Mack agreed to engage in the illegal transaction, an objective evaluation of the police conduct warranted a finding of entrapment. As Lamer J. said (at para. 155):
… I am of the view that a stay of proceedings should be entered in this case. While the trial judge had the advantage of hearing the testimony of the appellant, and normally findings on entrapment cases should not be disturbed because of this, I am concerned that in this case too much emphasis was placed on the appellant's state of mind. Earlier in my summary of the decisions below I cited a passage from the trial judge's reasons wherein he stated that the fundamental issue was the appellant's state of mind and his predisposition to crime. This, perhaps, explains why in his conclusion the trial judge stated the appellant was not entrapped because he acted out of a desire to profit from the transaction. If the trial judge had been permitted only to evaluate the conduct of the police objectively, I think he might well have, and in any event, ought to have come to the conclusion the police conduct amounted to entrapment.
[555] In Mack, the issue was inducement. The nature of the crime and the difficulty the police had investigating drug trafficking favoured the Crown’s position; however, a variety of other factors favoured a finding of entrapment. These were summarized at para. 158:
The police do not appear, however, to have been interrupting an ongoing criminal enterprise, and the offence was clearly brought about by their conduct and would not have occurred absent their involvement. The police do not appear to have exploited a narcotics addiction of the appellant since he testified that he had already given up his use of narcotics. Therefore, he was not, at the time, trying to recover from an addiction. Nonetheless, he also testified that he was no longer involved in drugs and, if this is true, it suggests that the police were indeed trying to make the appellant take up his former life style. The persistence of the police requests, as a result of the equally persistent refusals by the appellant, supports the appellant's version of events on this point. The length of time, approximately six months, and the repetition of requests it took before the appellant agreed to commit the offence also demonstrate that the police had to go further than merely providing the appellant with the opportunity once it became evident that he was unwilling to join the alleged drug syndicate.
[556] The most significant and determining factor were the veiled threats made by Momotiuk because it demonstrated how far the police had to go in order to secure Mr. Mack’s involvement in the offence. Lamer J. reasoned as follows (at para. 159):
Perhaps the most important and determinative factor in my opinion is the appellant's testimony that the informer acted in a threatening manner when they went for a walk in the woods, and the further testimony that he was told to get his act together after he did not provide the supply of drugs he was asked for. I believe this conduct was unacceptable. If the police must go this far, they have gone beyond providing the appellant with an opportunity. I do not, therefore, place much significance on the fact that the appellant eventually committed the offence when shown the money. Obviously the appellant knew much earlier that he could make a profit by getting involved in the drug enterprise and he still refused. I have come to the conclusion that the average person in the position of the appellant might also have committed the offence, if only to finally satisfy this threatening informer and end all further contact. As a result I would, on the evidence, have to find that the police conduct in this case was unacceptable. Thus, the doctrine of entrapment applies to preclude the prosecution of the appellant. In my opinion, the appellant has met the burden of proof and the trial judge should have entered a stay of proceedings for abuse of process.
[557] 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).
[558] I have already outlined how past criminal conduct may be relevant to determining whether the police had a reasonable suspicion that the target was engaged in criminal activity. In Mack, Lamer J. went further and required a temporal connection between the conduct giving rise to a reasonable suspicion and the opportunity presented (at para. 117):
There should also be a sufficient temporal connection. If the reasonable suspicions of the police arise by virtue of the individual's conduct, then this conduct must not be too remote in time. I would note, however, that the reasonable suspicions of the police could be based on many factors and that it is not necessary for one of these factors to be a prior conviction. If the police have obtained information leading to a reasonable suspicion that a person is engaged in criminal activity, it will be enough of a basis for them to provide that person with the opportunity to commit an offence‑‑the presence of a prior criminal record is not a prerequisite to the formation of reasonable suspicion. I do not think the requirement that the police act on reasonable suspicion is unduly onerous; from a common sense viewpoint it is likely that the police would not waste valuable resources attempting to attract unknown individuals into the commission of offences. It can perhaps be safely assumed, therefore, that the police will act on such grounds.
[559] Although the definition of reasonable suspicion that was articulated by the Supreme Court of Canada in Kang-Brown arose in a different context, the Court’s comments apply with equal force to entrapment (at para. 75):
[75] The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:
[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.
. . .
What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]
…
[560] In R. v. Williams, 2010 ONSC 1698, C. Hill J. summarized judicial articulations of the reasonable suspicion standard (at para. 44(3)):
The reasonable suspicion standard has been described as not “unduly onerous” (R. v. Mack, at 554) and “necessarily …low”: R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R v. A.M. (2008), 230 C.C.C. (3d) 377 (S.C.C.) at para. 60, 82. Because reasonable suspicion “is a less demanding standard than reasonable grounds” (R. v. Bennett (1996), 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctly observed “that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds”: T. Quigley, “Brief Investigative Detentions: A Critique of R. v. Simpson” (2004) 41 Alta. L. Rev. 935, at para. 20. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out the possibility of innocent conduct or “other reasonable possibilities”: United States v. Gould, 364 F. 3d 578, 593 (5th Cir. 2004).
[561] In R. v. Chehil, 2013 SCC 49, the accused claimed his rights under s. 8 of the Charter were violated when the police deployed a sniffer dog in the baggage destined for a flight. His argument was based on the lack of reasonable suspicion. Karakatsanis J. opined that the requirement for objective facts in support of reasonable suspicion permits rigorous scrutiny by the court (at paras. 45-46):
[45] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. …
[46] Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on “factual elements which can be adduced in evidence and permit an independent judicial assessment”: P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 125. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience.
[562] At para. 47, she addressed the impact of an officer’s training and experience on the court’s evaluation of reasonable suspicion:
An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field: see Payette, at para. 25. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer’s experience and training supports the link the Crown asks the court to draw, the more compelling that link will be.
[563] Where the actions of state authorities are based upon information received from unknown or known informants, the Crown must establish the reliability of the information acted upon to meet the objective underpinning for reasonable suspicion. While this may not be an onerous standard, reliability of the information must be affirmatively proven. This issue was addressed in Cahill (at paras. 35-36):
35 I agree that where the reasonable suspicion is based on information provided to the authorities, the reliability of the informant will be a relevant consideration for the court considering the doctrine of entrapment. But the threshold established by such consideration will necessarily be low. Much of what is good police work is based on hearsay information received from a variety of sources under a wide range of circumstances. What is a reliable source on one occasion, or under one set of circumstances, may not be considered so on another day or under different conditions. An experienced investigator develops an intuitive sense which is invaluable when it comes to assessing the worth of such information. It would, in my view, be wrong for the court to develop rigid standards against which the reliability of such information must be measured when testing the reasonableness of the suspicion which led to a decision on the part of the authorities to offer a person the opportunity to offend.
36 That does not mean the requirement of reasonable suspicion in such cases can be met by the mere assertion of suspicion. Nor does it mean the reliability of the information on which that suspicion is based is irrelevant to the inquiry. A case in which the authorities could offer no satisfactory basis for their suspicion would obviously not meet the test.
[564] In any event, a conclusory statement that a tip is regarded as reliable is not sufficient to establish a reasonable suspicion where the underlying facts supporting this conclusion are not in evidence: R. v. Seymour, 2015 MBQB 141; and R. v. Lal (1998), 130 C.C.C. (3d) 413 (B.C.C.A.), leave to appeal denied, [1999] S.C.C.A. No. 28. Where the police act on the basis of a tip from an unknown source, there must be evidence that the tip is compelling, credible, corroborated and sufficiently recent to support a reasonable suspicion: R. v. Ayangma, 2015 PESC 19.
[565] The failure to prove that the state authorities acted on a reasonable suspicion will not establish entrapment unless it is also shown that the police provided the accused with an opportunity to commit the crime contiguous with the lack of reasonable suspicion. Where the police interact with the accused short of providing him with an opportunity to commit a crime, a reasonable suspicion that properly supports subsequent police action can be acquired during this initial interaction. However, it is critical that at the time the opportunity is presented to an accused there exists a reasonable suspicion that he is already engaged or involved in criminal activity: R. v. Benedetti, 1997 ABCA 169 at para. 11.
[566] There are few entrapment cases that address the meaning of an “opportunity” to commit a crime and most of these arise in rather straightforward drug investigations. The facts in the case at hand are far more complicated and require a nuanced consideration of when the opportunity was presented to the defendants.
[567] In R. v. Imoro, 2010 ONCA 122, aff’d 2010 SCC 50, a stay of proceedings imposed by the trial judge based on a finding of entrapment was reversed because there was insufficient evidence to establish that an opportunity to commit the crime was offered to the accused at a time when the police lacked a reasonable suspicion that he was engaged in criminal activity. In that case the officer was merely investigating a tip and in the course of doing so he acquired additional evidence to support a reasonable suspicion.
[568] R. v. Olazo, 2012 BCCA 59, involved a drug trafficking situation. In that case, the Court of Appeal distinguished steps taken by the police that constituted part of their investigation into the accused’s criminal activity from the offer of an opportunity to commit the crime. Steps taken to investigate a tip are not the same as providing an opportunity to commit the crime: at para. 19. The Court of Appeal endorsed the approach taken by Sharpe J. (as he then was) in R. v. Townsend, [1997] O.J. No. 6516 (C.J.), which advocated a careful analysis of each stage of the police operation to determine when it “shifted” to the presentation of an opportunity (at para. 20). In Olazo, the initial telephone calls by the police to the accused were characterized as setting up the drug deal rather than presenting an opportunity.
[569] The reasoning in Olazo was recently followed in R. v. Le, 2016 BCCA 155, where Bennett J.A. rejected the defence argument that a call from a police officer asking whether the person who answered the telephone was prepared to sell him cocaine amounted to the presentation of an opportunity to commit the crime, rather than part of the investigation. As described by Bennett J.A. (at paras. 92-95):
[92] Second, even if there was not reasonable suspicion, this minimal conversation can only amount to part of the investigation of the tip to see if the target responded. It was not an opportunity to commit a crime. Mr. Le’s own expression of willingness to transact during the phone call raised a reasonable suspicion: see Olazo; Imoro. Afterwards, a deal was struck in person. In my view, asking someone if he can “hook a person up with drugs” is not, in and of itself, entrapment.
[93] Defence counsel argued that there is a meaningful distinction between veiled statements asking if the other party is a drug dealer and more specific requests for types, quantities, or values of drugs. It was argued that the former statement is an investigatory step while the latter is an offer to commit an offence. Parsing the language of undercover drugs calls in dial-a-dope investigations in this way takes an unnecessarily narrow approach. It ignores the surrounding circumstances, but more importantly, it strays far from the core principle underlying Mack.
[94] In Mack, the Court stated the mischief of random virtue-testing is “the serious unnecessary risk of attracting innocent and otherwise law‑abiding individuals into the commission of a criminal offence” (at 957). “Ultimately, … there are inherent limits on the power of the state to manipulate people and events for the purpose of … obtaining convictions” (emphasis added) (at 941).
[95] Objectively speaking, innocent and otherwise law-abiding individuals would not be “manipulated” or tempted to enter the dangerous and illicit drug trade if asked by a stranger over the phone to sell him drugs. It defies common sense to suggest that asking whether an individual is willing to sell specific types, quantities, or values of illicit drugs runs the “serious unnecessary risk” that an otherwise innocent person would then go out, procure the drugs, meet with and sell them to a stranger.
[570] Even where police have a reasonable suspicion, they may not induce the commission of an offence. In Mack, Lamer J. articulated a non-exhaustive list of useful factors to consider in determining whether police employed means that went further than providing an opportunity (at para. 133):
– the type of crime being investigated and the availability of other techniques for the police detection of its commission;
– whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
– the persistence and number of attempts made by the police before the accused agreed to committing the offence;
– the type of inducement used by the police including: deceit, fraud, trickery or reward;
– the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
– whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
– whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
– the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
– the existence of any threats, implied or express, made to the accused by the police or their agents;
– whether the police conduct is directed at undermining other constitutional values.
[571] The Crown relies, in particular, on three entrapment authorities in which the accused were convicted of terrorism offences. These are Hersi; N.Y.; and Abdelhaleem. While the circumstances in each of these cases are quite different from those in the case at hand, they nevertheless provide some guidance regarding the application of entrapment principles to the specific context of terrorism offences.
[572] In Hersi, the accused was found guilty of two terrorism offences: attempting to participate in the activities of the Somali-based terrorist group Al-Shabaab; and, counselling another person (an undercover officer) to do the same. The police became suspicious of Mr. Hersi’s involvement in terrorist criminal activity when he left a USB drive at a drycleaners that contained several documents related to terrorist acts, including the Anarchist Cookbook. An undercover police officer obtained a job working with Mr. Hersi, who was a security guard at a Toronto office building, and befriended him. During their many social and work encounters Mr. Hersi outlined his plan to travel to Somalia in order to join Al-Shabaab. Mr. Hersi also encouraged the officer to join Al-Shabaab, and counselled him on how to pursue that goal while avoiding police detection.
[573] Mr. Hersi argued the police lacked a reasonable suspicion when they provided him with an opportunity to commit the offences. Justice Baltman held that encouraging someone to reveal their settled and already formed intention to commit a crime is not the same as giving them an opportunity to commit a crime (at paras. 18-21):
[18] It is undisputed that in this case the UC repeatedly steered the conversation toward the topics of Somalia, Al-Shabaab and terrorism. On several occasions he specifically queried Hersi regarding his intentions in travelling to Egypt and Somalia. He asked Hersi to give him electronic copies of Inspire magazine and other writings. And on December 10 he told Hersi that he was planning on joining Al-Shabaab.
[19] However, there is a big difference between stimulating someone to incriminate himself and offering him an opportunity to commit an offence. I view what occurred here as the police simply "opening up a dialogue", akin to what occurred in Bayat (at para. 19), or initiating "exploratory" conversations that needed to be "developed", as distinguished by Trotter J. in R. v. Williams 2014 ONSC 2370, at para. 27. It is worth noting that Hersi needed little if any prodding on any of these subjects; he proved to be an enthusiastic, opinionated and verbose participant. If the intercepts are any indication, in this relationship he did most of the talking; each time the UC broached a relevant topic, Hersi jumped in with both feet. That he now finds them stuck in his mouth is his own doing.
[20] Significantly, what the UC did not do in this case was present Hersi with an opportunity to participate in terrorism. He did not make travel arrangements for him, or suggest Hersi accompany him to Somalia; nor did he facilitate a connection to Al-Shabaab or anyone within that organization.
[21] … While I agree Hersi's intentions are pivotal to the first count (attempt to participate), the Crown's case to the jury was that by the time Hersi met the UC he had already formed the intention to join Al-Shabaab. That position was well supported, in my view, by the evidence. It follows that the UC did not create that intention; he merely gave Hersi an opportunity to describe it. Engaging someone who has already decided to commit an offence into revealing his intentions is not entrapment.
[574] In regard to the offence of counselling, Baltman J. concluded that there was ample evidence to support a reasonable suspicion at the time the opportunity was presented by the police. The opportunity appears to have occurred well into the undercover operation when the officer asked Mr. Hersi’s advice about joining the terrorist organization. The facts underlying this conclusion are described at paras. 32-33 of Hersi:
[32] Nothing about the investigation in this case, including its length, should shock the conscience of the community or violate its sense of fair play. On the contrary; after being alerted to a USB key belonging to Hersi that contained some troubling content, the police promptly installed an undercover officer who, over the following weeks, received admissions from Hersi of a steadily incrementing nature. By November 19, the cumulative effect of those statements created in police reasonable grounds to suspect Hersi was involved in terrorist activity. More serious admissions followed, such that by December 10 they had reasonable grounds to believe Hersi had committed a crime.
[33] To have expected anything else in these circumstances is completely unrealistic. Undercover operators can only be effective if they have the trust of those they are investigating. Gaining trust takes time. That time was well spent in this case; as Hersi acknowledged at trial, as time went on he came increasingly to trust and confide in the UC. That was reflected in the progressively incriminating nature of the admissions he made, as demonstrated in the chart above (para. 12). By November 19 - slightly over one month from the UC's first meeting with Hersi - police had accumulated enough evidence to establish that their initial suspicions were, in fact, well grounded.
[Emphasis in original.]
[575] Turning to N.Y., the accused was convicted of knowingly participating in or contributing to the activities of a terrorist group contrary to s. 83.18 of the Code. The police interest in N.Y., along with three other young persons and fourteen adults, stemmed from an investigation that uncovered a plot to commit terrorist bombings in Toronto. The charges against N.Y. arose from his participation in two terrorist training camps held in rural Ontario – the first at Washago, and the second at Rockwood – and certain other activities related to the terrorist plans being fostered at those camps. In particular, the trial judge found that N.Y. participated in and aided the terrorist group by attending the Rockwood training camp, shoplifting camping supplies and walkie-talkies for the group, and removing a law enforcement surveillance camera found in the apartment complex of one of the leaders of the terrorist group. N.Y.’s defence was that he was “a young, immature, easily-influenced, recent convert to Islam, who came under the persuasive spell of Shaikh and one of the lead conspirators, Fahim Ahmad” (at para. 5). Shaikh was a police agent who posed as a weapons trainer during the Washago camp. Upon his conviction, N.Y. argued he was induced into committing the offence by the actions of Shaikh. The trial judge dismissed the defence application for a stay of proceedings. The Court of Appeal confirmed this judgment, concluding that it was the other co-conspirators who had offered N.Y. the opportunity, and that even if Shaikh had presented the opportunity, there was no inducement (para. 127).
[576] Writing for the Court, Blair J.A. referred to the series of factors identified in Mack as helpful when assessing whether there has been inducement, including: the necessity to investigate the criminal activity of a terrorist group in this manner; Shaikh’s presence at the camp had little impact on how the camp unfolded; Shaikh did not attempt to have N.Y. commit an offence; the camp was planned before Shaikh became involved; Shaikh did not participate in any indoctrination of N.Y. or forge any relationship between him and the other co-conspirators; and the events giving rise to the charge had nothing to do with the camp (at para. 132).
[577] The defence argued that Shaikh committed illegal acts during the camp; specifically, that he brought a 9 mm handgun to the camp, acquired ammunition for it, and trained recruits to use it. Justice Blair concluded that even if illegal acts were committed, a stay of proceedings was not warranted for several reasons: (1) the offence relating to ammunition was only minor; (2) if Shaikh inadvertently committed more serious terrorism offences, the police were faced with an imminent, dangerous and potentially lethal threat to the security of the public and had reason to believe that a terrorist plot to target military and government buildings was brewing; (3) Shaikh was invited by the terrorists to participate in the camp and was instructed not to commit any crimes; and (4) Shaikh had to participate in these acts to maintain his cover. The urgency of the situation facing the police figured prominently in his reasoning (at para. 153).
[578] In Abdelhaleem, the accused was convicted of knowingly participating in or contributing to activities of a terrorist group namely, Zakaria Amara and others, contrary to s. 83.18(1) of the Code and planning to build and explode a truck bomb for a terrorist purpose contrary to s. 83.2. The accused pleaded guilty and argued that he had been entrapped by a friend who had first worked for CSIS and then became a police agent. The impugned conduct involved the police agent agreeing to provide chemicals required for the bomb and a location to construct it. Dawson J. concluded that the police agent did not induce the offence. He accepted the evidence of the police agent that he did not pressure the accused and the only deception was that he would provide the chemicals to make the explosive. The police were unaware of any vulnerability the accused possessed. Further, before the police agent agreed to secure chemicals, the accused had revealed the details surrounding the bomb plot, had rented a house in which to construct the device, and had an alternate plan in place for acquiring the chemicals. The police also knew that the accused had firearms and that his preferred location for bomb construction was in a residential neighbourhood where public safety was a real concern.
