CSIS and RCMP accused of entrapping terrorism suspects

This is part three of a four-part series investigating institutional biases at the RCMP and CSIS in regards to intelligence-gathering. Parts one and two can be read here and here. See here for the fourth part, which investigates RCMP and CSIS' treatment of far-right groups in Canada.

On July 2, 2013, the RCMP held a press conference in Surrey, B.C. Standing against a bright-blue backdrop, grim-looking senior RCMP officers, dressed in full regalia, displayed photos of pressure cookers said to have contained explosives. They then solemnly announced the arrest of two people, which had occurred the previous day, for “terrorism-related activities.”

John Nuttall, 38, and his common-law wife, Amanda Korody, 29, had placed what they thought were three bombs on the grounds of the B.C. legislature in Victoria, designed to kill dozens of people. The case, which the RCMP called “Project Souvenir,” made for sensational headlines and the couple was soon labelled the “Canada Day bombers.”

In 2015, Nuttall and Korody, who live in Surrey, B.C., were convicted by a jury and facing stiff sentences. But immediately after the verdict, the couple's lawyers applied for a stay of proceedings over how the RCMP had conducted their sting operation. Before the Supreme Court of British Columbia, and over weeks of hearings that stretched from the summer of 2015 until the summer of last year, the Mounties' methods of investigating Nuttall and Korody were placed under a microscope in the main courthouse in Vancouver.

Finally, when the court made its ruling a year ago, it was a stunner: the judge accused the RCMP of entrapment – of basically fabricating most of the terrorist plot. As Justice Catherine Bruce noted in her ruling: “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.” She threw out the guilty verdict against the couple.

This sting, and subsequent trials, cost millions of taxpayers’ dollars, involving more than 240 officers and $900,000 in overtime alone.

So what happened?

As discussed in parts one and two of this series, there's growing evidence that internal biases within the RCMP and CSIS are leading to people being wrongfully accused of terrorism. The Nuttall-Korody case suggests these agencies are even manufacturing terrorism cases that would not otherwise exist. Marilyn Sandford, one of Nuttall’s attorneys, suspects the RCMP in particular was influenced by the example of police undercover operations carried out in the U.S. “South of the border this is standard procedure now,” she remarks. “Most terrorism investigations (in the U.S.) are state-created plots in which vulnerable people are entrapped… In the States, if you have a predisposition to certain ways of thinking or certain potential criminality, the police are allowed to do whatever they want to try and move you in that direction and it’s not entrapment so long as they can prove the predisposition. So I think that quite common method of creating an undercover operation got translated into the Canadian context.”

Encouragement or entrapment?

In 2005, Mubin Shaikh was asked by CSIS and the RCMP to infiltrate a group of young Muslim men, some of whom attended a mosque in Scarborough, Ont. Shaikh was a CSIS undercover operative focusing on penetrating jihadist groups. CSIS felt it had evidence the men were planning some sort of jihadist-inspired terrorist acts. Shaikh befriended those in the group who wanted to establish a camp north of Toronto to train fighters to carry out attacks on public officials. (Another group of men within this circle planned to blow up buildings using truck bombs.) Shaikh brought a gun and bullets he had purchased when the men went to train. And he encouraged the men.

In the summer of 2006, 18 of these Muslim men were arrested, and soon dubbed the "Toronto 18." The case garnered international headlines. In the coming years, Shaikh testified in court against many of the accused. In the end, seven pled guilty, four others were convicted, while the rest saw charges stayed or dropped. Yet Shaikh was attacked by some of the defendants' lawyers, and by members of the Muslim community, for entrapping the men. "There was a level of denial by the Muslim community," says Shaikh. "I was accused of entrapment. People still believe no matter what that it was entrapment."

Indeed, Paul Slansky, a Toronto criminal lawyer, who represented one of the defendants that was part of the bomb plot (and later pled guilty), says: “It’s quite clear to me that the bomb plot wouldn’t have happened but without the involvement of the authorities,” noting that the person who provided the ammonium nitrate to make the truck bombs was a second RCMP undercover agent, Shaher Elsohemy. “It was not like it was a complete creation by the police. They facilitated it to the point where it made it easier to do and therefore more likely to be done.”

Edward Sapiano, a Toronto criminal lawyer, represented another defendant whose charges were eventually dismissed. He also believes the case was contrived by the RCMP. (He says many of the suspects pled guilty for practical reasons – it meant lighter sentences.) “The whole thing was concocted,” insists Sapiano. “They found some kids who talked too much, some older guys who talked too much… This was a total charade, it was an abysmal, abysmal waste… Just meeting these 18 people: They were young inexperienced and naïve. There are petty drug dealers on Yonge Street that are more sophisticated than most of these guys… They were very inexperienced buffoons.”

