In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offense that the person would have otherwise been unlikely to commit. It is a conduct that is generally discouraged and thus, in many jurisdictions, is a possible defense against criminal liability.
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Craig Forcese and Kent Roach are professors of law at the University of Ottawa and University of Toronto, respectively, and authors of False Security: The Radicalization of Canadian Anti-terrorism.
CSIS Director Richard Fadden walks past RCMP officer
John Nuttall and Amanda Korody were found guilty of a terrorist crime manufactured by the police. That was the conclusion of the B.C. Supreme Court in its Friday decision to toss the prosecution from the courts. Justice Catherine Bruce’s indictment of police conduct was emphatic: “... 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.”
Mr. Nuttall and Ms. Korody were found guilty last summer of a plot to explode pressure-cooker bombs at the B.C. legislature. This was not, however, a plot that the police disrupted. Instead, RCMP “took two people who held terrorist beliefs but no apparent capacity or means to … carry through with their religiously motivated objective and they … moulded them into people who could, with significant and continuous supervision … by the police, play a small role in a terrorist offence.”
This was unequivocal entrapment – a defence that has never succeeded before in a Canadian terrorism trial.
The judgment is limited to its particular facts. It is about the police manufacturing a terrorist crime where the accused were isolated and hapless. The police will have more latitude in cases where the suspects are already plotting or when they have terror connections or skills that do not require the police to take them step by “baby step” through a plot.
But still, this case also has broader lessons for Canada’s anti-terror tactics.
First, there is the problem of stings – used in many terrorism cases especially in the United States. This is the first such case to end in entrapment. (In Canada entrapment is decided by judges, and not juries as in the U.S.) Authorities on both sides of the border should learn from this case.
Overaggressive stings amount to self-fulfilling prophecies, as people are encouraged to violent intentions they would otherwise never act on. And such police conduct attracts allegations that suspects were targeted largely because of their political or religious views. This may taint the legitimacy of all terrorism prosecutions and support a narrative that the police target Muslims they perceive to be extreme, and then manufacture crimes to get them.
Meanwhile, police expend considerable resources on suspects who are not the most intelligent, determined or dangerous potential terrorists. The B.C. case involved a five-month sting, reportedly implicating 240 police officers. Directing scarce resources at marginal threats may mean fewer resources for more complicated, but potentially more important anti-terror investigations.
Second, there is the problem of speech. Justice Bruce stressed that the suspects were “all talk.” The police targeted them without reasonable suspicion they were involved in crime – the mere expression of radical and even violent thought was not a crime. But similar suspects could now run afoul of the new terrorism speech offence created by C-51, the Harper government’s constitutionally doubtful 2015 terror law.
Third and most important, there is the patent inadequacy of Canada’s fractured terrorism investigations. The RCMP and CSIS were both watching the B.C. couple. But CSIS provided very little information to the police in order to protect its sources and methods from disclosure. This meant that the police could not evaluate the origin or reliability of the CSIS information.
This siloed approach is standard procedure – one that the 2010 Air India bombing inquiry condemned. During the Bill C-51 debates, an experienced UK expert told the Senate that it made Canada vulnerable to a disastrous terrorist attack by a fast-moving, competent adversary. But instead of acting on this concern, the Harper government gave CSIS expansive powers to disrupt terrorist plots. Now, without substantially more co-ordination than is evidenced in the B.C. case, we risk police and the RCMP both acting as agents of disruption in manners that could contaminate subsequent terrorism trials. And successful convictions are the only way to take truly dangerous people off the streets.
The court’s lengthy decision in the B.C. case casts doubt on Canada’s anti-terrorism investigations. That is deeply troubling given the terrorism challenges we confront. It must spark serious reconsideration, not just of police methods, but also how police collaborate (or not) with CSIS. And it must also inform the Liberal government’s anticipated rethink of the rightfully maligned Bill C-51.
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