[579] There were significant pre-planning efforts by the accused before any offer was made by the police agent, which is clearly distinguishable from the case at hand. Significantly, the police played no part in the instigation of the plan to construct the bombs.
[580] 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.
[581] While the same conduct may justify a finding of entrapment and an abuse of process, the test for imposing a stay of proceedings based on an abuse of process is quite distinct. It is an exceptional remedy to be employed only in rare cases and as a last resort. The court is asked to apply its “residual” power to impose a stay where the impugned conduct does not touch on trial fairness or other procedural rights under the Charter, but is otherwise so egregious that it “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”: R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 73, per L’Heureux-Dubé.
[582] In Regan at paras. 55-57, LeBel J. summarized the Court’s residual power to order a stay of proceedings for an abuse of process as follows:
55 As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).
56 Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.
57 Finally, however, this Court in Tobiass instructed that there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage where a traditional balancing of interests is done: “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”. In these cases, “an egregious act of misconduct could [never] be overtaken by some passing public concern [although] . . . a compelling societal interest in having a full hearing could tip the scales in favour of proceeding” (Tobiass, at para. 92).
[583] In R. v. Taillefer; R. v. Duguay, 2003 SCC 70, the Court reviewed the criteria for a stay of proceedings based on an abuse of process and confirmed that there are two essential criteria: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, and; (2) no other remedies are reasonably capable of removing that prejudice, which recognizes the prospective rather than retroactive nature of the remedy.
[584] More recently, Moldaver J., writing for the majority in Babos, summarized the three prerequisites for a stay for an abuse of process (at para. 32):
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).
[585] Justice Moldaver further explained that where the residual category is invoked, the question at the first stage is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency, and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. He continued (at para. 35):
… To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
[586] As for the second question, Moldaver J. elaborated that since the residual category involves prejudice to the integrity of the justice system, remedies must necessarily be directed to that harm. The goal is not to provide redress to an accused for a wrong that has been done to him or her in the past; rather, the focus is on whether an alternate remedy short of a stay will adequately disassociate the justice system from the impugned state conduct going forward (at para. 39).
[587] Where the state commits illegal acts in the course of a criminal investigation leading to a conviction such misconduct can lead to a stay of proceedings based upon the Court’s residual power to preserve the integrity of the justice system by refusing to condone an abuse of process. In Campbell, Binnie J., writing for the Court, held that the rule of law applied to all persons, including the police when acting in the course of their duties. The impact of illegal acts by the police on an application for a stay of proceedings depends on the facts of each case; not every unlawful act will constitute an abuse of process worthy of a stay of proceedings. As Binnie J. explained in Campbell at para. 24:
The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. The problem confronting the police was well described by the Alberta Court of Appeal in R. v. Bond (1993), 135 A.R. 329 (leave to appeal refused, [1993] 3 S.C.R. v), at p. 333:
Illegal conduct by the police during an investigation, while wholly relevant to the issue of abuse of the court’s processes, is not per se fatal to prosecutions which may follow: Mack; supra at 558. Frequently it will be, but situational police illegality happens. Police involve themselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotelroom transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug-traffickers.
[588] In response to Campbell, Parliament enacted the law enforcement justification provisions set out in ss. 25.1-25.4 of the Criminal Code. These provisions provide a limited justification at law for acts or omissions that would otherwise constitute offences when committed by specially designated law enforcement officers (and those acting under their direction) while investigating an offence under federal law, enforcing a federal law, or investigating criminal activity. The unlawful acts are subject to a legal requirement of reasonableness and proportionality and depend upon the nature of the act or omission, the nature of the investigation, and the reasonable availability of other means for carrying out the officer’s duties. Certain types of conduct, such as intentionally causing bodily harm, and willfully attempting to obstruct, pervert or defeat the course of justice, are expressly excluded from the justification provisions. The process is intended to curb illegal acts that go further than is necessary for the police to carry out their public duties in the particular circumstances of the case.
[589] Where the police do not seek permission under s. 25.1 of the Code with respect to illegal acts, their conduct remains subject to the rule of law. However, the standards expected of the police must vary with the circumstances of the offence being investigated and the availability of other investigative techniques. The investigation of certain types of offences requires the police to engage in undercover work and take on the persona of those persons being investigated for criminal activity. For example, in the context of an investigation into criminal organizations, the courts have recognized that the police or police agents must act like gangsters in order to build a rapport with members of the organization and gain their trust. Where a police agent or informer commits criminal acts in the course of this type of undercover investigation, the rule of law applies but the court treats the misconduct in a somewhat different manner than if the police are directly engaged in criminal acts.
[590] In R. v. Lising, 2010 BCCA 390, the evidence that led to the conviction of the accused for possession of methamphetamine for the purpose of trafficking was obtained through the work of a police agent (Mr. Plante, a known criminal and “friend” of the Hells Angels) who infiltrated the gang on behalf of the police. Mr. Plante committed numerous criminal offences during the period of infiltration, and the trial judge found that he was exempt from liability pursuant to ss. 3 and 4 of the Controlled Drugs and Substances Act Regulations (CDSA Regulation) and s. 25.1 of the Code. On appeal, the accused argued the trial judge erred in concluding the actions of the police agent did not constitute an abuse of process. The Crown conceded that the trial judge erred in regard to his findings under s. 25.1 because the police did not follow the proper procedure. However, on appeal his conclusion in regard to the CDSA Regulation was upheld.
[591] In regard to the claim of abuse of process, Bennett J.A., writing for the Court, concluded that Mr. Plante’s criminal activities went beyond the exemption and included assaults and weapons offences. Although the police must sometimes resort to criminal acts to hide their identity and fit in when investigating criminal organizations, she held that it is when these acts are neither exempted nor justified that an abuse of process may arise from their conduct (at para. 79). Stressing that a finding of an abuse of process based on illegal police conduct depends on the facts of each case, Bennett J.A. said (at paras. 86-7):
[86] … one of the fundamental values of our democratic system is that the ends do not justify the means. This observation is central to any discussion of whether the conduct of the police (or their agents) amounts to an abuse of process.
[87] The police cannot do whatever they like under the guise of investigating serious crime, or even organized crime that is frequently beyond detection. In order to maintain a free, democratic and civilized society, there must be some balance between the “concepts of fairness and justice” and the need to protect the public from crime.
[592] Ultimately, Bennett J.A. concluded the conduct of the police and their agent did not warrant a stay based on abuse of process. Her reasoning involved a careful examination of the criminal conduct, which she accepted was not serious for the most part, the control exercised over the agent, and the difficulty the police have experienced investigating criminal activity by the Hells Angels. The pre-existing relationship between Mr. Plante and the Hells Angels was also a factor. As Bennett J.A. wrote (at para. 101):
This is not to suggest that the Hells Angels have any lesser claim to the benefit of the rule of law than the rest of the community. The police did not break the law in order to gather evidence against the Hells Angels. Plante was allowed to operate in the community, exactly as he had before, committing crimes on behalf of the Hells Angels. Nothing had changed in terms of Plante’s conduct vis-à-vis the motorcycle club. What had changed was that Plante was now reporting all of his activities to the police, which served to implicate members and associates of the Hells Angels in many criminal offences. This was not an abuse of police discretion.
[593] In the case at hand, the RCMP utilized a version of its “Mr. Big” investigative technique to gather evidence of criminal activity. Mr. Big investigations involve elaborate schemes designed to convince a target that he has become involved with a criminal organization and that once they have his trust and loyalty, great rewards will be forthcoming. The police often create an atmosphere of violence as part of the ruse to stress the importance of loyalty to the organization. The entire scheme is designed to secure a confession.
[594] In the case at hand the police were not attempting to secure a confession to a past crime; however, the undercover investigation involving Mr. Nuttall and Ms. Korody was very similar to a traditional Mr. Big operation. The same tactics were used to foster a belief that Officer A was a high-ranking member of a well-financed and well-resourced sophisticated terrorist organization as a traditional Mr. Big operation uses to convince a target that he is being courted by a large criminal organization. The Mr. Big interview formed part of the undercover operation when Officer D met with the defendants prior to their departure for Victoria on June 30th. As a consequence, it is instructive to review the most recent developments in the law regarding these types of investigations because it is relevant to both the entrapment argument in this case and to the abuse of process claim.
[595] The leading authority on the use of Mr. Big operations as a means of investigating crime is Hart. In Hart, the Supreme Court of Canada recognized that there are inherent dangers associated with Mr. Big investigations that may affect trial fairness and give rise to an abuse of process warranting a stay of proceedings or the exclusion of any evidence gathered during the investigation. These dangers relate to the voluntariness of the accused’s confession and its prejudicial impact on the trial (at paras. 68 and 73).
[596] In addition, Hart recognized that there is a considerable risk in Mr. Big investigations that the police will engage in wrongful conduct to secure a confession. In this regard, Moldaver J. said (at para. 78):
Finally, Mr. Big operations create a risk that the police will resort to unacceptable tactics in their pursuit of a confession. As mentioned, in conducting these operations, undercover officers often cultivate an aura of violence in order to stress the importance of trust and loyalty within the organization. This can involve — as it did in this case — threats or acts of violence perpetrated in the presence of the accused. In these circumstances, it is easy to see a risk that the police will go too far, resorting to tactics which may impact on the reliability of a confession, or in some instances amount to an abuse of process.
[597] Of relevance to this case, the Court created a “more robust” abuse of process doctrine to deal with police misconduct during such investigations. Recognizing that there are limits to the power of the state to "manipulate people and events for the purpose of ... obtaining convictions" (Mack at para. 79), Moldaver J. stated (at paras. 114-118):
[114] I acknowledge that, thus far, the doctrine [abuse of process] has provided little protection in the context of Mr. Big operations. This may be due in part to this Court’s decision in R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, where Binnie J., writing for the majority, described the Mr. Big technique as “skillful police work” (para. 21). But the solution, in my view, is to reinvigorate the doctrine in this context, not to search for an alternative framework to guard against the very same problem. The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them.
[115] It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, at para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.
[116] Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253).
[117] Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.
[118] While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context.
[598] In concurring reasons, Karakatsanis J. described Mr. Big operations as creating an artificial reality that is “purposively manipulative and can compromise the autonomy and human dignity of the suspect” (at para. 165). She elaborated on this view of Mr. Big investigations (at para. 172):
Mr. Big operations have procured confessions when traditional investigative techniques have failed. Indeed, that is their sole purpose. These operations, often costly and complex, create elaborate false realities for their targets in which they are valued and rewarded. Threats and inducements are tailored to exploit suspects’ vulnerabilities, and confessing becomes necessary for their new lives to continue. The very structure of Mr. Big operations creates circumstances that (1) compromise the suspects’ autonomy, (2) undermine the reliability of confessions, and (3) raise concerns about abusive state conduct. In addition, Mr. Big operations create prejudicial evidence of criminal propensity which has the potential to compromise accused persons’ ability to make full answer and defence, undermining the fairness of the trial.
[599] Further, Karakatsanis J. adapted the factors articulated in Mack regarding police misconduct in entrapment cases to Mr. Big-style investigations (at paras. 213-214). Lastly, she held that the high standard of proof for abuse of process should not necessarily be applied to police misconduct in Mr. Big operations (at paras. 209-212):
[209] The state must conduct its law enforcement operations in a manner that is consonant with the community’s underlying sense of fair play and decency. It cannot manipulate suspects’ lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants. Such an approach does violence to the dignity of suspects and is incompatible with the proper administration of justice.
[210] I agree with my colleague Moldaver J. that the abuse of process doctrine recognized under s. 7 remains independently available to provide a remedy for state misconduct in the Mr. Big context. However, the high threshold for its application means that conduct may tend to undermine the integrity of the administration of justice, yet fail to warrant a remedy under this doctrine. The need to restrain state misconduct is one of the rationales for the principle against self-incrimination (as well as the confessions rule and the right to silence). Therefore, police conduct in Mr. Big operations must be considered, even when it does not rise to the level of abuse of process.
[211] State conduct throughout a Mr. Big operation must be scrutinized to determine whether the police unfairly, unnecessarily or disproportionately manipulated the suspect. This inquiry will also consider other objectionable police tactics such as involving the suspect in dangerous conduct or exposing him to physical or psychological harm.
[212] A certain degree of trickery is, of course, inherent to many effective and appropriate police tactics. But the more disreputable the police tactics become, and the less they comport with the responsibility to conduct a fair prosecution which respects the dignity of the suspect, the more likely it is that s. 7 has been violated.
[Emphasis added.]
[600] In the companion decision of R. v. Mack, 2014 SCC 58, Moldaver J. emphasized the importance in a Mr. Big operation of considering the impact of police conduct on the accused in light of the particular circumstances, including the accused’s personality. As Moldaver J. said at para. 52:
As explained in Hart, the reliability of a Mr. Big confession is affected by the circumstances in which the confession was made and by the details contained in the confession itself. Thus, the trial judge should alert the jury to “the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused” — all of which play a role in assessing the confession’s reliability (see Hart, at para. 102). [Emphasis added.]
[601] The British Columbia Court of Appeal recently applied the Hart principles in Randle, where the police used a Mr. Big operation to obtain a confession from the accused that he killed a man in self-defence and then burned the body. The operation included a scenario in which the undercover officers purported to kill a police informant while the accused waited nearby. The accused argued on appeal that the trial judge erred in concluding that this type of police conduct did not constitute an abuse of process. The appeal was dismissed on the basis that the simulated violence, directed at third parties rather than the accused, would not render the confession unreliable and would not shock the community because it was designed to elicit disclosure of violent behaviour and the accused was told that members of their gang would not be treated in this manner. At most, he would be expelled from the gang (at paras. 89-90).
[602] The reasoning in Randle supports the Crown’s position that the simulation of violence is viewed as an acceptable way to make the target feel comfortable about disclosing his violent acts and is not seen as beyond acceptable police conduct. However, simulating violence to induce a person to commit an offence, even if directed at a third party, is far more egregious because it engages the most serious factors identified in Mack, and risks undermining the integrity of the justice system if it is effectively condoned by the court.
[603] Interference with Charter protected values is clearly relevant to both entrapment and abuse of process. It was expressly recognized in Mack as a factor to consider when assessing whether police have induced the commission of an offence (at para. 133). Further, freedom of religion is guaranteed by s. 2(a) of the Charter and there is no dispute that a violation of this provision by the police may amount to an abuse of process.
[604] Section 2(a) guarantees freedom of conscience and religion and is central to the Charter’s overall purpose of protecting and preserving individual dignity and autonomy: Welsh at para. 52. The underlying objectives of this freedom were described by the Supreme Court of Canada in Big M Drug Mart Ltd. and in Edwards Books and Art Ltd. Fundamentally, s. 2(a) seeks to ensure that everyone has the freedom “to hold and to manifest whatever beliefs and opinions his or her conscience dictates” (Big M Drug Mart Ltd. at para. 123) and to ensure that “society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and … a higher or different order of being” (Edwards Books and Art Ltd. at para. 97).
[605] To make out a claim under s. 2(a) of the Charter, the applicant must establish that they have sincerely held beliefs or practices that have a nexus to religion and that the impugned conduct of the state interferes with the applicant’s ability to act in accordance with his religious beliefs in a manner that is more than trivial or insubstantial: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 32.
[606] The defence has cited an authority that addresses conduct by undercover police officers that could be characterized as interfering with religious freedoms. Although the circumstances in Welsh are quite different from the case at hand, the Ontario Court of Appeal discussed the limitations on freedom of religion and the context in which the actions of the police must be examined.
[607] In Welsh, the police investigated a murder by using an undercover officer in the role of an Obeahman or spiritual advisor, a religious and magical figure within a practice that originated in the Caribbean Islands. The officer, posing as an Obeahman, induced the accused to make incriminating statements about the murder in the belief that the officer had spiritual powers that could protect them from the deceased’s evil spirit and any attempt to prosecute them for the offence. The trial judge concluded there was no sincerely held belief in Obeah and that the accused had failed to establish a non-trivial interference with their religious freedoms. The Ontario Court of Appeal upheld these findings.
[608] There were two significant limitations on seeking a remedy under s. 2(a) articulated by the Court. First, the accused were seeking to thwart the justice system when they agreed to meet with the undercover officer, which is not a protected right under s. 2(a) (at para. 72). Second, the accused did not communicate with the undercover officer to satisfy some spiritual need or purpose. A religious purpose must motivate the communication (at para. 70).
[609] Despite its finding that there was no violation of s. 2(a) of the Charter, the Court cautioned that the police do not have carte blanche to act as they choose in this sensitive area. In this regard, Rosenberg and Sharpe JJ.A. said (at para. 73):
Finally, we wish to be clear that, contrary to the submissions of the appellants, by holding that there was no violation of s. 2(a) in this case, we do not give the police carte blanche to exploit the religious beliefs and practices of suspects to obtain statements. Each case must be decided on its own facts. This is plainly a very sensitive area where the police must proceed with the utmost caution and with the utmost respect for the fundamental value of freedom of religion. We wish to state clearly that this decision does not stand for the proposition that the police are entitled to pose as religious advisers and expect that statements obtained from religiously-motivated suspects will be admitted. In cases where suspects have sincere religious beliefs and seek counselling from a supposed religious adviser for non-corrupt religious reasons, the result could well be different.
[610] Whether or not the state infringed the rights of the defendants under s. 2(a) of the Charter, where the police use religious beliefs as an inducement to commit a crime, their conduct must be closely scrutinized and circumscribed to preserve the high value our society places on the sanctity and privacy of one’s religious beliefs and practices. There is a point at which the conduct of the police becomes intolerable because it abuses relationships and institutions that our society fosters and protects. Indeed, the RCMP’s internal policies respected these limits by categorizing the use of religion in an undercover operation as a “sensitive sector” matter governed by specific procedures and limitations.
[611] Although this is not a case where the police sought to induce a confession by the defendants, the so called “dirty tricks” doctrine establishes analogous standards based on interference with the principles of fundamental justice, which includes protected institutions and values such as religious beliefs. In Rothman, Lamer J. articulated this doctrine in the context of describing the type of police conduct that would be so egregious that it would bring the administration of justice into disrepute (at 697):
… The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect’s confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick. [Emphasis added.]
[612] The standard for measuring the impact of police trickery in cases where the accused seeks to exclude his confession at trial is that it shocks the conscience of the community: R. v. Oickle, [2000] 2 S.C.R. 3 at para. 66. When the court adapts this test to entrapment it must be careful to gauge the theoretical response of the community based on the whole of the police conduct rather than the “dirty trick” behaviour in isolation. Dirty tricks are regarded as a separate inquiry when assessing the voluntariness of a statement because the aim is to maintain the integrity of the justice system rather than to prevent false confessions: Oickle at para. 65. However, maintaining the integrity of the justice system is the underlying purpose for the doctrine of entrapment and informs all of the factors articulated in Mack equally, including any deceit or fraud perpetrated by the police.
[613] The Crown cited two authorities in which the Court considered whether trickery by undercover officers constituted entrapment. In El-Sheikh-Ali, Clarke J. concluded that an undercover officer who induced the accused to traffic in cocaine by convincing him that she wanted to live with him and have a romantic relationship offended the basic values of the community and, thus, constituted entrapment. The accused was found to have been a lonely man who was a new immigrant and separated from his family. These vulnerabilities were regarded as significant without evidence that the undercover officer was aware of them and had thus exploited them by her conduct. Justice Clarke also considered the availability of other investigative techniques (at paras. 20-21):
20 Finally, I find that P.C. Smith could have approached the accused as a customer in a gender-neutral manner, without the lure of a relationship. Such an approach would not have impaired her effectiveness as a professional undercover agent. By presenting herself as a sex object, P.C. Smith went beyond providing mere opportunity. She gave the accused a motive. I find that such tactic would have induced the average person with both strengths and weaknesses in the position of the accused to commit the offence.