Judges hearing the cases, however, dismissed any claims of entrapment.

Still, the use of undercover operatives by the RCMP and CSIS in their investigation of terrorism-related cases often runs into the charge they are engaging in entrapment.

The rules of entrapment were laid out in a 1988 Supreme Court of Canada decision called Mack. It noted that entrapment can happen depending on the persistence and number of times the police encourage someone to commit an offense, the type of inducement used (such as threats), and whether they exploit someone's weaknesses — in particular substance addiction, mental handicaps or friendships. "You just can’t randomly pick people and try to encourage them to commit crimes," explains Alan Young, a professor of criminal law at Osgoode Hall Law School. "That will always be entrapment... So the first entry point for the police in terms of getting an undercover targeted operation is they must target people for whom they have a reasonable suspicion they may commit that crime. That’s the difference. They can encourage all they want but they can’t induce or manufacture."

Young also adds, "there is no question you have to be far more sensitive and cautious when you’re allowing police to engage in undercover operations involving political ideologies. Because there are aversions and we live in a culture of fear about this right now and we have to be very prudent that we don’t basically use the undercover operation to target Muslims at large, and that’s one of the dangers here."

Canadian law allows undercover police agents to encourage a crime as long as a pre-existing plot among the would-be perpetrators is in motion. Ben Soave, a former RCMP chief superintendent who spent years working on organized crime and terrorism cases that involved using undercover operatives, says the role of the undercover operative is not to dissuade someone to commit a crime. “That informant wouldn’t last very long if he’s trying to dissuade these guys from committing a terrorist act,” he remarks.

Nevertheless, questions linger over whether CSIS and RCMP have been careful to balance the line between entrapment and encouragement, and of focusing on truly hardcore terrorists — or just mixed-up, vulnerable people.

"I do see that zealousness in way they operate," observes Shaikh. "I chalk that up to the nature of pursuant agencies. Cops are like this, military are like this. They are 'go go' all the time. And if you are a CSIS surveillance (person), your job is to follow this guy around; all you know is we investigate terrorist threats and this guy I am investigating is probably a terrorist threat. And they are making sure of where this guy is going and what he's doing. Even though there might be no indications of that — they operate on the worst case scenario basis."

The story of John Nuttall and Amanda Korody speaks to how the lines can be ignored in the zeal to prove someone poses a danger.

Nuttall and Korody were former heroin addicts, frequently drunk and stoned

The RCMP first heard of Nuttall in 2012 when someone complained to them that he was espousing violent Islamic beliefs. The RCMP conducted a thorough investigation and eventually concluded Nuttall posed no threat. A psychiatric nurse who examined him at the time felt Nuttall was developmentally delayed “because he spoke slowly and had difficulty understanding what (a police) officer said to him,” according to the judgment. One anonymous informant told CSIS he felt Nuttall was “mentally slow.”

Interest in Nuttall was rekindled in early 2013 when CSIS sent the RCMP a letter claiming it had unverified general concerns that he was a “threat to public safety.” When an RCMP superintendent met with a local CSIS officer, the Mountie was told CSIS was worried about Nuttall because he might be a recent Muslim convert attempting to recruit others and be capable of violence.

Soon CSIS was claiming that Nuttall — a tall, shambling former punk musician who grew up in Victoria — was attempting to purchase potassium nitrate, a precursor for explosive devices, at pharmacies in Surrey. This, in fact, was likely erroneous: a later investigation found no evidence Nuttall was doing anything suspicious at pharmacies other than picking up prescriptions for his grandmother.

Indeed, Nuttall and Korody did not fit the portrait as trained, organized and ideologically-committed Islamic terrorists. Instead, they were on welfare, both recovering heroin addicts who lived isolated lives in a messy, garbage-strewn basement apartment. They were frequently drunk and stoned and on methadone treatment, and spent much of their time playing video games. They rarely ventured outside.

According to the criteria laid out by the Supreme Court in respect to what constitutes entrapment, Nuttall and Korody met at least two of them — they had mental health and drug addiction issues. And the RCMP were aware of this: one corporal voiced the view that Nuttall displayed mental health problems. And the Mounties soon learned of their past issues with drug addiction and current use of marijuana.

Nuttall and Korody apparently knew almost nothing about Islam either. One CSIS informant said Nuttall admitted to him he understood little of Muslim practices. “He did not know the basics about praying to Allah,” this source indicated. Initially, Nuttall seemed attracted to a radical interpretation of Islam and was even asked to stop attending a local Muslim prayer room because of his beliefs.