21 In summary, given the availability of other techniques, such as surveillance, the character of the deception here, the "reward" dangled before the accused, the exploitation of human weakness in a vulnerable individual and the other criteria set out in Mack, I find that the defence has demonstrated on the preponderence of evidence that such conduct would bring the administration of justice into disrepute.
[614] In Frost, a claim of entrapment based upon the abuse of a friendship by undercover officers was rejected because there was insufficient evidence to establish the officers intimated a romantic relationship was possible. The trial judge said at para. 24:
It is true that the police officers did strike up a friendship with Ms Frost. But considerable leeway must be given to police with respect to the investigation of drug trafficking offences because traditional police techniques are not usually effective. The police must gain the trust and confidence of the people trafficking in drugs in order to effectively combat this type of crime. The police officers did not unduly exploit the relationship they had developed with Ms Frost. They did not have to make frequent and persistent requests in order to get her involved. As soon as she learned they were looking for cocaine, she eagerly volunteered to help them.
[615] 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.
[616] 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; however, the last conviction was in 2003, some ten years prior to the commencement of Project Souvenir. Ms. Korody had no criminal record.
[617] The M.C. complaint from October 2012 appeared to raise national security concerns due to Mr. Nuttall’s expressed views about violent jihad; however, there was no indication that he continued to espouse violent jihadist views after the last contact with M.C. in October 2012 or that he thereafter associated with people who shared jihadist beliefs. It was over four and a half months later that Officer A and Mr. Nuttall had their first encounter. I reject any argument that the fact the defendants were new converts to the Muslim faith and used the moniker “Mohammed” for their blog gave rise to a reasonable suspicion that they were involved in criminal activity. Moreover, it was not an offence at the time to voice support for jihadist beliefs or travel outside Canada to carry on jihad. Radical beliefs, without more, would not lead to a reasonable suspicion that the defendants were already engaged in criminal activities. Recognizing that there is a relatively low standard to meet, I am satisfied that by merely espousing radical religious beliefs a target does not provide the police with a reasonable suspicion that he or she is already engaged in terrorist criminal activities.
[618] Nevertheless, the police are not required to demonstrate a reasonable suspicion in order to justify investigating crime, particularly the threat of a terrorist act. Accordingly, even without any support for the CSIS tip or any overt evidence of criminal involvement, the decision to embark upon an undercover investigation cannot be faulted. As in the case of organized crime, infiltration of terrorist groups must be regarded as an essential method of investigating these offences.
[619] Despite the lack of reasonable suspicion at the commencement of the undercover operation, I am satisfied that after the first meeting with Officer A, Mr. Nuttall’s statements during this encounter and the next few meetings amply met the objective test for reasonable suspicion. Some of the relevant statements by Mr. Nuttall included an acknowledgement that he was a “mujahid” and had planned to go to Pakistan to do jihad but these plans had to be scrapped because his friend reported him to the police. Mr. Nuttall said he had a plan and needed items to carry it out such as money, a plasma cutter, a welding machine and a gun. He said there was no plan to kill women and children but according to Islam, government employees, politicians and military were fair game.
[620] As I said earlier, the expression of radical beliefs, without more, would not provide the police with a reasonable suspicion that such a person was involved in criminal activity. However, Mr. Nuttall’s statement that he already had a plan, the nature of the items he claimed to need for the plan, coupled with a belief that killing certain groups was religiously justified, provided the RCMP with a reasonable suspicion.
[621] During the first meetings with Mr. Nuttall in March 2013, Officer A referred to his group’s ability and willingness to help Mr. Nuttall with his plans through the provision of financing and logistics for his mission. None of these promises were unconditional. These offers were vague and couched in language that left the impression that Officer A wanted to provide assistance for Mr. Nuttall’s plans but there was no commitment to supplying anything specific. As the operation progressed, the offers of assistance were also contingent upon Mr. Nuttall and later, Ms. Korody, coming up with specific details that could be assessed and evaluated by Officer A’s partner. In my view, these statements by Officer A amounted to no more than steps in the investigation designed to act as a reason for continued contact with the defendants and to encourage them to reveal more about any plan they had to carry out a jihadist mission.
[622] Distinguishing investigative steps from the provision of an opportunity to commit an offence is a complex inquiry in this case because there were many promises made to the defendants that could be interpreted as setting the stage for the offer to commit an offence. For months the promises made were couched in conditional terms and possibilities. An opportunity is a situation in which something one wants to do is made possible; however, a possibility is not an opportunity, it is only something that might happen sometime in the future. Moreover, a large part of the undercover investigation involved holding out the possibility of strategic assistance as a means of perpetuating contact between Officer A and the defendants. The question is when or if any of the statements made by Officer A amounted to a true opportunity to commit a terrorism offence.
[623] Because of the difficulty the RCMP experienced getting the defendants to articulate any plan, Officer A had to repeatedly hold out the promise of assistance but never commit to anything specific. Over and over Officer A referred to his desire to help the defendants with “their plan”; however, as time went on it was apparent that Mr. Nuttall could not get down to any actual planning. He “brainstormed” a lot of grandiose ideas and his focus constantly changed from one idea to another. Sometimes he wanted to storm the Esquimalt naval base. Other times he wanted to build Qassam rockets and shoot them off over the Parliament buildings in Victoria or hijack a nuclear submarine. Mr. Nuttall talked on and on about his desire to make these grand statements but he never articulated how he would accomplish these schemes. This led the police to become quite desperate in their efforts to focus the defendants and bring the investigation to an end. Nothing seemed to work. When the police finally believed Mr. Nuttall had crafted a plan to capture a passenger train in Victoria, their expectations were dashed when a cursory internet search revealed there was no such passenger train.
[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.
[625] 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.
[626] 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.
[627] 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.
[628] 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.
[629] The investigative team concluded that the way to solve these problems was to make a firm offer to provide the defendants with C4 specifically for the pressure cooker devices and to actively encourage this idea and discourage the rocket plan and any of Mr. Nuttall’s other grandiose schemes.
[630] While the Crown argues that even this offer of C4 did not constitute the provision of an opportunity to commit an offence, I am unable to accept this submission. Officer A did not simply offer the defendants C4 without a specific context; the offer was tied to the construction and planting of the pressure cooker devices. The police held out this offer as a package deal. Officer A told the defendants that his organization was not going to finance or participate in any of the other schemes Mr. Nuttall talked about because they were unrealistic, would take too long, and were too risky. Although the details surrounding the plan to explode a pressure cooker device had to be approved by Officer A’s partner (the role played by Officer D on June 29, 2013), all of the steps taken by the police after the Kelowna scenarios were intended to bring this pressure cooker plan, using C4 as the explosive, to fruition.
[631] In my view, Officer A’s offer was not merely an inquiry into whether the defendants were willing to engage in a terrorist act or some other type of preliminary step in the investigation. Nor was the offer necessary to perpetuate contact with the defendants who were by this time desperate to be with Officer A. It was a firm and specific opportunity and not a mere possibility that was communicated to the defendants. Accordingly, I find the RCMP presented the defendants with an opportunity to commit a terrorism offence when Officer A committed unconditionally to provide the C4 for the pressure cooker devices on June 16, 2013.
[632] 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.
[633] 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.
[634] 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.
[635] The Crown submits that Mr. Nuttall’s capabilities were amply demonstrated by his articulation of the train plan while driving to Whistler; however, I found his rambling musings to be grandiose, fanciful and entirely unfocused. His thoughts went from freeing Omar Khadr to forcing the closure of Guantanamo Bay prison to capturing the US President. Mr. Nuttall later described his ideas as just “off the top of his head” and clearly they were nothing more than stream of consciousness. Mr. Nuttall’s failure to think through the specifics of a plan and commit it to writing without Officer A hovering over him was another clear indication that he lacked mental focus and motivation.
[636] The Crown also submits that Mr. Nuttall was able to put in writing a comprehensive plan to capture a passenger train in Victoria and the only problem was that the train no longer existed. It is true that the investigative team identified the non-existence of the train as a fundamental impediment to the execution of Mr. Nuttall’s plan. However, Mr. Nuttall’s verbal description of the train plan was in evidence and the Crown led no evidence that contradicted the unfeasible, scattered and “brain storming” character of his ideas. Had the Crown wished to add a different flavour to this verbal articulation of the plan, it could have entered into evidence the contents of the USB device that Mr. Nuttall used to download the written version. It did not. In these circumstances it is proper to infer that nothing Mr. Nuttall typed on the portable hard drive supports the Crown’s position on reasonable suspicion.
[637] Moreover, it is also important to note that the fanciful character of the train plan would have been evident to the police because it was made in the context of references to other ludicrous ideas such as Mr. Nuttall’s belief that he could cause a civil war in the United States.
[638] Mr. Nuttall talked incessantly about jihad, but by the time of the Kelowna trip he had demonstrated the imaginary nature of his ideas and a lack of capacity to plan and execute them. Although Sgt. Kalkat disputed the grandiose nature of Mr. Nuttall’s jihadist ideas, the general consensus of the undercover shop and the investigative team was consistent with Officer D’s view that these ideas were “hare-brained and hokey.” Moreover, the pointed and repetitive attempts by Officer A to direct and focus the defendants on the formulation of a concrete plan of action had been singularly unsuccessful in motivating them beyond talking about their religious beliefs and their jihadist ideas.
[639] Sgt. Kalkat testified that he was not deterred by Mr. Nuttall’s failure to decide on which of his schemes he wanted to pursue. He believed that terrorists have multiple plans and ultimately focus on one. However appealing this theory about terrorist habits might be, by June 16, 2013, none of Mr. Nuttall’s grandiose and fanciful schemes had an air of reality.
[640] The Crown argues that while Mr. Nuttall had “odd” ideas about jihad, there were two plans that were more realistic. The first such plan was when Mr. Nuttall made it clear to Officer A that he wanted to kill P.R. because of a belief that he was an ex-US soldier who bragged about killing Muslims in Afghanistan. However, as vivid as his schemes to kill this person were, and despite his repeated references to P.R., there was no evidence that Mr. Nuttall took any step towards actualizing his desires. Moreover, on several occasions when P.R. was discussed, it was Officer A who brought up this subject and pressed Mr. Nuttall to talk about his desires. The police never pursued charges and did not consider the situation warranted a duty to warn. Sgt. Kalkat dismissed the idea of a tracking warrant to monitor Mr. Nuttall’s whereabouts, which would have been pursued had the police felt there was any risk to P.R. In my view, the lack of concern by the police was likely due to the fact that surveillance of the defendants did not indicate any contact between P.R. and Mr. Nuttall after he raised the subject with Officer A. The Crown argued that Mr. Nuttall only left P.R. alone because Officer A convinced him to not jeopardize his big plans by killing this man. Mr. Nuttall certainly said as much to Officer A; however, it is more likely that just like all of Mr. Nuttall’s “big” ideas, this one never acquired any substance.
[641] The second plan the Crown contends was more realistic was the defendants’ desire to kill the soldiers returning from Afghanistan. Mr. Nuttall talked about the missed opportunity regarding the returning soldiers on a number of occasions; however, this was another opportunity that had passed by without being actively pursued beyond raising the topic with Officer A. Storming the naval base in Esquimalt with AK-47s became another grandiose scheme that took no more shape than the plan to swim over to a nuclear submarine and take it hostage.
[642] What the police had learned about Mr. Nuttall prior to the commencement of the undercover investigation was of little importance by June 16, 2013. The CSIS tip about potassium nitrate was of no interest to the police after early March 2013 and there was no evidence that during the undercover operation Mr. Nuttall had made any attempts to acquire the ingredients to make an explosive. The M.C. complaint had gone no further than the undercover operation in discovering that Mr. Nuttall held extremist jihadist views. Mr. Nuttall had been convicted of violent crimes; however, as described earlier, his last conviction was ten years old. During the undercover operation, Mr. Nuttall stated repeatedly that he had left this violent drug enforcer life behind when he converted to the Muslim faith. There was no evidence that this was untrue.
[643] During the early days of the undercover operation, the RCMP received tips from CSIS about Mr. Nuttall possibly trying to purchase a weapon. The police never secured any evidence that Mr. Nuttall had taken steps towards acquiring a gun. There is no doubt that Mr. Nuttall expressed a desire to purchase a gun, and he repeatedly asked Officer A to acquire one for him. Nevertheless, Sgt. Kalkat testified that it was easy to purchase a gun in the Lower Mainland and Mr. Nuttall told Officer A that he had a friend who had access to a firearm that was for sale. Consequently, if Mr. Nuttall had really wanted a gun, he could have secured one. However, nothing came of his desire to have a gun beyond talking to Officer A about it. Moreover, consistent with all of Mr. Nuttall’s plans, he continued to place obstacles in the way of any steps towards accomplishing what he wanted. A firearm was not very useful to Mr. Nuttall because he had no experience with weapons and needed Officer A to provide him with training before anything could be done regarding his schemes.
[644] 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.
[645] 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.
[646] Moreover, the defendants’ lack of motivation to act out violently, beyond talking to Officer A, was tested twice during the operation. When additional police contact and surveillance of the defendants was put in place for the Vancouver Sun Run, the police concluded that Mr. Nuttall had no plan to attack people during the race. Similarly, when the RCMP became concerned that Mr. Nuttall might engage in a copycat bombing after the Boston Marathon incident in April 2013, he did not even raise the subject with Officer A when a call was made to him on the day of the bombing.
[647] Early on Mr. Nuttall talked a great deal about his efforts to recruit A.A. into his plans for jihad; but these proved to be exaggerated and prior to the Kelowna scenarios Mr. Nuttall confirmed that their roommate was not going to play any part in a plan. Ultimately, Ms. Korody confirmed that A.A. knew nothing of their jihadist ideas. Even T.E., a person Mr. Nuttall was certain would participate in his schemes, disappeared from the scene in mid-April 2013. The police were never able to confirm anything that Mr. Nuttall said about T.E. Indeed, the RCMP discovered that T.E. was in the Lower Mainland when Mr. Nuttall said he had gone to Sudan to fight a jihadist war.
[648] 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.
[649] Realistically, the defendants had proven themselves to be marginalized, isolated people who espoused extremist jihadist views but were neither motivated to act on their beliefs nor capable of taking steps to accomplish acts of violence in support of their beliefs. Some of the officers involved in Project Souvenir appeared to hold this view of the defendants and advocated a different course of action than the one spearheaded by Sgt. Kalkat.
[650] In this regard, I agree with the defence submission that Sgt. Kalkat’s decision to present the opportunity to the defendants was based entirely on his belief that Mr. Nuttall was predisposed to violence and that given enough incentive he would commit a terrorist act. Predisposition falls far short of evidence that the defendants were already engaged in terrorist activity beyond merely espousing terrorist beliefs. Random virtue-testing is not limited to people who are entirely innocent and have no predisposition towards criminal behaviour. The principles established in Mack are designed to ensure that one standard of police conduct is applied to all persons in our community regardless of their criminal propensities.
[651] Random virtue-testing means the police have presented an opportunity to commit a crime without having a reasonable suspicion that the target is already engaged in the crime, and that suspicion cannot be based on propensity alone. If it were otherwise, anyone with a criminal record could be unfairly targeted by the police. Although in Mack, Lamer J. referred to the mischief of random virtue-testing as “the serious unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of a criminal offence” (at para. 115), he went to great lengths to divorce any connection between entrapment and propensity and refused to follow the majority judicial view regarding predisposition in the United States. Justice Lamer concluded that it is anything but a foregone conclusion that someone who is predisposed to a crime would have committed it without the need for inducement from the police (at para. 105).
[652] The Crown argues that plotting terrorist action constitutes being “involved or engaged” in terrorist offences. Although recent amendments to the Code appear to criminalize the expression of beliefs that promote the commission of terrorist activities, in 2013 it was not an offence in Canada to hold and openly express views that promote violence in support of political or religious objectives. Moreover, what evidence did the police have that Mr. Nuttall was doing anything more than espouse his beliefs? There was a general consensus among the police involved in Project Souvenir that none of Mr. Nuttall’s grandiose schemes were realistic and he never indicated how he was going to accomplish those schemes. Instead, he talked and talked for months without demonstrating any progress in respect of them. Mr. Nuttall even characterized his own progress as just a lot of talk when asked by Officer A if he was any further along with his plans from the days when T.E. was involved. In addition, Mr. Nuttall repeatedly placed obstacles in the way of accomplishing any of his stated objectives. This was despite Officer A’s continuous efforts to eliminate all of these obstacles.
[653] Turning to Ms. Korody specifically, the first meaningful contact between her and Officer A occurred on May 5, 2013, when the defendants drove to Whistler in Officer A’s vehicle. Before this trip the RCMP’s knowledge of Ms. Korody’s desire to participate in any of Mr. Nuttall’s jihadist ideas or schemes came from Mr. Nuttall. He was a notoriously unreliable source of information and, in my view, the RCMP would not have had a reasonable suspicion that Ms. Korody was involved in criminal activity solely based on his statements about her intentions. I agree with the Crown’s submission that the police are entitled to accept at face value Mr. Nuttall’s statements about his own criminal intentions (unless there is evidence to doubt the veracity of such statements); however, I do not consider R. v. Gingras, 2013 BCCA 293, an authority for the proposition that the RCMP properly relied on unverified hearsay about Ms. Korody, without any direct contact with her, to ground their reasonable suspicion. Apart from Mr. Nuttall’s statements, the police had no reasonable suspicion that Ms. Korody shared her spouse’s jihadist views.
[654] Nevertheless, during the Whistler scenario, it became apparent that Ms. Korody was complicit in Mr. Nuttall’s grandiose schemes and was willing to help him accomplish these plans. Although Mr. Nuttall was always the driving force behind the terrorist schemes, her participation in the discussions about terrorist actions during the Whistler scenario provided the police with a reasonable suspicion that she was willing to play a role in any of her husband’s plans.
[655] Even though direct contact between Officer A and Ms. Korody remained infrequent after the Whistler scenario, the investigative team treated the defendants as a team. The police orchestrated her attendance during scenarios, including the Victoria recce and the Kelowna trip. Officer A regularly pressured Mr. Nuttall to include Ms. Korody in the scenarios by forcefully expressing his belief that she was going to be a participant in the plan.
[656] During the Victoria recce, Ms. Korody demonstrated no greater commitment than Mr. Nuttall with regard to a specific plan or the execution of any plan. She continually deferred to Mr. Nuttall and her subservience to him was clear to the police. In addition, while discussions between Officer A and Mr. Nuttall about his jihadist ideas were protracted, Ms. Korody rarely participated in their discussions and, for the most part, slept through it all. She said very little that would have informed the RCMP’s beliefs about her commitment to carrying out jihad apart from her conservative Muslim beliefs that a wife must obey her husband.
[657] Sgt. Kalkat agreed that the investigative team expected Mr. Nuttall would exert his authority over Ms. Korody and involve her in whatever jihadist plan he devised. The police knew that Mr. Nuttall’s conservative views about Muslim women, and his dictatorship over Ms. Korody, a Muslim wife, would lead her to obey his commands. At all times she appeared to be an obedient and subservient Muslim wife.
[658] During the Kelowna trip the offer was communicated to the defendants jointly on the basis that both of them would carry out the pressure cooker plan using the C4 acquired by the police. By this time, mid-June 2013, she had shown no more capacity to carry out and plan a terrorist act than Mr. Nuttall had demonstrated. In addition, the police had no evidence that she had taken any steps to accomplish a terrorist plan or that she might act independently of Mr. Nuttall.
[659] 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.
[660] 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.
[661] If I am wrong, and the continuing expression of violent jihadist beliefs and schemes provided the police with a reasonable suspicion that the defendants were already involved in terrorist activity, I turn to the second means by which the RCMP are alleged to have entrapped the defendants. I begin by addressing the Crown’s argument that the defendants are precluded from claiming inducement in light of the jury’s verdict.
[662] The Crown submits that due to the defendants’ arguments to the jury at trial, and their subsequent convictions, it is not open to them to claim the police induced them to commit the offences. I am satisfied that the Crown’s submission in this regard is fundamentally flawed.
[663] The Court’s final instructions to the jury specifically stated that motives apart from those prohibited by s. 83.01 would not raise a reasonable doubt as to the defendants’ guilt, provided the jury was satisfied beyond a reasonable doubt that one of the defendants’ motives was for a terrorist purpose as defined by the Code. The jury was instructed that the conduct and words of the police were irrelevant to the guilt or innocence of the defendants, except where the Court expressly instructed them otherwise. At paras. 117-118 of the instructions, the Court directed the jury as follows:
[117] There has been a large amount of evidence led in this trial about what the police did and said to the accused during the undercover police operation. Except where I specifically instruct you otherwise, the words and conduct of any of the undercover police officers cannot be considered by you in determining the guilt or innocence of the accused. Whether or not the police encouraged, promoted, counselled or assisted the accused to commit any of the offences charged in the Indictment is not a relevant concern for you in your deliberations.
[118] You may of course consider the words and conduct of the undercover police officers when you assess their credibility as witnesses in the trial. You may consider what, if any, impact the words and conduct of the undercover police officers had on the motives for the accused’s actions when considering whether the crown has proven the greater offences in Counts 1, 2 and 4 of the Indictment, which I will describe for you shortly.
[664] In the outline of the position of the Crown, the jury was made aware that other non-terrorist motives were irrelevant if one of the defendants’ motives included a prohibited motive. The Crown’s position was outlined at para. 114 of the instructions:
[114] In this case the crown argues that Mr. Nuttall and Ms. Korody committed the offences charged because of their religious and political beliefs that violence against non-Muslims is required by Allah, and their interpretation of the scriptures in the Koran, which govern the Muslim faith, to redress harm caused to Muslim people through violence. The crown argues that while they may have other motives, they were motivated by ideological, religious and political beliefs and their actions were designed to intimidate the public and compel the government to change its policies towards the Muslim “nation” by causing death or serious bodily injury. Ultimately, the crown asks you to conclude that it has proven beyond a reasonable doubt that the accused acted “for the benefit of, at the direction of, or in association with a terrorist group” that consisted of only the accused. [Emphasis added.]
[665] The jury was instructed that on the question of terrorist motive, they were entitled to consider the defendants’ character and the impact of the police conduct and words on their motivation for the offence (final instructions at p. 36A para. 3 and at p. 36 para. 115). However, subsequently the jury was clearly instructed that they need not find that the only motive the defendants had was that prohibited by s. 83.01 of the Code. At para. 206 of the instructions, the Court said:
[206] When you consider this element of the offence, you do not have to find that the accused acted only ‘for the benefit of, at the direction of, or in association with a terrorist group.” The accused may have other motives for their actions but the crown is only required to prove beyond a reasonable doubt that one of the motives for the accused’s actions was for one of these three alternate circumstances. You also do not have to be unanimous in regard to any one of these three circumstances provided you all agree that one of them has been proven beyond a reasonable doubt. [Emphasis in original.]
[666] This instruction was repeated at para. 211:
[211] Remember, there is no onus on the accused to prove that their motive was not “for the benefit of, at the direction of, or in association with a terrorist organization consisting of themselves. That onus always remains with the crown to prove this element of the offence beyond a reasonable doubt. In other words, as long as the evidence raises a reasonable doubt that one of the motives of the accused was not “for the benefit of, at the direction of, or in association with” a terrorist group, then the greater offence has not been proven. If you cannot decide what the accused’s motive was then you have a reasonable doubt and cannot find that they committed the conspiracy “for the benefit of, at the direction of or in association with a terrorist group.” [Emphasis in original.]
[667] Finally, in response to a question from the jury regarding the motive required to prove the greater offences in Counts 1, 2 and 4, the Court again made it clear that the presence of other motives would not raise a reasonable doubt if the jury concluded that one of their motives was prohibited by s. 83.01. At para. 19 of the response to their question, the Court instructed as follows:
[19] Remember, the defence is only required to raise a reasonable doubt that either: (1) the accused’s motive or motives did not include any of the three terrorist related circumstances identified above or (2) the accused’s motive or motives was to act for the benefit of, at the direction of or in association with a terrorist group that included more than just themselves, and without considering the four undercover officers.
[668] Thus, the jury’s verdict can only be interpreted as a finding that the Crown proved beyond a reasonable doubt that one of the defendants’ motives was prohibited by s. 83.01. The verdict is not conclusive that there were no other motives for their actions.
[669] I also agree with the defence submission that entrapment does not involve a subjective inquiry into the actual motivations and intentions of the defendants. Whereas the jury’s mandate is to decide whether the Crown has proven the elements of the offences charged, including the requisite mens rea, when addressing the defence of entrapment the Court must objectively assess the conduct of the police to determine whether it went beyond providing an opportunity to commit the offence. Thus, on the facts of Mack itself, the trial judge’s search for Mr. Mack’s actual intention or motivation led to a reversal of his conclusion that the police did not entrap him. Even where the evidence proves the accused’s sole motivation for the commission of an offence is unrelated to the police conduct, a finding of entrapment may follow if the strategies used by the police go beyond the acceptable limits described in Mack.
[670] Accordingly, I find the verdict of the jury does not limit the Court’s inquiry into whether the police went beyond offering the defendants an opportunity to commit an offence and induced its commission.
[671] When assessing whether the police crossed the line into inducement of the offences committed by the defendants, it is important to view the entire undercover operation in its full context. This was an undercover operation in which the police took two marginalized people, who had done no more than verbally fantasize about engaging in violence for jihadist purposes, and skillfully manipulated them into participating in an act of terrorism that was planned almost entirely by the police and which could not have been executed without overwhelming assistance from the police. This was not a situation in which the police were attempting to disrupt an ongoing criminal enterprise; rather, the offences committed by the defendants were brought about by the police and would not have occurred without their involvement. By any measure, this was a clear case of police-manufactured crime.
[672] There is no doubt that Mr. Nuttall held extremist views of the Muslim faith, which included the use of violence to send a political message. Further, Ms. Korody appeared to accept Mr. Nuttall’s extremist views of Islam. However, the actions of the police went far beyond presenting the defendants with an opportunity to commit an act of terrorism. The police engaged in a multi-faceted and systematic manipulation of the defendants to induce them into committing a terrorist offence.
[673] In Mack, Lamer J. outlined a series of factors relevant to the assessment of whether police went beyond opportunity and strayed into inducement. Virtually every one of those factors is in play in this case. Rather than address each under a separate heading, I have grouped them together, given the degree to which they are intertwined.
[674] From the outset of the undercover operation the police deliberately set about to convince Mr. Nuttall, and later Ms. Korody, that Officer A was part of a large and sophisticated terrorist organization that engaged in international acts of violence and was well-financed and resourced. Officer A and Officer C led the defendants to believe that they had previously carried out terrorist acts of violence and knew what it was like to kill people. Officer A portrayed Officer D as an important person in this large-scale terrorist organization and emphasized his radical and violent extremist beliefs in his conversations with the defendants. Although the defendants demonstrated throughout the operation a naïve, gullible and often child-like character and demeanour, I find that an average person, with strengths and weaknesses, but unburdened by these personal frailties, probably would have come to the same conclusion as the defendants. That is, that the undercover officers were part of a sophisticated terrorist organization and would not hesitate to eliminate them if they failed to meet their expectations.
[675] The measures taken by the police to instill these beliefs in the defendants included demonstrating tradecraft relevant to clandestine operations; fictitious telephone calls in the defendants’ presence to give the impression that there were other members of the organization beyond Officer A and that he was an important person in the group who had people watching to keep him secure from police interference; the introduction of associates who were portrayed as part of the criminal element; direct statements by Officer A, Officer C and Officer D that they were mujahideen and involved in jihadist terrorism; and, the continual supply of money to the defendants for jobs, groceries, cigarettes, clothing, computer hard drives, telephones, hotel stays, trips to Victoria and Kelowna, bus passes and transportation. Further, Sgt. Kalkat instructed the undercover operators to adopt the behaviour and language of terrorist cells to make their cover more realistic and these instructions were followed by the officers.
[676] Officer A’s promises to provide C4, guns, weapons training, security, international connections, escape plans, and logistical support all contributed to the defendants’ beliefs about this terrorist organization. Further, Officer A’s assurances that he had a list of 100 Muslim-killing soldiers that he planned to hunt down drove home to the defendants the power of the terrorist organization and its vindictive nature. On the night of June 30th, Officer A eliminated Mr. Nuttall’s concerns about the security guards at the Parliament buildings by instructing him that Officer C would “take care of” the guards and any witnesses. Officer A agreed that the defendants could have inferred from his statements that Officer C was going to kill these people and in their private conversations the defendants confirmed this was their belief. Moreover, Officer A referred to Officer C as a “professional” when Mr. Nuttall questioned whether he knew what to do with the guards.
[677] I am also satisfied that the deceit practised upon the defendants constituted an implied threat. Any reasonable person would have concluded that the members of such a terrorist organization were ruthless. The defendants were so convinced that Officer A and his associates were part of Al Qaeda that they came to fear the officers would kill them if they did not complete the terrorist plan that was orchestrated by the police. It was immediately after the Whistler scenario that Mr. Nuttall first expressed fears that a failure to please this terrorist organization would result in his death. Although Officer A tried to calm Mr. Nuttall’s fears, it is apparent that Mr. Nuttall continued to hold these beliefs. He consistently expressed fear of the consequences of angering Officer A and his associates during private conversations with Ms. Korody. She agreed with his assessment that if they failed to follow through with the plan they would be killed. The defendants talked about their fear of death at the hands of Officer A and his associates during the Kelowna scenario, while they constructed the pressure cooker devices at the Sundance Motel, and before they planted the devices while staying at the hotel in Sidney.
[678] The police were well aware of the defendants’ fears that they would be killed if they did anything to anger Officer A and his associates. Sgt. Kalkat believed that it was sufficient to provide the defendants with an opportunity to back out of the mission and, when Officer A relayed this message, he always promised that they could remain friends whatever choice the defendants made. However, these “outs” must be considered in their proper context. The standard “out” was of little reassurance if it was coming from someone whom the defendants believed was a terrorist and part of a sophisticated terrorist organization.
[679] As described earlier, the police thoroughly convinced the defendants that they were involved with a sophisticated terrorist organization. It is highly unlikely that the average person would accept that once introduced to members of a terrorist group, they could disengage from this group without serious consequences. Officer A agreed with Mr. Nuttall’s statement that joining Islam was like the “blood in, blood out” philosophy of the Hells Angels; that is, one could only leave Islam by death. Officer A added that even in death one could not leave Islam. Moreover, on several occasions Officer A demonstrated anger and impatience with Mr. Nuttall in a manner that would have clearly contradicted any notion that Officer A would remain friends with someone who disappointed him.
[680] Officer A’s confrontations with Mr. Nuttall immediately after the Whistler trip, and during and en route back from Kelowna, demonstrated the angry side of this terrorist. Officer A had brought home to the defendants the travesty of their waste of the mujahideen’s time, money and resources during the Kelowna scenario. He told the defendants that they had been disrespectful of the mujahideen who had made their stay in Kelowna possible. The defendants’ private conversations during this trip revealed that this message had been received and that their fear of Officer A was now driving their actions. Further, after Officer D, playing the role of a superior in the terrorist organization, expressed palpable anger and frustration with Mr. Nuttall because he was not ready to complete the mission, no rational person would have concluded that they could simply back out without any adverse consequences.
[681] The impact of Officer D and Officer A’s behaviour on the defendants’ psyche would have been brought home to the police when the intercept at the Sundance Motel recorded Mr. Nuttall cautioning Ms. Korody that if they failed to complete their part in the mission Officer A would go from being a nice guy to a “fucking monster” and when he articulated Officer A’s four contingency plans for them, which all included their demise. It is also significant that Cpl. Matheson was not briefed on these expressions of fear by the defendants. Had he been apprised of these statements, the scenarios that followed could have been altered to take the defendants’ fears into account.
[682] I find that the police used the fear that they had generated by their words and actions to induce the defendants to follow through with the pressure cooker plan in a manner that would likely have induced “an average person with both strengths and weaknesses”. The manner in which they convinced the defendants of their identity as a sophisticated terrorist group amounted to an implied threat that they would be killed if they failed to carry through with the mission or disappointed Officer A.
[683] The Crown argues that in order to investigate terrorist groups and infiltrate their ranks it is necessary for the police to take on the characteristics of a terrorist. The authorities cited by the Crown illustrate that in extreme circumstances even overt displays of violence are necessary and justifiable because otherwise the police would be unable to gain the confidence and trust of the terrorists. I accept that there are circumstances that may justify the use of implied or express violence and even illegal acts by the police as a means of investigating serious crimes. Clearly, when attempting to infiltrate the Hells Angels and other sophisticated criminal organizations, an undercover operator must use extraordinary measures to ensure his own safety and his acceptance as part of the group. In such cases there are no other effective investigative techniques available. Lising is a clear example of the tolerance exhibited by the Court with regard to the conduct of a police agent due to the dangerous nature of the Hells Angels and the reluctance of its members to speak freely with anyone outside of the group.
[684] Nevertheless, Ms. Korody and Mr. Nuttall were not a sophisticated terrorist organization. They were two marginalized persons who held violent jihadist beliefs, but lacked the means to carry out any of their ideas and had no associates who could possibly make any of their ideas a reality. Most significantly, they were not engaged in an ongoing criminal venture that had to be disrupted by the police.
[685] In addition, extraordinary investigative methods were not necessary to persuade the defendants to share their ideas about jihad with Officer A. Neither of the defendants was cautious about sharing their jihadist beliefs. From the first meeting with Officer A, Mr. Nuttall literally exploded with his talk of violent jihad. Mr. Nuttall had openly shared these beliefs with M.C. and anyone who attended the various mosques he frequented. Supt. Bond testified that he had never known a target to be so immediately open with a stranger about his criminal intentions. Mr. Nuttall was an open book about his plans before Officer A instilled in him a belief that he was part of a sophisticated terrorist organization that was actively involved in terrorist missions. Mr. Nuttall felt comfortable talking to Officer A about jihad the moment he concluded Officer A was a Muslim. During some of the early meetings Mr. Nuttall voiced some small doubts about Officer A; however, these thoughts were transient in nature and Mr. Nuttall appeared to talk himself out of them with little input from Officer A.
[686] Moreover, portraying Officer A as part of a terrorist organization was not required to maintain public safety. Convincing the defendants that they were associating with a terrorist organization was not intended to induce them to disengage from their beliefs about violent jihad or act as a calming influence. If anything, the ruse increased Mr. Nuttall’s excitement about doing jihad. In terms of personal safety, Officer A had concerns about Mr. Nuttall’s marble gun; however, he agreed not to carry it with him because Officer A said it would draw heat. Mr. Nuttall accepted this rationale before the police had fleshed out the cover story of the sophisticated terrorist group. The only time Mr. Nuttall brought the gun along, contrary to Officer A’s instructions, was when he feared Officer A’s terrorist partners had ordered him to be killed. That meeting ended with Mr. Nuttall breaking down into tears. This would not have raised such concerns for Officer A’s safety that the police were forced to perpetuate and embellish the elaborate ruse of a powerful terrorist organization.
[687] As Bennett J.A. stated in Lising, “[t]he police cannot do whatever they like under the guise of investigating serious crime, or even organized crime that is frequently beyond detection” (at para. 87). The balance in this case between the public interest in ferreting out serious crime, and the use of investigative techniques that are questionable in a free and democratic society, did not warrant the steps taken by the police. While their motive may have been to instill trust and respect for the undercover officers, they went too far and, instead, generated the kind of fear that would probably have motivated the average person, with strengths and weaknesses, and would surely have motivated people who possessed the vulnerabilities demonstrated by the defendants.
[688] The police conduct also involved blatant manipulation of the defendants to exploit their dependence upon Officer A and his friendship, as well as their particular vulnerabilities. The defendants were people who lived on the fringe of society; they had no jobs and were entirely dependent upon social assistance. They had few friends and no support from family members after Mr. Nuttall’s grandmother moved to the Okanagan in late March 2013. They were recovering heroin addicts who were dependent upon a daily supply of methadone that was delivered to their suite. Their primary activity was playing online video games at home and they rarely ventured outside of a four-block radius from their basement suite. Paintball appeared to be the only outside activity that brought them into contact with other people. The defendants also demonstrated that they were not very intelligent, gullible and quite naïve and child-like. To say they were unsophisticated is generous.
[689] There is no expert evidence that Mr. Nuttall had sustained any brain damage during his life or that his brain had been damaged by drugs. However, the many hours of recorded intercepts reveal a person who had obvious intellectual deficits that should have been apparent to the police. Mr. Nuttall had rambling and disorganized thought processes, and was unable to stay focused on a single topic for any period of time. During scenarios in March, he was observed to have slow speech and then rapid speech. There were also long pauses before he was able to respond to questions or statements made by Officer A. This and other behaviour led the undercover shop to consider a psychological assessment; however, the investigative team did not share their concerns.
[690] Officer A quickly became the defendants’ sole trusted friend and companion. They looked to him for all the answers to life’s questions and were highly dependent upon him in every respect. When Officer A was absent from their lives they felt abandoned. Officer A wielded great influence over the defendants; he became their leader and they were his disciples as Mr. Nuttall said he wanted to be early on in the operation. Socially and economically isolated, the defendants found solace and contentment with their only true friend. When they were hungry and had spent all their welfare money, Officer A bought them groceries. Officer A, as directed by the undercover shop and the investigative team, used the defendants’ attachment and dependence upon him to manipulate them into doing what he wanted.
[691] Undoubtedly, the control exercised by Officer A over the actions of the defendants was used to ensure public safety; for example, he convinced Mr. Nuttall to leave his marble gun at home and also ensured that he did not engage in any violent acts that had not been sanctioned by the RCMP. However, Officer A’s manipulation of this close relationship with the defendants went far beyond what was necessary to ensure his safety and that of the public.
[692] Officer A ensured that Mr. Nuttall involved Ms. Korody in the operation on several occasions despite his reluctance to do so. He ultimately dictated which plan Mr. Nuttall had to choose for his jihadist statement and the date and timing of this mission. He tricked Mr. Nuttall into believing that whatever he did was Allah’s will and he used Mr. Nuttall’s respect for him as a spiritual guide and as an experienced terrorist to ensure he remained focused on achieving the goals that Officer A set for him.
[693] The defendants’ unsophistication and child-like nature made it easy for Officer A to manipulate their actions and beliefs. They came to love and trust him completely. Apart from Officer A’s promises that they could back out of any plan with impunity, the defendants accepted whatever Officer A said, including what he said about such subjects as jihadist violence, the Islamic faith, politics, and friendship. Moreover, throughout the undercover operation, Officer A repeatedly duped Mr. Nuttall into believing that Officer A’s beliefs and ideas were his own.
[694] A significant part of the police manipulation of the defendants involved isolating them from outside influences. The police used the control exercised by Officer A to isolate them from their friends and family. The defendants had few friends and associates to begin with, and after they were introduced to Officer A they shunned contact with other people. Officer A encouraged this isolation by counselling Mr. Nuttall not to talk to his friends about him and not to trust anyone else; by precluding Mr. Nuttall from contacting his mother in Victoria during the recce in May 2013 despite his entreaties; by instructing him to get rid of people like the Fijian roommate; and by discouraging Ms. Korody and Mr. Nuttall from contacting any of their friends during the shopping trip for the pressure cookers. During the shopping trip, it was obvious that Officer A purposefully distracted Ms. Korody when she proposed that her parents could give her some extra money to cover the rent shortfall. While Officer A’s efforts to keep the defendants away from friends and family was in part designed to maintain their focus on the mission, his actions necessarily made them more dependent upon him and increased his influence over their actions and beliefs.
[695] Officer A did not stop with social isolation. He also effectively isolated the defendants from outside religious guidance. The police must respect the high value our society places on the sanctity and privacy of one’s religious beliefs and practices. By counselling the defendants to seek spiritual guidance solely based on introspection and his interpretation of the Quran, Officer A engaged in conduct that was highly improper, particularly in light of the relationship of dependence that the police had fostered and achieved with the defendants.
[696] Neither defendant had even a working knowledge of the Muslim faith. They were new converts and demonstrated a lack of understanding of the faith in their actions and by the questions they asked Officer A about the rules followed in the Islamic religion. Based on the intercepted conversations with the undercover officers, Dr. Safi opined that Mr. Nuttall’s knowledge of the Quran and the Islamic faith was very superficial and often confused. He misunderstood verses quoted from the Quran by failing to appreciate their proper context. Dr. Safi testified that even a person with a rudimentary knowledge of the Islamic faith would have known that a convert does not attempt to interpret the Quran and the hadiths of the Prophet Mohammed on his own and that the faith requires him to seek help from a religious scholar to understand their meaning.
[697] On the other hand, Officer A had been portrayed as a Muslim from birth who had grown up in the Middle East. He instructed Mr. Nuttall and Ms. Korody about religious practices throughout the investigation. They believed he was well versed in the Quran and the rules of the faith. The average person would be unlikely to question his religious instruction and advice in these circumstances.
[698] Officer A’s offer to become Mr. Nuttall’s conduit to religious knowledge is extremely significant because of the value Mr. Nuttall placed on Officer A’s religious advice. As early as April 19, 2013, Officer A knew that Mr. Nuttall had expressed a desire to become his “disciple”. Officer A responded to Mr. Nuttall’s request for spiritual guidance by encouraging him to obtain this kind of advice through him in circumstances where it was apparent that Mr. Nuttall was highly dependent upon him and the only person he could trust about these matters.
[699] During the undercover operation Mr. Nuttall repeatedly expressed doubt that his jihadist beliefs were consistent with the Islamic faith and the true Islam. He repeatedly told Officer A that he needed spiritual guidance on the use of external jihad. Mr. Nuttall was not simply looking for a friend like Officer A; he feared for his soul and wanted to be certain that his actions would be acceptable to God. When one looks at the whole of Mr. Nuttall’s statements during the operation, it is quite apparent that he was searching for a way to act out his political grievances in conformity with something he identified as true Islam even though he did not really know what this was.
[700] Instead of encouraging Mr. Nuttall to go to a mosque and seek instruction from an imam, Officer A directed him to “look into his own heart” for spiritual guidance. When this did not appear to satisfy Mr. Nuttall’s quest for spiritual guidance, Officer A said he would answer all of Mr. Nuttall’s questions and effectively discouraged him from finding his own advisor by promising to get one for him. Early on, Mr. Nuttall revealed to Officer A his lack of understanding about the Islamic faith and Officer A took control over his spiritual training.
[701] As Dr. Safi testified, by promoting an introspective approach to the interpretation of the faith, and at the same time, counselling him to adopt an extremist view of the use of violence, Officer A isolated Mr. Nuttall from any moderate viewpoint and simultaneously propelled him toward a more radical concept of jihad. The Crown argues that Officer A’s statements to “look into his heart” for the meaning of the Quran are consistent with the Modernist view of Islam; however, Officer A failed to point out that the sects that promote independent reasoning about the Quran have also adopted a non-violent approach to jihad.
[702] Mr. Nuttall clearly expressed dissatisfaction with moderate Muslims and imams who preached “watered down” religion and he did so as late as June 16th while en route to Kelowna. However, Mr. Nuttall was easily manipulated by Officer A who used his influence over the defendants to foreclose any opportunity for a moderate imam to change their views about the use of violence as part of the Islamic faith.
[703] Further, I accept Dr. Safi’s opinion that during the undercover operation, Officer A repeatedly denigrated the role of the imam in the Islamic faith. This effectively discouraged the defendants from seeking spiritual guidance from such a scholar, particularly at times when Mr. Nuttall expressed reticence about committing acts of violent jihad.
[704] The fact that Officer A chose to give religious advice at all is objectionable; however, preaching ideas that promoted the use of violence and allaying the defendants’ doubts about killing people makes his conduct far more sinister. When Mr. Nuttall said that he and Ms. Korody had serious doubts that killing people would please Allah, Officer A gave him the same spiritual advice about pre-determination that violent extremists use to radicalize people. Cst. Mokdad testified that the language used by Officer A when providing religious guidance to the defendants at these times was descriptive of the beliefs of radical jihadists who use the Al Ansar website. Dr. Safi’s testimony supported this view of Officer A’s advice.
[705] In addition, Dr. Safi testified that by promoting self-education through lectures Mr. Nuttall could read on the Internet, Officer A was propelling him towards the extremists’ views of Islam and the Muslim faith. The Internet is the primary propaganda tool for extremist groups that use religion as a justification for violence. Dr. Safi testified that most people who become radicalized gain their knowledge of the Islamic faith on the Internet and not from studying at a mosque. Just like Osama Bin Laden and other terrorist Islamic figures, Officer A denigrated traditional Islamic scholars as useless and without worth; violent jihadists disparage the entire apparatus of law-based religious thought in order to appeal to politically frustrated targets with their propaganda.
[706] The type of spiritual guidance that Mr. Nuttall received was critically important because while his underlying motive for action was the desire for political change, he was relying on religious beliefs to justify violence. Telling him to do his religious research on the Internet was dangerous. On the Internet, a recent convert is not going to learn of the reasoned and scholarly debate among mainstream Muslims as to the nature of the restrictions the Quran places on the outward expression of jihad in the form of violent attacks. Electing to become Mr. Nuttall’s trusted spiritual advisor was also dangerous. Officer A’s concept of pre-destination encouraged the defendants to put aside their qualms about killing people because Allah decides everyone’s fate. There is no free will to choose one’s destiny. Further, by marrying the concept of the absence of free will with the idea of “looking into [his] heart” to determine whether his actions were going to please Allah, Officer A effectively said, “Whatever you decide to do is right because God has already pre-ordained what is to happen.” Either way, Officer A was using religious advice to induce the defendants to act out their jihadist beliefs through a terrorist plot.
[707] Dr. Safi testified that Officer A’s explanation of this aspect of the Muslim faith has been ruled heretical for the past 1000 years. The mainstream consensus joins the concept of an omniscient, all knowing God, with the free will of God’s subjects to make choices about their actions within the limits of God’s laws. Dr. Safi testified that Officer A’s statements that whatever you do is God’s bidding would be regarded as absurd by classically trained Islamic scholars. Even Officer A conceded that he had not explained pre-destination correctly because he had left out the role free will plays in this concept.
[708] Both Mr. Nuttall and Ms. Korody adopted Officer A’s interpretation of pre-destination without question. In response to Officer A’s instructions about the Islamic faith, Mr. Nuttall and Ms. Korody began using the same language about looking into one’s heart and trusting in Allah’s will. In a colourful reference to a person who looked like a Somali pirate and was called Gabriel, Mr. Nuttall believed he was getting a sign from Allah who was telling him to “look into his heart”. Officer C immediately affirmed Mr. Nuttall’s belief that what the pirate said was a sign from Allah.
[709] What is most concerning about Officer A’s conduct is that he used religious advice as a means of quelling the doubts the defendants had about using violence to achieve spiritual goals at critical times in the operation. As the project progressed, Officer A’s manipulation of Mr. Nuttall’s beliefs about the Islamic faith became more and more intrusive and directive until he became almost dictatorial on the night before the devices were planted in Victoria. Knowing that Mr. Nuttall had serious doubts about carrying out a mission that could kill innocent people, Officer A told him that there was no time to obtain spiritual guidance. In any event, he did not need spiritual guidance because Allah determined what happened in life and people like Mr. Nuttall just had to “look into their heart” to decide if what they were doing was Allah’s will. Officer A said that imams have no greater knowledge of the Quran than Mr. Nuttall, and he denigrated the role of authoritative opinions in the Islamic faith. Officer A also reinforced the notion of pre-determination without any free will and pointed Mr. Nuttall in the direction of the terrorist viewpoint by referring him to Anwar Al-Awlaki.
[710] At this critical time, Mr. Nuttall’s expression of doubts about the religious justification and moral propriety of the mission should have set off alarm bells within E-INSET. Instead of instructing Officer A to explore these expressions of doubt, however, Officer A was left to his own devices. Officer A used his influence over Mr. Nuttall to shut down any thought of seeking spiritual guidance that could have led him to abandon the mission. He went so far as to tell Mr. Nuttall there was no such thing as a spiritual advisor in the Muslim faith and used his influence over Mr. Nuttall to convince him that it would be a waste of time to seek spiritual guidance from anyone except his own conscience. Instead of testing Mr. Nuttall’s resolve to press on with the mission by agreeing that they should delay any plans until Mr. Nuttall was satisfied that it was in accordance with the will of Allah, Officer A told Mr. Nuttall that it was too late to get spiritual guidance regardless of how confused he was about violent jihad. Further, Officer A eliminated any moral dilemma for Mr. Nuttall by giving him the Al Qaeda version of pre-destination, knowing that Mr. Nuttall accepted everything that he said as the truth and adopted it as part of his own belief system.
[711] In my view, Officer A capitalized on Mr. Nuttall’s psychological frailties (he was easily manipulated, naïve, gullible, immature, co-dependent, had abandonment issues, and was easily distracted) to further the police investigation. He took advantage of Mr. Nuttall’s recent conversion to the Muslim faith, and his acknowledged lack of knowledge concerning its tenets, to secure evidence required to prove the elements of the offences the defendants were ultimately charged with.
[712] I agree with Dr. Safi’s assessment that during the early meetings with Officer A, what Mr. Nuttall said about his religious beliefs concerning violent jihad are not the same expressions of doubt and confusion Mr. Nuttall voiced later on during the investigation and, significantly, towards its end. Perhaps these doubts appeared when it was apparent that the plan was now concrete and no longer just a lot of talk. There is little evidence of why he had doubts. However, it is apparent that Mr. Nuttall’s mindset was transformed from a wild abandonment towards committing acts of violence to accomplish a mixed bag of political ends, to a realization that he might actually hurt someone with what was now a feasible terrorist plan. The RCMP was privy to this change in Mr. Nuttall’s demeanour but nevertheless pressed forward with its efforts to make the pressure cooker plan come to fruition.
[713] There is no doubt about Officer A’s motivation en route to Victoria on June 30. The RCMP would not have been willing to abort their plan for the July 1st planting of the devices at the last minute after so much preparation had gone into getting the operation to this point and after many thousands of dollars had been invested in the project. By the time the defendants traveled by ferry to Victoria on June 30th, the police had a large number of officers in place to carry out the final stages of the project. Sgt. Kalkat would never have sanctioned any other course of action by Officer A at this stage of the operation. This is clearly apparent in his decision to ignore the defendants’ fears that they would be killed if they backed out of the mission.
[714] The Crown argues that what Officer A said to the defendants was not religious guidance; rather, it is common parlance for Muslims to tell each other to “look into your heart.” I am unable to accept this argument. Officer A’s guidance was clearly not limited to cultural clichés; it was wrapped up in the guidance provided on pre-destination and attached to his denigration of scholarship and the role of the imam in the Islamic faith. Moreover, the religious nature of Officer A’s advice is supported by Cst. Mokdad’s testimony and by Dr. Safi’s opinions.
[715] In this regard, I find the Crown’s submission that Dr. Safi was biased to be unsupported. It was the Crown who conducted a wide ranging cross-examination of Dr. Safi on subjects he was not asked to give an opinion on by the defence and for which he claimed no special expertise. Moreover, his refusal to agree with the Crown’s position on the signs of radicalization is not evidence of bias. Instead, this evidence revealed a reasoned analysis about the lack of accurate predictors for terrorist behaviour. While Dr. Safi did not specifically advise the Court that he recognized the duty of an expert to be unbiased, his qualifications and experience, the scholarly nature of his evidence, and his demeanour on the stand satisfy any concerns in that regard. Further, I am unable to accept the Crown’s submissions on the weight to be given to Dr. Safi’s evidence. Dr. Safi may not have had access to all of the evidence led in the trial; however, he reviewed all of the scenarios in which the topic of religious guidance came up and was cross-examined thoroughly on the unrecorded scenarios outlined in great detail in Officer A’s notes.
[716] I am also unable to accept the Crown’s argument that Officer A did everything possible to avoid giving the defendants religious advice. Early on Officer A directed Mr. Nuttall to look to him for religious guidance. Although he put Mr. Nuttall off by promising to find him a spiritual advisor, as the operation progressed Officer A began giving the defendants religious guidance directly and specifically on the key question of whether their jihadist plans and, in particular, the killing of innocent people, would be approved by Allah.
[717] The Crown also argues that what Officer A told the defendants is accepted by some sects in the Muslim faith. I find this argument inconsistent with Dr. Safi’s opinion evidence and there is no reason to doubt its veracity. However, regardless of whether Officer A accurately described the tenets of the faith, it is the fact that he chose to mould the defendants’ beliefs by giving them spiritual guidance that renders his conduct unacceptable. Whether or not Officer A’s actions violate s. 2(a) of the Charter, the gravamen of the police misconduct is the decision to use spiritual guidance to induce a crime that was motivated by religious beliefs.
[718] The police manipulation of the defendants did not stop with instilling fear, giving religious advice that promoted violent jihad and creating social isolation. In addition, the police instigated and skillfully engineered the very terrorist act committed by the defendants. The police efforts were persistent, intrusive and importuning and were out of all proportion to what the defendants contributed to the plan. The Crown argues that there were no repeated refusals by Mr. Nuttall to become involved in a terrorist plan and he was keen to engage in violent jihad from the outset of the operation. However, the factors of persistence and proportion identified in Mack are more complicated to apply in the instant case than a drug trafficking investigation. The police showed their persistence by repeated efforts to mould Mr. Nuttall into someone who could craft and execute a terrorist plan and the disproportionate nature of the police role in the pressure cooker plan demonstrated their complete failure to transform him into such a person. Further, what the police had to do in order to bring about this objective amounted to criminal offences.
[719] There is no evidence that on their own or when they were alone Mr. Nuttall and Ms. Korody crafted plans to carry out jihadist plots. It was only when they were with Officer A and the other undercover officers that they talked about committing acts of violence for a terrorist purpose. For months during the undercover operation Mr. Nuttall did nothing but talk about jihadist plots and the police became very impatient and frustrated with his apparent inability to take any positive steps towards accomplishing anything. Officer A was instructed to try to motivate them into action and he did so by counselling them to do their research; to emulate the way he did things through slow and careful analysis; to get all the details of the plan down in writing; and to be like Officer C and do what they were told efficiently, without all their annoying questions. After the failed train plan Cpl. Matheson became concerned that Mr. Nuttall was going to come up with a better terrorist plan because Officer A told him to.
[720] Officer A’s persistence was not limited to repeated instruction on how to craft a terrorist plan. Officer A had to constantly address Mr. Nuttall’s inability to focus on a jihadist plot or on anything else. Mr. Nuttall’s long diatribes bounced from one topic to another. Just when he was beginning to articulate a plan, Mr. Nuttall would begin talking about some other topic, often unrelated, and go completely off track. Officer A tried to bring him back to the subject of a specific terrorist plan and many times became openly frustrated and impatient with Mr. Nuttall’s scatterbrained thoughts and ramblings. This was a consistent theme during the scenarios right up to the end. Officer A redirected and refocused but he still could not get Mr. Nuttall to stay on track.
[721] In addition, the very nature of the defendants’ jihadist plots presented problems for the police. Their ideas were unrealistic, unfeasible and grandiose and it was quite apparent to the RCMP that without significant direction and assistance from the undercover officers the defendants would be incapable of carrying out any of their jihadist ideas. Their dream was to construct Qassam rockets and send a message to free Palestine. They wanted to storm the Esquimalt military base and capture a nuclear submarine and take over the world. Mr. Nuttall never articulated how he could accomplish any of these plots (apart from swimming up to the submarine) and the investigative team and the undercover shop generally believed that the defendants were incapable of carrying out these ideas. Indeed, their lack of capacity to accomplish any of these absurd ideas led to discussions within the undercover shop about a psychological assessment, an exit strategy and de-radicalization.
[722] The defendants’ lack of financial resources was also seen as a significant impediment to carrying out a jihadist plan. While Sgt. Kalkat believed Mr. Nuttall’s attempts to make a homemade explosive substance presented a danger to the public, the evidence gathered during the scenarios clearly indicated that he had not tried to make explosives and did not know how to make explosives. The closest he got was pondering about making explosives out of manure, which was far more complicated than Mr. Nuttall naively believed.
[723] Notwithstanding these obvious indications of the defendants’ general ineptitude, the investigative team was determined to continue with the undercover operation. The problem was that the police did not have the resources or the will to remain with Mr. Nuttall long enough to train him to construct rockets, to watch over him while he tried to learn to do this or to wait until he gave up on his ideas altogether. Despite considerable efforts by Officer A to focus the defendants on a concrete plan, and to educate them on how to craft a workable plan, they were no further along in this regard well into the project.
[724] To solve this problem the police decided to redirect Mr. Nuttall and Ms. Korody’s jihadist plans towards something that was feasible and realistic and which could be accomplished relatively quickly and cheaply; namely, the pressure cooker devices. Getting Mr. Nuttall to commit to the pressure cooker devices as his jihadist mission was extremely difficult and required a concerted, persistent effort on the part of the investigative team and the undercover shop.
[725] From late February 2013, when the undercover operation began, until early May 2013, when the defendants and Officer A travelled to Whistler, Mr. Nuttall talked endlessly about his jihadist beliefs and his grandiose schemes but showed no indication that he had taken any positive steps towards accomplishing his desires. During these discussions Mr. Nuttall also continuously raised obstacles to the completion of any of his ideas: he needed weapons and firearms training; he needed tactical training; he needed equipment to construct the rockets and a large vehicle to transport them; he needed others to help carry out the plan; he needed safe access to the Internet; he needed a printer; he needed money; and he needed religious guidance about the permissibility of the mission. Officer A’s response to all of these obstacles was to put them aside and counsel Mr. Nuttall that none of these problems were unsolvable, but that nothing could happen in that regard until Mr. Nuttall put his plans down on paper.
[726] Officer A repeatedly emphasized to Mr. Nuttall the importance of a well-prepared plan that would have to be approved by his “partner” in the organization. He directed Mr. Nuttall to research his plan and get down all of the details. Officer A paid for a portable hard drive that could be encrypted so that Mr. Nuttall could safely commit his plan to writing. Despite this assistance and specific directions from Officer A, and promises from Mr. Nuttall that he was working on his “book”, for weeks nothing was accomplished.
[727] During the Whistler scenario in early May 2013, Mr. Nuttall finally came up with a plan to hijack a passenger train in Victoria to free Omar Khadr from Guantanamo prison “off the top of his head” that was partly typed on the portable hard drive. When the police discovered that this plan was not feasible, they directed Officer A to confront Mr. Nuttall with his failure. During this confrontation, it became apparent that Mr. Nuttall was genuinely afraid of Officer A and his associates; he feared for his life. Breaking down into tears, Mr. Nuttall told Officer A that he was not a general and could not be expected to come up with plans. He only wanted to be Officer A’s disciple and take orders. It was at this point in the operation that Officer A clearly became the leader and Mr. Nuttall became his follower.
[728] Thereafter for weeks Officer A directed Mr. Nuttall to research a better terrorist plan; one that was feasible and could be accomplished in a shorter timeframe and with fewer resources. He chastised Mr. Nuttall for continuing to focus on the rocket plan and pointedly identified the weaknesses in this plan. In spite of Officer A’s instructions regarding a plan, Mr. Nuttall was unable to focus on a single idea or the steps necessary to accomplish any idea. The investigative team continued to discuss ways in which the defendants could be further directed towards a single, feasible plan despite the concerns of the undercover shop that Officer A’s influence over Mr. Nuttall created doubts about his voluntary participation in the operation and raised concerns about entrapment. Sgt. Kalkat ignored the concerns of the undercover shop and made plans for the defendants to be taken to Victoria for a reconnaissance before they had identified a plan or committed to specific targets.
[729] The Victoria recce evidenced the police manipulation of the defendants in several ways. First, Officer A manipulated Mr. Nuttall into going to Victoria before he had decided on a specific plan or selected a target. Second, Officer A manipulated Mr. Nuttall into insisting that Ms. Korody attend the recce. Third, the police used this trip as an opportunity to expand the terrorist organization in the minds of the defendants by introducing them to Officer C as an expert in security. Fourth, the police impressed the defendants with their willingness and ability to finance travel to Victoria, a stay in a hotel, meals, transportation and a private security team. Lastly, Officer A allayed Mr. Nuttall’s concerns that a plan to commit jihad would anger Allah by counselling him to adopt an extremist view of the Quran and its teachings about Allah and pre-destination.
[730] Nothing came from the Victoria recce. This trip did not focus Mr. Nuttall on a specific plan or targets as the police anticipated. Mr. Nuttall continued to talk about his grandiose schemes and appeared to be incapable of focusing on one plan or idea. When Mr. Nuttall met with Officer A on May 31, 2013, Officer A attempted to discourage these plans by pointing out the obvious impediments to accomplishing any of them. Even Mr. Nuttall placed insurmountable obstacles in the way of achieving his schemes, such as the Fijian roommate, the lack of a secure internet connection and his illness from the ant poison.
[731] Neither the defendants’ lack of sophistication nor their gullible demeanour during the Victoria recce deterred the investigative team from pressing on with the undercover operation. Now that Sgt. Kalkat was in control of the scenario objectives, he bypassed the undercover shop’s concerns about entrapment and directed that Officer A more forcefully focus Mr. Nuttall’s attention on a single, feasible plan in preference to his hokey schemes. Behind the scenes, the investigative team projected D Day or arrest day to be July 1st. They began to plan the scenarios to take place in Victoria where the terrorist act would occur and they began to make plans for the interview with Officer D as the “boss”. Discussions about the report to the Crown recommending charges and the disclosure package for the defence had already occurred and Supt. Bond decided that Project Souvenir would have priority access to all E-INSET resources over all the other E-INSET investigations. The stark fact that these plans were being made by the police before the defendants had articulated a concrete plan, or had decided on a plan or specific targets, illustrates the irrelevance of Mr. Nuttall and Ms. Korody’s role in the mission.
[732] Between June 1 and 5, 2013, there was a series of telephone calls between Mr. Nuttall and Officer A. During these calls it became apparent that Mr. Nuttall had made no progress on his rocket plan. Despite Officer A’s instruction that no financial help would be forthcoming until there was a concrete plan in place, and a promise that all of the logistics would be taken care of if Mr. Nuttall came up with a realistic, feasible plan, Mr. Nuttall was still not able to put together a plan for the rocket mission or any other scheme.
[733] It was in the context of Officer A’s insistence that Mr. Nuttall craft a feasible plan that he again sought spiritual guidance. Mr. Nuttall wanted Officer A to tell him whether being saved by the Prophet when he dreamed that the Coho ferry sank was a sign that he was going to die soon. Without knowing if the advice was accurate, Officer A told Mr. Nuttall that it was really lucky if the Prophet had saved his life, which is what the mujahideen believe and discuss on the Al Ansar website. In my view, Officer A effectively encouraged Mr. Nuttall to pursue a mission rather than abort any plan due to the prospect of his own death.
[734] Having been directed by Officer A to craft a feasible, realistic plan, and armed with Officer A’s spiritual guidance, on June 6, 2013, Mr. Nuttall presented him with a hand drawn diagram of a rocket and a pressure cooker device that had been copied from Inspire Magazine. Prior to this date, Mr. Nuttall had refused to use the Internet at his home to research jihadist plans because he was afraid of detection. Officer A had instructed Mr. Nuttall about Tor anonymity software to solve this problem. Shortly after the Boston bombing in mid-April 2013, Mr. Nuttall commented that the pressure cooker devices used by the Boston bombers was a good, simple plan. However, he had made no further reference to pressure cookers until the meeting on June 6th. He presented the pressure cooker diagram to Officer A as a means of testing his ability to make an explosive device in preparation for building the rockets. They were for a tester and “not the real thing.” At no time did Mr. Nuttall refer to the pressure cookers as his plan for jihad. He never brought up the subject of pressure cookers after this meeting and consistently returned to the other schemes.
[735] It was the RCMP who decided that the pressure cooker devices were a viable, feasible plan for Mr. Nuttall. They set about to convince him and Ms. Korody that this was the only plan that could possibly succeed and to discourage them from considering any other plan. It was the undercover operators who raised the subject of the pressure cookers in the Kelowna scenarios at the direction of the investigative team. During this four-day interaction in Kelowna, the defendants were told that the pressure cooker plan was a good plan; it was viable and realistic and Officer A’s terrorist group would finance the plan and take care of all the logistics. Further, Officer A and Officer C were both extremely critical of the rocket plan; they said it was not realistic or feasible and very risky. Their organization would not finance that plan or be involved in it.
[736] Despite the efforts of the undercover officers to convince Mr. Nuttall to adopt the pressure cooker plan, he held on to the rocket plan and his other ideas. While the defendants briefly brainstormed how a pressure cooker plan might be set up, they continued to return to the rocket plan as the idea they wanted to pursue. Notably this brainstorming only happened when Officer A was with the defendants in their hotel room. Moreover, this short-lived flurry of active thinking about the pressure cooker plan occurred after Officer A’s angry confrontation with Mr. Nuttall about his lack of focus and waste of time and money while in Kelowna. It was during this private meeting with Mr. Nuttall that Officer A praised the pressure cooker plan and discouraged the rocket plan and the other schemes as unrealistic and unattainable.
[737] Convincing the defendants to adopt the pressure cooker plan was not the only stumbling block for the police. Mr. Nuttall had demonstrated an inability to accomplish any type of planning because of his lack of focus. He could talk endlessly but never took any steps towards achieving his objectives. Officer A tried to shame the defendants into focusing on their jihadist plans by chastising them about the waste of time and money that occurred during the Kelowna trip; however, even after this confrontation they spent almost all of their time in Kelowna playing online video games.
[738] During the trip home from Kelowna Officer A resorted to another confrontation tactic; he told the defendants that they had been disrespectful of Officer C and the other members of the organization because they had not trusted the secure internet connection set up specifically for them. Further, Officer A instructed the defendants to emulate Officer C who did what he was told without questioning his orders and he did it quickly and effectively. Lastly, Officer A told the defendants that they had essentially stolen money from the mujahideen because they had done nothing to further their plans for jihad while in Kelowna. At the same time, Officer A essentially ridiculed Mr. Nuttall’s rocket plan and said that the only plan he and Officer C would support was the pressure cooker plan.
[739] Not only did Officer A’s conduct make the defendants more fearful of their leader, but Mr. Nuttall finally got the message that he had to abandon his own plans in favour of the one that Officer A wanted to do – the pressure cooker plan. At one point on the drive home the defendants were left alone and their demeanour and conversation clearly showed the negative impact of Officer A’s behaviour on their free will and ability to make choices regarding a mission to do jihad. With an extremely downcast demeanour and tone of voice, Mr. Nuttall explained to Ms. Korody that they had taken money out of the mouths of the mujahideen and, as a result, their rocket plan had to be put aside in favour of Officer A’s plan that they build pressure cooker devices, “Not [as] a test but the real thing”. As illustrated in the subsequent interview with Officer D, even after Mr. Nuttall had constructed his portion of the pressure cooker devices, he continued to express the belief that this was Officer A’s plan and his plan remained the rockets. Despite Mr. Nuttall’s realization that the pressure cooker plan was the one he must now focus on, during the remainder of the drive home he continued to talk about carrying out his rocket plan.
[740] As outlined above, many of the scenarios, including the Kelowna trip, contemplated an instruction to the defendants that they had a choice of whether to continue with any plan and that Officer A would still be their friend if they chose to abandon the mission. However, these statements by Officer A were always preceded by long discussions that propelled Mr. Nuttall towards a plan to commit violent jihad. Often these statements appeared to be gratuitous afterthoughts in light of the previous scenarios that had built up in the defendants’ minds a belief that Officer A was a part of a large and sophisticated terrorist organization that would think nothing of getting rid of anyone who they felt was a liability. The fact that Officer C had directly stated that he and his associates were mujahideen added more weight to Mr. Nuttall’s conclusion that he was dealing with Al Qaeda.
[741] While Mr. Nuttall and Ms. Korody professed their desire to continue with a mission to do jihad after Officer A gave them the standard “out”, privately they told each other that they must continue and could not “fuck up” or they would be killed. Sgt. Kalkat testified that the investigative team concluded Mr. Nuttall’s reference to being “deleted” if they did not come up with a plan was related to a loss of Officer A’s financial or logistical support, but the police had little evidence to support this conclusion and they took no steps to address the possibility that the defendants feared they would in fact be killed if they failed to please Officer A. Moreover, confirmation that the defendants had expressed a fear of being killed came during their stay at the Sundance Motel, and in Victoria just before the planting of the pressure cooker devices, when they both used more pointed language. Recall, for example, Mr. Nuttall’s caution to Ms. Korody at the Sundance Motel that if they became a liability, they were expendable and would be “dropped into the ocean with cement galoshes on”. In Victoria when they were alone together the evening before the final event, the defendants expressed the belief that they had to go through with the plan or be killed.
[742] Further, I accept the defence submission that the standard “outs” would have had little impact on the defendants’ decision to continue with the mission because these opportunities to back out did not address their religious motivations. Having instructed the defendants that whatever they believed was right was the will of Allah, and regardless of their personal feelings, it is Allah who decides their fate, what choice did they now have to act against His wishes?
[743] Having finally, and with great effort, refocused Mr. Nuttall on a terrorist plot that the police believed Mr. Nuttall might be able to accomplish, Officer A and the other undercover officers, as directed by the investigative team, began to eliminate every obstacle raised by the defendants to the completion of a pressure cooker mission. They wanted firearms and weapons training before going ahead with the mission. Officer A promised both but in the end he decided there would be no firearms or training, and the defendants went along with this instruction. Mr. Nuttall wanted instruction in regard to the preparation of explosives; he was going to learn how to make black powder from manure. Officer A promised that his organization would provide the defendants with C4 to use in the pressure cooker devices. It took Mr. Nuttall considerable time to understand that he did not have to learn about explosives because he was getting C4 from this terrorist organization, but he remained concerned about his lack of knowledge so Officer A instructed Mr. Nuttall about C4 and its properties. Mr. Nuttall did not know how to make a detonator so Officer C offered to supply remote detonators and Officer A assured Mr. Nuttall that detonators would not present a problem. Later, while shopping for the bomb parts, Officer A had to give Mr. Nuttall detailed instructions on how to make a timer from an alarm clock. The defendants did not have a place to construct the devices and so Officer A promised to find them a remote and quiet location. The defendants had no ability to transport themselves and the pressure cooker devices to their targets. Officer A promised that he would provide any necessary transportation, as well as a safe house for their stay on the Island and after the mission.
[744] After the Kelowna scenario the investigative team directed Officer A to meet with the defendants and get them to commit to a timeline for the pressure cooker plan. Mr. Nuttall had previously expressed a desire to carry out his jihadist plans quickly because Ms. Korody’s cancer had returned and she wanted to die a martyr. However, Mr. Nuttall’s behaviour did not demonstrate any hurry to carry out a jihadist mission. Both privately and in conversations with Officer A, the defendants expressed concern that they were being rushed into the pressure cooker plan.
[745] The RCMP had several operational reasons for wanting the plan to be executed before Ramadan in mid-July 2013. Officer A would be on leave and the investigative team would have to replace him with another officer who would need more time to build a strong relationship with the defendants. Moreover, as outlined above, the RCMP had already designated July 1st as arrest day and had put in place the necessary arrangements for charges. Sgt. Kalkat had also assured the senior officers in Vancouver and Ottawa that the likely end date for the project was July 1st. As a consequence, Officer A used his considerable influence over the defendants to manipulate them into agreeing to July 1, 2013, as the date for the mission.
[746] At their meeting on June 25, 2013, Officer A pressured the defendants to come up with a date for the explosion. He cornered them into a date before Ramadan by saying that he was going away for this holiday and did not know if he would be coming back to Canada after Ramadan. Mr. Nuttall thought Canada Day was June 1st, which would mean they had another year to plan. He was fine with this delay. When Ms. Korody reminded him that Canada Day was on July 1st, he felt this was too rushed and wanted to wait until the next year. In response to the defendants’ reluctance to commit to July 1st, Officer A manipulated the defendants into concluding that the devices would have to be planted on Canada Day 2013, by instructing them that there would be no support from Officer A and his terrorist organization if they selected some other future date. Although the defendants had referred to Canada Day as a possible target date earlier in the operation, it was clear that they believed this was far too soon as of June 25th. In reality, it was the RCMP who had chosen Canada Day long before the defendants had agreed to a plan.
[747] Officer A also used this meeting as another opportunity to eliminate the obstacles that Mr. Nuttall continued to articulate. In particular, Officer A said that he would take care of the explosives and the guns; he would drive them around to shop for anything they required to build the bombs; he would give them the tools they needed; he had already found them a place where they could construct the devices; he would take them to Victoria a day prior to locate targets and transport them to the location where they would place the bombs. He would also provide them with a safe place to test their bombs. In addition, Officer A said he would do whatever he could to ensure that the defendants stayed alive after they planted the bombs. It was not going to be a suicide mission.
[748] With the date fixed and the plan identified, the police had set the stage for the defendants to finally take a positive step towards accomplishing a terrorist plan. The sole impediment that the police decided they should not eliminate (for fear that they might be committing the offence of facilitating a terrorist act) was the money needed to buy the components required to construct the pressure cooker devices. The defendants lived on social assistance and had no other source of income, but the RCMP insisted that they use their own resources, including a large part of their rent money, to buy the tools and other items necessary to construct the pressure cooker devices. However, the police did everything that was necessary to make it possible for them to buy the parts and construct the devices.
[749] The police decided that the defendants could not be left to their own resources when it came to shopping for the bomb parts and tools. The defendants had no vehicle or driver’s licences and using public transportation for this purpose was not feasible. There were large things to purchase and shopping by bus would have required numerous trips. It was highly unlikely that Mr. Nuttall could remain focused on such a task for any lengthy period given his past behaviour during the operation. Moreover, Mr. Nuttall needed constant direction, reminders and prodding from Officer A to ensure that the required items were purchased. Thus the police had to provide a car and a driver to make it possible for the defendants to buy what they needed to build the pressure cooker devices. Even with substantial help from Officer A, the three days of shopping were chaotic and often quite ridiculous in light of Mr. Nuttall’s ineptitude. Ms. Korody played almost no role in the purchasing of the pressure cooker parts; she was either sick or sleeping during the shopping trip.
[750] The police also had to get the defendants away from the distractions of their home to make it possible for them to focus on the pressure cooker devices. They knew from the Part VI intercept and the Kelowna scenarios that the defendants spent most of their time playing online video games and needed to be out of their element to focus on building the pressure cooker devices. To this end, the police rented a motel suite for the defendants and transported them to the Sundance Motel each day at the end of the shopping. In addition, the police purchased meals and cigarettes for the defendants to ensure they focused on their task and did not leave the motel room. To ensure the defendants remained isolated from friends and family during this period Officer A discouraged any outside contact. The influence that he exerted over the defendants made it easy to manipulate them into accepting his directions about having no contact with friends. The defendants did not have the financial resources to rent their own motel room. Nor did they have any money to buy meals away from their home, or at all, after committing their welfare cheque to the pressure cooker devices.
[751] There were other obstacles that would have precluded the shopping trip and the construction of the devices at a remote location had the police not taken steps to address these issues. Ms. Korody and Mr. Nuttall were dependent upon methadone to address their heroin addiction. Without their daily delivery of methadone, the defendants would quickly become drug sick. To eliminate this obstacle, Officer A dropped Ms. Korody off at their suite each morning to wait for her methadone delivery and then picked her up after it had arrived. Officer A was also required to take Ms. Korody to her doctor’s office to get a renewal of her methadone prescription in order to ensure that the defendants did not go into physical withdrawal during the shopping trip and while staying in Victoria. Officer A drove Mr. Nuttall back to his residence so that he could pay a portion of their rent, which he felt was necessary to ensure that if he died during the mission he would not go to “the hell fires” because of unpaid debts. Officer A also promised to take care of the defendants when they became drug sick after the operation was completed and before they could return to their home to obtain more methadone.
[752] Prior to their departure for Victoria Officer A made promises to the defendants that not only eliminated obstacles to the completion of the mission that the defendants raised, but also acted as inducements to continue with the plan. Officer A instructed the defendants that his organization had made elaborate plans for their safe passage out of Canada should they be in danger of capture by the police. The plan included securing fake passports and travel by private plane to an undisclosed destination outside of Canada. The defendants believed they were going to be taken to a Muslim country. They became very excited at the prospect of leaving Canada and taking up residence in the Middle East. Ms. Korody desperately wanted to be free of her dependence on methadone and heroin and she believed that this was possible in the Middle East where these kinds of drugs were not available. Mr. Nuttall dreamed of travelling to the Middle East to join a jihadist organization. Officer A did not identify where they would be taken but the defendants assumed it was a Muslim country.
[753] Although Sgt. Kalkat testified that this contingency plan was designed to ensure the defendants did not think of the plan as a suicide mission, it nevertheless was a strong incentive for the defendants to complete the mission. Moreover, the fact that Officer A’s terrorist organization had the ability to secure passports on short notice, and the resources to charter a plane, underlined the power of the group that the defendants were now tied up with. The defendants’ private communications reflected their belief that only Al Qaeda had the resources to create this kind of escape plan.
[754] Further, I accept Dr. Safi’s opinion that Officer A used spiritual guidance to eliminate obstacles in the way of any plan to commit violent jihad that the defendants raised themselves. On May 22, 2013, Mr. Nuttall disclosed that he owed about $1,000 in debts to various people and he knew that it was prohibited by the faith to go for jihad before all one’s debts are paid. In response, Officer A said that someone else could pay Mr. Nuttall’s debts and thus their existence was not an obstacle. Officer A also agreed to become Ms. Korody’s guardian or wali when they were formally married in a Muslim ceremony. The defendants were thrilled that Officer A felt he was such an intimate friend that he could make this promise. This promise is significant because the defendants understood that formal religious sanction of their marriage was necessary before they could live in a Muslim country.
[755] In the end the defendants did carry out part of the plan for the pressure cookers before they left for Victoria. Mr. Nuttall constructed timers out of alarm clocks and glued nails to the inside of the pressure cookers. Ms. Korody researched possible targets on the Internet and helped to sanitize the motel room. In Victoria, the defendants selected the specific bushes at the Parliament buildings that would be used to plant the devices and both defendants placed the devices in those bushes. However, the RCMP’s role in the terrorist plot was far more extensive in comparison to the roles played by the defendants. The defendants were the foot soldiers but Officer A was the leader of the group; he made all of the arrangements and gave the defendants instructions and directions at every stage of the operation. Without the police, it would have been impossible for the defendants to carry out the pressure cooker plan.
[756] The RCMP provided the explosive substance for the devices. They took possession of the devices and filled them with a small amount of actual C4 and padded the balance of the space with fake C4. It was Officer A who dictated that the defendants would use C4 and how much they would put in each pressure cooker. He instructed the defendants on the properties of C4 when they had no knowledge of this explosive. The defendants did not have the money required to purchase C4 and had never demonstrated the capacity to make their own explosives or obtain a substitute for C4. There is no evidence that the defendants took any steps to acquire explosives or make it themselves beyond talking about using manure to make black powder. When asked what they would have used for the explosive if Officer A had not supplied the C4, neither defendant had a realistic plan. Ms. Korody told Officer D that she would buy bullets and break them open to get the gun powder. Had she managed to secure identification to purchase bullets, and figure out how to cut them in half, it would have taken years to accumulate enough black powder for a pressure cooker device. In my view, the defendants lacked the capacity to obtain their own explosives and were entirely dependent upon the RCMP for this part of the plan.
[757] The RCMP constructed the devices by attaching inactive detonators to the fake C4. Although the police tested the alarm clocks Mr. Nuttall used to make timers with the LED light, they were incapable of detonating C4, which cannot be detonated by an electric charge. The police attached their own fake detonators. Moreover, the police had to fix up one of Mr. Nuttall’s timers because it was not complete when received by the explosives unit. It was also Officer A who determined when the detonators would be set to go off. He instructed the defendants when they were going to plant the devices; and that they would plant the devices and be off the Island before the explosion occurred.
[758] Once the RCMP completed the devices they transported them to Victoria for the defendants. The defendants were not required to figure out how they could get the explosive devices to Victoria or how to ensure their own safety during the transfer. The RCMP also arranged for a van to transport the devices to a secluded parking lot where Officer A and the defendants would pick them up in readiness for planting. It was the RCMP that supplied the bags to carry the devices because the defendants either forgot about this matter or had no funds left to purchase these items.
[759] The RCMP arranged for Officer A to drive the defendants to the ferry terminal and to take the ferry to Sidney in preparation for planting the devices. The RCMP paid for the ferry and the defendants were not asked to contribute to the cost. The RCMP transferred the defendants to their hotel in Sidney and arranged for and paid the cost of this accommodation. The defendants did not have the financial resources to travel by ferry to Vancouver Island. The defendants did not have access to a vehicle or driver’s licences. The defendants could only have travelled by local bus because Ms. Korody did not have identification and, after purchasing the pressure cooker parts, they had no money left. The defendants did not have the money to pay for a hotel room or meals away from home.
[760] Officer A continued to lead the group after their arrival in Sidney. It was apparent that the defendants had not chosen targets or decided what they were going to do with the devices. The defendants were not sure what their purpose was; whether the explosion was to cause terror or make a political statement. Because they had not decided this issue, they could not determine their targets. Mr. Nuttall continued to ask Officer A where they should place the devices and Officer A became impatient and frustrated with him. After several minutes of rambling discussion about possible targets, Officer A took charge and directed the defendants as to precisely what was going to happen. Officer A said he did not want to drive all over Victoria or go to places more than once. He told the defendants that he needed only two places for targets, not five or six. Officer A said that he had told the brothers there would be two locations for the pressure cookers and he had to give them the addresses.
[761] Mr. Nuttall could not sustain his focus on targets and he asked Officer A if the car they were using in Sidney was “clean”. Officer A became angry with Mr. Nuttall; he said that when Mr. Nuttall said things like that it put doubt in him. Officer A told Mr. Nuttall to only think about his end of the plan and not worry about the things that Officer A was dealing with. In an angry tone of voice Officer A told Mr. Nuttall that it was the targets that he had to think about and he had to choose two places. Even Officer A recognized that the defendants were not ready to carry out a plan; he complained to the cover team that the defendants were “all over the map” regarding the plan and the targets.
[762] The RCMP solved the problem of targets by providing a vehicle and Officer A to lead them into Victoria and find a place for the pressure cooker devices. The defendants did not possess the resources required for another recce (or the first recce, for that matter) in Victoria. Despite Officer A’s earlier instructions about the recce, Mr. Nuttall had no idea what they were about to do so Officer A directed them by instructing they were going to do the recce and choose targets; then they would go shopping for the remaining items required for the plan; and then they would get some food and be ready to go plant the devices by 3:30 a.m. Once again, Officer A was the leader of the group who instructed his foot soldiers what was going to happen and how it was going to be done.
[763] Mr. Nuttall also required direction from Officer A in regard to possible targets. He bounced from one possible target to another and showed no common sense. When Mr. Nuttall said it would be good to target an office building, it was Officer A who had to remind him that on Canada Day there would be no one in the office building. When Mr. Nuttall complained that they were being rushed, and required two days for a recce, Officer A redirected him and asked him to think about where all the people would be on Canada Day. In response, Mr. Nuttall said downtown. Without asking him to be more specific, Officer A drove directly to the Parliament buildings and pointed out two bushes that he told the defendants would make good hiding places for the devices. This direction was obviously necessary because the defendants were reluctant to commit to a target and appeared to be having second thoughts about completing the mission that night. They believed it was all too rushed. Instead of letting the defendants direct the timing of any mission, the police used Officer A’s influence over the defendants to pressure them into agreeing to a target, a target that the defendants realized right away was acceptable to Officer A because he had pointed it out several times and called it a perfect location for the devices.
[764] Ironically, the defendants ultimately chose bushes closer to the Parliament buildings despite their knowledge that no one would be killed. They believed their message would get more sympathy if the building was damaged but no one was killed. This discussion revealed how undecided the defendants were about what they wanted to accomplish with the pressure cooker devices. Their desire not to kill anyone was also consistent with Mr. Nuttall’s original rocket plan, which would not contain a warhead, and would be designed to make only a political statement about freeing Palestine. I note that Officer A discouraged that plan by reminding Mr. Nuttall that he once condemned all taxpayers as valid targets for jihad.
[765] Finally, the influence of the undercover officers over Mr. Nuttall’s actions became quite apparent when he expressed his fear that the chosen locations for the devices would not be acceptable to “the brother” played by Officer D because too few people would be killed. After revealing these fears about the chosen targets to Officer A, Mr. Nuttall got himself deeper into trouble with the terrorist organization because he had angered Officer A. Officer A became angry and impatient with Mr. Nuttall who now wanted to change the targets. When Officer A said that Officer D would not be upset with the targets because this was Mr. Nuttall’s operation, it was clear that Mr. Nuttall did not believe that this was his plan or his operation. He wanted to blow up a truck not plant pressure cooker devices. Officer A lost his temper with Mr. Nuttall and, quite honestly in my view, exclaimed with a tone of frustration that he had planned everything and all Mr. Nuttall had to do was plant the devices.
[766] In my view, the defendants’ indecision about targets was largely due to the fact that it was not their plan but a plan chosen and carefully orchestrated by the undercover police officers involved in Project Souvenir. It is true that later on the night of June 30th, the defendants talked privately about all of the money the ‘brothers” had put into “their” plan; however, this statement has to be viewed in the context of the manipulation and control exercised by the police over their beliefs and their actions. Indeed, as late as the final shopping trip on the night of June 30th, Mr. Nuttall referred to the plan he pitched to Officer D as the one where they blew up a truck and not a plan to deposit pressure cookers in the bushes at the Parliament buildings.
[767] Even in the last stages of the operation, the police had to eliminate obstacles. After the devices were planted in the bushes, the RCMP transported the defendants back to the Lower Mainland by car and ferry. Again, the defendants did not have the money required to pay for this escape plan and bus travel would have precluded Ms. Korody’s participation in the mission.
[768] In addition to considering the proportionality between the police involvement in the offence, as compared to the defendants, Mack directs the Court to consider whether the police committed illegal acts. What the RCMP did to orchestrate the offences committed by the defendants is a very important factor in this case because Mr. Nuttall and Ms. Korody did not have the capacity to do these things. However, the role the police played in the mission is even more offensive because they violated the Criminal Code in order to accomplish their objectives and almost all of their actions were unsanctioned and beyond the scope of the s. 25.1 authorization secured by the RCMP. A more detailed discussion of the illegal acts committed by the police in the course of the operation is addressed in the abuse of process section below. In summary, I find that the police violated ss. 83.19 and 83.03 and aided and abetted the defendants as principals in the commission of offences under ss. 81(1)(d), 431.2(2) and 465(1)(c) of the Code.
[769] 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.
[770] 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.
[771] Despite the serious nature of terrorism offences, and the need for the police to adopt the persona of a terrorist to infiltrate terrorist groups, the actions of the police must be regarded as egregious in the particular circumstances of this case. Extraordinary measures were not necessary to meet exigent circumstances. There was no imminent risk of harm to the public or the need to disrupt ongoing criminal activity. The police were acutely aware that without the constant supervision and direction provided by Officer A, the defendants would be incapable of completing their part in the plan. What the police were required to do in order to carry out the terrorist offence, compared to the minor roles played by the defendants, is cogent evidence that the risk to the public was negligible. Moreover, the fact that the police went to such great lengths to eliminate the many obstacles the defendants placed in their own path to accomplishing a terrorist mission, as well as obstacles the police concluded the defendants could never overcome because of their vulnerabilities and their lack of resources, renders any risk perceived by the RCMP quite farcical.
[772] It must be emphasized that this is not a case where the RCMP learned of a pre-existing plan to carry out a terrorist plot; or that steps had been taken to formulate a terrorist plot; or that the defendants were in communication with known terrorists or terrorist organizations; or that the defendants possessed any expertise that would have been of value to a terrorist organization.
[773] When I consider all of the pressures placed upon the defendants by the RCMP during the undercover operation, as well as the multi-faceted control exercised over their actions and the beliefs they held that justified the use of violence for religious purposes, I find that the average person, with strengths and weaknesses, and with or without the vulnerabilities of the defendants, would likely have planted the pressure cooker devices to save their own lives despite the risk to others.
[774] However, even if it could be said that an average person, with strengths and weaknesses, would not have gone through with the mission, I am satisfied this is one of those cases referred to in Mack where the average person test simply does not properly address the gravamen of the police misconduct. Justice Lamer’s statements at para. 124 of Mack are worthwhile repeating here:
I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. When a court is of this view, the mere fact that the hypothetical‑person model of analysis is not appropriate does not mean the conduct does not amount to an abuse of process. Each situation will have to be considered on its own merits, and with a view to determining whether the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacture of criminal conduct. [Emphasis in original.]
[775] 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.
[776] 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.
[777] This bare summary does not capture the true nature of the police conduct because it was the day-to-day dealings with the defendants, which were recorded and videotaped, that demonstrate the absurd character of the undercover investigation. When Mr. Nuttall broke down after the failed train plan and confessed that he was not a general and could not be expected to create a workable plan, Officer A assured him that he would be taken through to the end, “one baby step at a time”. And this is what the police had to do, not for public safety, but to bring the undercover operation to a conclusion with an arrest for terrorism offences. Manipulating, cajoling, instructing, instilling fear, offering friendship, offering reward, offering religious guidance, throughout the operation, the police led the defendants to this endgame.
[778] The Crown argues that the police had no duty to de-radicalize the defendants, and their constant violent jihadist rhetoric had to be viewed as dangerous by the police. The Crown says that it was the duty of the police to continue investigating to ensure the public was not at risk. The RCMP believed that it would be impossible and impractical for Officer A, or a substitute undercover officer, to befriend the defendants indefinitely as a means of monitoring their behaviour.
[779] The answer, however, is that manufacturing a crime for the defendants to commit was not their only option. Sgt. Kalkat shut down any efforts to investigate an exit strategy. Although Insp. Corcoran knew that the RCMP could properly pass the file back to CSIS if he was satisfied there was little risk of criminal activity in the foreseeable future, no thought was given to this option. There was also little thought given to obtaining a peace bond pursuant to s. 83.3 of the Code, even though the Attorney General consented to this application.
[780] The police were faced with a difficult situation because they had created expectations in the defendants’ minds about accomplishing a terrorist mission. Before Officer A was introduced into their lives, “they were all talk”. Nevertheless, there was no imminent risk to the public that warranted the actions of the police in this case. It is not the role of the Court to instruct the police on which option they should have chosen. It is enough to conclude that, in the particular circumstances of this case, the manufacture of the crime by the police amounted to entrapment.
[781] 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.
[782] I have discussed the test for a stay of proceedings for abuse of process under the residual category above. In brief, there must be prejudice to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; and, no alternative remedy capable of redressing the prejudice.
[783] The case for a stay of proceedings based on an abuse of process consists of three prongs: (1) the overall conduct of the police that resulted in the manufacture of a crime to justify the arrest of the defendants and put an end to the investigation; (2) the illegal acts committed by the police during the undercover operation; and (3) interference with the defendants’ right to freedom of religion guaranteed by s. 2(a) of the Charter.
[784] It is the entire context of the undercover operation, as set out above, which must be examined to determine whether this is one of those rare cases in which a stay of proceedings is warranted to ensure the justice system is not brought into disrepute by the continued prosecution of the defendants.
[785] The conduct of the police has been described in detail in the discussion of entrapment and will not be repeated here. The factors that led to my conclusion that the defendants were entrapped equally lead me to conclude the police actions, taken as a whole, amounted to an abuse of process. I find that what the police did was precisely what was proscribed by Karakatsanis J. in Hart at (para. 209):
The state must conduct its law enforcement operations in a manner that is consonant with the community’s underlying sense of fair play and decency. It cannot manipulate suspects’ lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants.
[786] The Court must examine not only the actions of the police but their subjective intentions, including the presence or absence of good faith. Further, it is the subjective impact of the police conduct on the defendants, in light of the defendants’ personalities and frailties, which must be considered. In my view, the police unfairly, unnecessarily and disproportionately manipulated the defendants to achieve the desired result.
[787] During the four-month undercover operation the defendants demonstrated that they lacked focus and sufficient motivation to take their jihadist beliefs any further than mere talk and bravado. The defendants also demonstrated that they lacked the skills, the expertise and the financial resources to formulate and carry out a realistic terrorist plan. There was no evidence that the defendants were connected to any third party, apart from the undercover officers, who was prepared to participate in a plan with them or had the skills and expertise necessary to craft or carry out a terrorist plan. The investigative team consistently reported to senior officers that there was no imminent danger to the public. The police never uncovered ongoing preparations in support of a plan that had to be disrupted.
[788] The police became frustrated with the slow progress of the operation due to the defendants’ lack of motivation, and manufactured a crime for the defendants to commit. It is not an abuse of process for the police to make repeated and even persistent and importuning offers to commit an offence. However, when the police manipulate marginalized persons and exploit their vulnerabilities on several levels in order to push them into doing criminal acts that they would be incapable of doing without overwhelming assistance from the police, their conduct is an abuse of process. The defendants expressed a desire to commit an act of terrorism to redress wrongs against Muslims and they were convicted by the jury of terrorism offences. However, it was the police who motivated them to act on these beliefs and made them capable of playing a small role in the execution of a terrorist plot.
[789] I acknowledge that in the appropriate circumstances the police may be required to take extraordinary measures to engage a target in criminal actions. Sophisticated criminal minds must be met with equally creative police work. But here the police were not dealing with sophisticated criminals who were difficult to infiltrate and investigate for criminal activity.
[790] I also acknowledge that terrorism is a relatively unknown area for criminal investigators and that research into radicalization is in its infancy. As Dr. Safi testified, there is no terrorist profile that can accurately predict who will act out on their beliefs about violence and who will not. Sgt. Kalkat testified that having many plans does not suggest a person will never act on their beliefs because some terrorists have lots of plans and eventually focus on one. He testified that terrorists do not always act in concert with others and that the “lone wolf” is more dangerous because they are unpredictable and do not require a complicated scheme before they attack. As a consequence, Sgt. Kalkat opined that the police must take extraordinary steps in all terrorist cases to protect the public from harm. While I agree that the duty to safeguard the public is paramount, the police cannot rely on theories about terrorism as a substitute for evidence that a particular target is involved in terrorist activities and thus poses a real threat to the public.
[791] As discussed above, there were other investigative techniques that the police could have used to safeguard the public from any risk posed by the defendants’ jihadist beliefs. There was no need to act quickly based on evidence that the defendants had gone further than merely talk about their desire to avenge the harm caused to Muslims by the infidels. By June 16th, the police had a Part VI wiretap in place and could have listened to the defendants’ private conversations to gather evidence of any planning towards a terrorist plot. Because the defendants spent almost all of their time at home, the wiretap would effectively capture most of their private communications. Further, because the defendants remained within a four-block radius of their home, the RCMP could have maintained its surveillance or used a tracking warrant to monitor their whereabouts. The DNR could have been renewed to monitor the defendants’ outside contacts and efforts could have been made to expand the wiretap to include their internet communications. In my view, there were no public safety concerns that required the police to act precipitously in the manner that they did to induce the pressure cooker plan and then take on a vastly disproportionate role in its execution based on any demonstrated risk that the defendants could have carried out this plan on their own or that they were sufficiently motivated to do so.
[792] 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.
[793] Turning to the illegal acts argued by the defence, it is common ground that the s. 25.1 authorization obtained by the RCMP applied only to Officer A and Cpl. Matheson and was limited to an offence under s. 81(1)(b)(ii), which relates to the delivery or transfer of an explosive substance. The authorization was deemed necessary because real C4 was to be used in the pressure cooker devices. Apart from this authorization, there was no exemption for other offences committed by the police.
[794] The defence argues that in doing certain things that were necessary to ensure the defendants carried out the offence the RCMP violated several sections of the Code, specifically ss. 83.19, 83.03, 83.21 and aiding and abetting in the commission of an offence under s. 81(1)(d), s. 431.2(2) and s. 465(1)(c). The Crown responds that because the police acted without criminal intent, the support they provided to the defendants did not violate any of these sections. I will address each Code section raised by the defence.
[795] Facilitation is defined in s. 83.19, which provides as follows:
83.19 (1) Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
(2) For the purposes of this Part, a terrorist activity is facilitated whether or not
(a) the facilitator knows that a particular terrorist activity is facilitated;
(b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or
(c) any terrorist activity was actually carried out.
[796] This offence has the following essential elements:
1. That there was a “terrorist activity” [as defined in s. 83.01(1) of the Code] whether or not the terrorist activity was actually carried out;
2. That the accused knew that the activity was in a general way a terrorist activity;
3. That the accused “facilitated” the terrorist activity whether or not this terrorist activity was foreseen or planned at the time they facilitated it; and
4. That the accused knew that he or she was facilitating this terrorist activity and intended to do so, whether or not they knew the specific nature or the details of the terrorist activity.
[797] In R. v. Nuttall, 2015 BCSC 943, I concluded that “facilitation” meant the act of making it easier, or helping another, to commit a terrorist activity (at para. 79):
The Code does not define “facilitate” or “facilitation”. While not addressing s. 83.19, the Ontario Court of Appeal in R. v. Lindsay, 2009 ONCA 532, dealt with the constitutional validity of the organized crime provisions of the Code and the definition of facilitation in s. 467.1(1), … MacPherson J.A. said that the term “facilitation” was commonly understood in ordinary language and in a legal context, and agreed with the trial judge’s definition:
[23] Second, the word "facilitation" and the phrase "in association with" are common and well-understood, both in ordinary parlance and in a legal context. This was a central point in the trial judge's ruling on the constitutional issue. … she wrote, at paras. 58 and 59:
The word "facilitate" also has a clear meaning. It is defined in The Concise Oxford Dictionary (10th ed.) to mean, "make easy or easier". Black's Law Dictionary (7th ed.) indicates that the word "facilitation" has a recognized meaning in the context of criminal law, as follows: "The act or an instance of aiding or helping; esp., in criminal law, the act of making it easier for another person to commit a crime";…
[798] The terrorist activity in this case was the placing of explosive devices on the grounds of the Parliament buildings in Victoria with the intent to cause death and structural damage. The RCMP officers involved in Project Souvenir were not only generally aware of the plan, they were intimately familiar with every aspect of this plan because they had orchestrated it.
[799] Further, the actions of the RCMP in providing the explosive substance (C4), tools, transportation, hotel accommodation, a location for the construction of the pressure cooker devices, advice in regard to the construction of the timers and the purchase of parts for the devices; as well as money for food and restaurant meals, made the commission of this terrorist activity by the defendants easier to accomplish. Indeed, these acts of assistance were critical to carrying out the terrorist activity.
[800] The Crown argues that the Supreme Court of Canada’s judgment in Khawaja sets a de minimis standard for all terrorism offences; that is, the risk of harm must go beyond this standard to prove the actus reus of the offence. While McLachlin C.J. held that the actus reus of s. 83.18 does not capture conduct that discloses a negligible risk of enhancing the ability of a terrorist group to carry out a terrorist activity (Khawaja at para. 50), the assistance provided by the police in this case goes well beyond negligible.
[801] The mens rea required to prove the offence of facilitation of a terrorist activity is limited to “knowingly” acting in a manner that constitutes facilitation. The underlying intention of this offence is to stop persons from providing assistance to terrorist groups regardless of their motivation. The gravamen of the offence is knowingly doing something to enable or make easier a terrorist activity, and the reason someone chooses to do this is irrelevant.
[802] Facilitation of a terrorist activity does not require proof of a specific purpose or motive and can be distinguished from s. 83.18, the offence of participation in a terrorist activity. To constitute an offence under s. 83.18, the participant must commit acts for “the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity”. The offence described in s. 83.19 is committed when the offender knows that his or her actions are making it easier or helping to bring about a terrorist activity. It is therefore not essential to prove that the police intended that the defendants carry out a terrorist activity, provided the RCMP knew that this was generally the intention of the defendants.
[803] Indeed, the police did not need to know about the specific plan contemplated to commit the offence of facilitation because they were generally aware that the defendants were talking about terrorist plots. In this regard, s. 83.19(2) of the Code provides that it is irrelevant that at the time the money and other items are provided to the defendants, there may have been no specific terrorist activity planned. The same subsection also provides that it is irrelevant that no terrorist activity was actually carried out. Thus, the inert nature of the pressure cooker devices is not a defence. Moreover, it is irrelevant that the monies given to the defendants for such things as groceries and cigarettes were not directly used to buy the pressure cookers. Indirect benefit, by freeing up the defendants’ welfare monies for this purpose, is sufficient to constitute facilitation because it was given to the defendants at a time when the police were aware of their jihadist plans.
[804] The RCMP was aware of the defendants’ desire to commit terrorist activities. Mr. Nuttall had long conversations with Officer A during which he discussed his ideas about violent jihad and his underlying motives. Thus, knowing the actions contemplated by the defendants and their motives, which were proscribed by the definition of terrorist activity in the Code, I find that the RCMP knowingly facilitated a terrorist activity by providing money and other services to the defendants that helped and made easier the terrorist activity.
[805] An even more indirect form of facilitation is proscribed by s. 83.03:
83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services
(a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or
(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group,
is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
[806] Again, unlike s. 83.18, there is no requirement to prove that the offender committed the acts for “the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity”. The offence is complete when the offender knows that the money or property will be used to facilitate or make easier a terrorist activity or simply that it will benefit a terrorist group. At trial, the Crown alleged that the defendants constituted a terrorist group within the meaning of the Code, and the jury convicted them of the greater offences. Thus, the only available inference is that the jury came to this conclusion beyond a reasonable doubt. Consequently, provision of money, services and C4 by the police, in the circumstances of this case, constituted an offence under s. 83.03.
[807] The defence also argues that the investigative team, by instructing the undercover officers and others to provide services, items and money to the defendants, who to their knowledge were acting for the benefit of themselves as a terrorist group, violated s. 83.21(1) of the Code:
83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life.
(2) An offence may be committed under subsection (1) whether or not
(a) the activity that the accused instructs to be carried out is actually carried out;
(b) the accused instructs a particular person to carry out the activity referred to in paragraph (a);
(c) the accused knows the identity of the person whom the accused instructs to carry out the activity referred to in paragraph (a);
(d) the person whom the accused instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried out for the benefit of, at the direction of or in association with a terrorist group;
(e) a terrorist group actually facilitates or carries out a terrorist activity;
(f) the activity referred to in paragraph (a) actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
(g) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
[808] Section 83.21 is distinguishable from the offence of facilitation described in s. 83.19 of the Code because it contains a heightened mens rea in the form of a specific motivation; that is, “for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity.” In Khawaja, McLachlin C.J. addressed the meaning of this heightened mens rea in reference to s. 83.18. She concluded that it was intended to exempt persons who had valid reasons for acts that otherwise would be characterized as participating or contributing to a terrorist activity (at para. 47). Further, to possess the subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity, “the accused must specifically intend his actions to have this general effect” (at para. 46).
[809] Although a less charitable view of the intentions of the police would support a conclusion that they acted for the purpose of enhancing the defendants’ ability to carry out a terrorist activity in order to justify their arrest under the terrorism provisions of the Code, on balance I find they were motivated by a desire to carry out their duties as police officers. To conclude otherwise would mean the police acted in bad faith and for an improper purpose and the defence have not argued mala fides on the part of the police. As a consequence, I find the police lacked the subjective motivation required for their conduct to constitute an offence under s. 83.21.
[810] Finally, the defence argues that the police aided and abetted the defendants in the commission of an offence under s. 81(1)(d): making or having in their possession an explosive substance with intent, for the benefit of, in association with, or at the direction of a terrorist group contrary to s. 83.2. All of the elements of this offence were proven beyond a reasonable doubt as the jury convicted the defendants on this count in the Indictment. The defence make the same argument regarding ss. 465(1)(c) and 431.2(2), conspiracy to murder persons unknown and conspiring to place an explosive device on or against the grounds of the Legislature as a place of public use, for the benefit of, in association with, or at the direction of a terrorist group.
[811] As set out in Briscoe (at para. 14), the actus reus of aiding and abetting is doing, or omitting to do, something that assists or encourages the perpetrator to commit the offence. That element is met by the conduct of the police in this case. In this regard, the police provided assistance to the defendants in carrying out the offences and they actively encouraged, instigated, promoted and counselled the defendants to commit the offences.
[812] The mens rea for aiding and abetting, as again described in Briscoe (at paras. 16-17), has two components. The first is intent to assist the principal in the commission of the offence. The second is knowledge that the principal intends to commit the offence, though not necessarily how precisely it will be committed. The aider or abettor is not required to share the intention or mens rea of the principal offender. Justice Charron described the knowledge component further (at para. 18):
… The perpetrator’s intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed. [Emphasis in original.]
[813] To commit the greater offence of acting for the benefit of, or in association with, a terrorist group the principal offender must have this subjective motive. However, it is no defence to a person charged with aiding or abetting that he did not share the same mens rea, including the subjective motive of the principal. The police knew that it was the defendants’ intention to make use of an explosive device to cause death and property destruction on the grounds of the Legislature. The police also acted intentionally to assist the defendants to carry out these offences. The fact the police acted in the course of their duties and thus had socially acceptable motives is not relevant to intention. In my view, there is no difference between the police conduct in this case and the illegal trafficking committed by the undercover officers in Campbell. In this regard, the comments of Binnie J. at para. 25 are instructive:
The conclusion that the RCMP acted in a manner facially prohibited by the Act is inescapable. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence: see Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831. The actus reus of the offence of trafficking is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out: see R. v. Mancuso (1989), 51 C.C.C. (3d) 380 (Que. C.A.), at p. 390, leave to appeal refused, [1990] 2 S.C.R. viii. There is no need to prove both the intent to make the offer to sell and the intent to carry out the offer: see R. v. Mamchur, [1978] 4 W.W.R. 481 (Sask. C.A.). See also, e.g., R. v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.C.A.), at p. 208, upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercover police officer, with a view to “rip off” the officer and not complete the sale. Sherman was later followed on this point in Mancuso, supra, at pp. 389-90, where the accused argued unsuccessfully that he did not intend actually to sell narcotics to a police informer, but really wished to steal his money.
[814] The law does not accord the police a general justification defence for engaging in criminal acts, even where they go undercover to investigate illegal activities. The RCMP recognized the need to obtain an authorization under s. 25.1 of the Code when they decided to use real C4. They gravely misjudged the extent to which they would require further authorizations under this provision in order to carry out the undercover operation in the manner directed by the investigative team.
[815] Not every criminal act in the course of a police investigation necessarily results in a finding that there has been an abuse of process. Illegal acts by the police are only a factor, albeit an important factor, to be considered in the determination of whether an abuse of process has taken place: Campbell at para. 42. It is the circumstances surrounding the conduct of the police and the possible justifications for their conduct that inform the Court’s decision.
[816] Project Souvenir was approved by senior officers at RCMP Headquarters in Ottawa. Based on the C237 reports submitted by Sgt. Kalkat, permission to carry out an undercover investigation of the defendants’ criminal activities was granted on certain conditions. One of those conditions was an obligation to give careful consideration to the need for authorizations under s. 25.1 of the Code. The offence of facilitation of a terrorist activity was specifically referenced in Sgt. Larkin’s report, which was submitted by RCMP Headquarters Undercover Shop in support of the extension of Project Souvenir.
[817] During the course of the operation the investigative team and the undercover shop locked heads over the question of whether supplying the defendants with money for jobs constituted facilitation. Sgt. Kalkat did not appear to give serious consideration to the concerns expressed by the undercover shop until well into the operation. He ultimately sought legal advice on this narrow point and stopped pressing for scenarios that offered more paying jobs to Mr. Nuttall; however, he continued to support the provision of services and other items such as money for groceries and cigarettes.
[818] The concerns about criminal conduct went further than money for jobs. On several occasions the undercover shop raised concerns that any help the police gave the defendants to carry out a terrorist plot would constitute facilitation of a terrorist activity. Sgt. Kalkat also did some research of his own about entrapment and noted up several references from various case authorities; however, he did not research facilitation and essentially ignored the concerns expressed by the undercover shop. Supt. Bond testified that he was cognizant of the need for Mr. Nuttall to act on his own without help from the police and Sgt. Kalkat also appeared to acknowledge this was necessary due to the legal advice he had received from Ms. Devlin, Q.C. Nevertheless, no one within the RCMP organization considered the question of whether the many, many things the police took care of for the defendants that aided them to commit terrorist activities should be sanctioned by an authorization under s. 25.1.
[819] In my view, the police essentially treated this undercover operation like a traditional Mr. Big investigation. They refrained from making direct threats against the defendants and did not simulate violence directly against third parties; however, the police set up the “sting” in the same manner as a traditional Mr. Big investigation by creating an elaborate ruse that convinced the defendants that they were working with a large-scale terrorist group. They paid for the hotels, living expenses and meals; they made all of the arrangements necessary for the commission of the offence; and they actively encouraged and directed the defendants until they had committed the offence. These actions by the police would not be regarded as criminal if the offence under investigation had already taken place and the police were attempting to obtain a confession. On the other hand, where the object of the investigation is to facilitate the offence, albeit in a controlled manner, the police cannot break the law with impunity unless they have an authorization to do so under s. 25.1.
[820] It is no excuse to say that the investigative team lacked experience and would thus be unaware of the concern about illegal acts committed in the course of the investigation. This project was a national priority for RCMP Headquarters and was watched carefully by very senior officers. Locally there were several senior officers in charge of the operation and each one had many years of experience in undercover investigations. Supt. Bond and Insp. Corcoran had many years of experience in national security matters. Moreover, the officers in the undercover shop raised the issue of facilitation during the briefings with the investigative team.
[821] There is no evidence that the police acted in bad faith. They sought some legal advice and generally followed it. However, the manner in which Sgt. Kalkat directed Project Souvenir was both dictatorial and designed to eliminate dissenting views. Sgt. Kalkat shut down attempts by the undercover shop to seek legal advice from the RCMP’s in-house counsel and demanded that only Ms. Devlin, Q.C. provide advice. It was only at the very end of the operation that Ms. Devlin, Q.C. became privy to the concerns of the undercover shop about facilitation and enabling the defendants, and her opinion regarding the provision of money and services to the defendants changed as a result. Sgt. Kalkat also wrested control over the content and direction of scenarios from the undercover shop in early May 2013. While Sgt. Kalkat testified he took this step because of Cpl. Matheson’s lack of experience with national security investigations, I find it is more probable that he disagreed with the shop’s concern that the undercover officers were exerting too much influence over the defendants and their desire to have Officer A act in a more neutral, calming manner. Immediately after Sgt. Kalkat took control of the scenario objectives, Officer A was directed to become more aggressive with the defendants in a number of ways in order to motivate them to act on their jihadist beliefs. He also replaced Cpl. McLaughlin, who voiced concerns about the Kelowna scenario, with S/Sgt. Kassam who was a “closer” and would bring the operation to an end quickly.
[822] In my view, Sgt. Kalkat’s decision to push ahead with the operation despite the lack of motivation shown by the defendants, his concerted efforts to eliminate any dissenters from his team, and his desire to bring the project to a speedy conclusion without due regard for the criminal nature of the acts committed by the undercover officers, cannot be regarded as good faith.
[823] There were a great many frustrations and problems that plagued Project Souvenir. The undercover shop and the investigative team had many disagreements about the pace and direction of the operation; however, most of the problems were caused by the defendants’ lack of focus and motivation to do anything beyond talk about jihad. The RCMP’s pre-occupation with motivating the defendants to commit an act of terrorism appears to have distracted them from more important considerations such as the legality of their actions.
[824] All of these circumstances render the illegal acts committed by the police more egregious and, in combination with the overall conduct of the police, an abuse of process. One must not forget that there was little risk to the public to justify illegal acts by the police. The RCMP did not act to break up a pre-existing plan to carry out a terrorist plot. There was no evidence that the defendants had taken steps to formulate a terrorist plot; were in communication with known terrorists or terrorist organizations; or possessed any expertise that would have been of value to a terrorist organization. The police were not infiltrating a sophisticated terrorist organization. The illegal acts committed by the police were not directed at the defendants or designed to frighten them into committing the offence. However, it is equally offensive for the police to commit illegal acts that enable an offence in circumstances where they knew the defendants could not have committed the offence absent police assistance.
[825] I turn now to the defence submission that the police interfered with the defendants’ rights under s. 2(a) of the Charter.
[826] There is no dispute that the facts in this case engage religious beliefs; the Islamic faith and its tenets clearly fall within the broad and subjective definition of religion adopted in Syndicat Northcrest. In this analysis, the Court must take a subjective view of religion and focus on whether the defendants had a sincerely held belief in the practice or system. In this regard, there is ample evidence to establish the defendants’ sincerity regarding the tenets of the Islamic faith. They strove to learn all aspects of the faith and to govern their lives by these beliefs and the teachings of the Quran. The Crown does not argue otherwise.
[827] The question is whether the actions of the police interfered with the defendants’ freedom of conscience and religion in a manner that is neither trivial nor insubstantial. Although the police conduct may be characterized as persistent encouragement and direction towards a particular interpretation of the Islamic faith, the undercover operation did not compel the defendants to act contrary to their religious beliefs. Thus, the focus of the inquiry must be on interference with the defendants’ religious beliefs.
[828] The Crown argues that there are limits to freedom of religion; one’s religious beliefs are not justifiable in a free and democratic society if they cause harm to other persons. The defendants expressed a radical view of the Islamic faith that appeared to justify violence beyond self-defence. However, the defence does not argue that the police interfered with the defendants’ right to act out violently based on their religious beliefs. Instead, the defence maintains the police undermined the defendants’ right to be free from state inference in their religious practices and beliefs by using religious guidance as a means of inducing the defendants to commit an act of terrorism.
[829] The facts of this case are clearly distinguishable from those in Welsh. The defendants did not seek out spiritual guidance from Officer A to thwart the justice system and their questions were posed to him for a spiritual purpose. They were new converts to the Muslim religion and repeatedly sought guidance about whether the faith permitted violence as a means of redressing political wrongs towards other Muslims.
[830] Officer A, with the approval of senior officers, abused the high value our society places on maintaining the dignity and privacy of one’s religious beliefs. It is intolerable that the police placed themselves in the position of spiritual advisor and proceeded to dole out religious guidance that propelled the defendants towards unconditional acceptance of radical jihadist beliefs. The police knew that the defendants believed that Officer A had a vastly superior knowledge of the Islamic faith. The police fostered this belief. In light of the influence Officer A had over the defendants in many other respects, it is not surprising that they would adopt all of his religious views, including those that denigrated scholarly interpretations of the Quran and the role of formally trained imams.
[831] In the context of the entrapment inquiry, the police conduct must be viewed as egregious, particularly because Officer A’s use of religious tenets and beliefs as a means of inducing criminal acts was only one aspect of the multi-faceted manipulation that occurred during the undercover operation. However, in my view, s. 2(a) of the Charter was not intended to address the kind of police misconduct that occurred in this case. Officer A did not place limits on how the defendants exercised their right to freedom of religion. He did not preclude them from going to a mosque or seeking guidance from other persons and he did not extract a confession while pretending to be a priest. When Officer A dropped them off at the mosque during the shopping trip for the pressure cookers he instructed them not to talk to anyone. However objectionable this direction was in the context of entrapment (it illustrated another attempt to isolate them), it was minimally intrusive in the context of an inquiry under s. 2(a).
[832] Officer A promoted and encouraged certain religious beliefs and disparaged others. He said things to dispel any qualms the defendants had about carrying out violent acts in support of religious beliefs. Further, Officer A knew that Mr. Nuttall had come to view him as a spiritual leader and that what he said carried great weight and influence. While this conduct may otherwise contribute to a finding that the police conduct amounted to an abuse of process, it is not the type of interference with religious freedoms contemplated by s. 2(a).
[833] Inducing a particular religious belief by exerting psychological influence over someone is not a state-imposed limitation on the defendants’ freedom to choose their own religious beliefs. This does not abrogate, abridge or infringe religious freedoms. The defendants were easily led and manipulated by the police and Officer A became a very influential person in their lives. Nevertheless, the freedoms guaranteed by s. 2(a) of the Charter do not depend upon the personalities of those who claim their rights have been violated. One must be able to say that regardless of the vulnerabilities exhibited by the defendants, the state interfered with their right to freedom of religion.
[834] It is only in exceptional circumstances that an abuse of process will justify a stay of proceedings based on the residual ground that state misconduct undermines the integrity of the justice system. A stay should be granted only when the abuse of process has a prospective impact and is likely to continue into the future or when it is aggravated by the outcome of a trial. In this case, the actions of the police threaten fundamental beliefs our society holds about human dignity and fairness. There must be a balance between the need to protect the public from crime and what is tolerable police conduct in a free and democratic society.
[835] It cannot be said that the police acted in bad faith; however, they did not act in good faith. They were clearly overzealous and acted on the assumption that there were no limits to what was acceptable when investigating terrorism. Within their ranks there were warnings given and ignored. Anyone who disagreed with Sgt. Kalkat’s views saw their roles and influence over the course of the operation minimized or eliminated. There is clearly a need to curtail the actions of the police in a prospective sense to ensure that future undercover investigations do not follow the same path. Moreover, to permit the defendants’ conviction to stand in the face of this kind of police misconduct would be offensive and would cause irreparable damage to the integrity of the justice system.
[836] 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.
[837] 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.
“Bruce J.”