RCMP headquarters places pressure on staff to make the case a priority

Despite this plethora of red flags, people in high command at the RCMP’s headquarters in Ottawa became overly focused on the couple. “Work hard on this and treat it as a priority investigation,” one RCMP superintendent in B.C. was ordered by his Ottawa superiors. “It was a national priority to move this thing forward,” says Sandford, who relates that those within the RCMP who raised doubts about the operation were soon silenced or replaced. Indeed, very senior officers in Ottawa watched the progress of the operation carefully.

The couple was placed under around-the-clock surveillance by both CSIS and the RCMP. A pole camera was even placed outside their basement apartment to monitor their movements. But the surveillance only revealed the couple were not adventurous; they remained close to their home and frequented a local gas station for coffee and cigarettes. They had no car and therefore travelled on foot within a four-block radius of their apartment. Apart from grocery shopping, filling prescriptions at the local pharmacy, and playing paintball on the railway tracks in the rear of their residence, they spent little time outside. Indeed, this surveillance revealed “no criminal activity or any plans to commit crimes,” according to the judgment.

That's when the RCMP decided to step things up. By then, the Ottawa headquarters considered the investigation “urgent and a national priority.”

Thus, a decision was made to send in an agent to befriend the couple. Posing as an Arab businessman, an undercover RCMP officer introduced himself, claiming to be someone connected to a well-financed, sophisticated terrorist organization.

RCMP press couple to devise a terrorist plot

It's at this point the RCMP went from encouraging to manufacturing, according to the judgment. For weeks, the RCMP undercover officer pressed Nuttall to devise a terrorist scheme. “I was supposed to come up with a plan and I didn't come up with a plan,” Nuttall told CTV earlier this year. “I had, like, three days or so to come up with a plan, and I just spent the whole time playing video games and smoking weed.” When Nuttall finally suggested ideas for attacks, they were wildly impractical – such as a hijacking a Via Rail passenger train that was no longer in service, or stealing a nuclear submarine and "taking the world hostage." These ideas only frustrated the RCMP.

Meanwhile, when Nuttall began voicing qualms about killing innocent people or needing spiritual help, the RCMP undercover officer discouraged this thinking. Instead, he told Nuttall “the purpose of every Muslim was to die a martyr,” according to the judgment.

After weeks of pressuring Nuttall, the idea of bombing the B.C. legislature emerged. The RCMP even paid for the couple to take a recon trip to Victoria – a disaster, according to the judgment. “What occurred during the Victoria recon further demonstrated Mr. Nuttall’s ineptitude even for the simplest tasks,” it notes. “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.”

The idea of placing explosives in pressure cookers was encouraged by the RCMP, who made every effort to ensure it would happen. “(The RCMP undercover officer)… systematically eliminated every obstacle standing in the way of Mr. Nuttall accomplishing a plan involving pressure cookers: he promised C4 (explosives), 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.”

In the end, on July 1, 2013, Nuttall and Korody planted the cookers in the decorative bushes flanking the legislature while under surveillance by a large team of police officers. They were immediately grabbed. The cookers never contained any real explosives.

John Nuttall and Amanda Korody leave the Vancouver courthouse in August 2016, after convictions were overturned. Photo by The Canadian Press

When the judge overturned their conviction last year, she noted: “The (RCMP) 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.”

Despite this condemnatory ruling, the Crown is appealing the decision. The RCMP refuses comment on why.

Today, Nuttall and Korody are waiting for the appeal to be heard. "Some people see us as heroes simply because we beat a life sentence," they responded via email to a question put to them by National Observer.

"While others, (with a few exceptions) from the government and law enforcement community would like to see us behind bars for the rest of our lives. Either way, we are not heroes, we are victims and pawns in an attempt to convert us into Manchurian candidates in order to justify the draconian Bill C-51 and to spread Islamophobia across the country. If this sounds unreal, consider this: One of the members of (the RCMP's Integrated National Security Enforcement Teams) admitted in our trial on the stand and testified that this Project Souvenir went all the way to the top."

The Via Rail derailment plot

But the Nuttall and Korody matter is not the only terrorist case where questions of mental health, drug addiction and entrapment have emerged.

In 2013, two Muslim men, Chiheb Esseghaier and Raed Jaser, were arrested and charged with a host of terrorism conspiracy charges, notably conceiving of a plot to derail a Via Rail train traveling between Toronto and New York, and using a sniper rifle to assassinate prominent Canadians.

Working with CSIS and the RCMP, an undercover FBI officer, posing as a wealthy Egyptian businessman, had befriended the two men in 2012. He taped their conversations extensively.

But by the time the arrests occurred, Jaser had long dropped out of the scheme, and the terrorist plans never evolved beyond the talking and scouting locations stage.

In early 2015, the men went on trial. Esseghaier, who is originally from Tunisia, represented himself, and did not testify or offer a defence, saying he wanted to be tried under Qu'ranic law. His behavior was erratic — he wore a ratty blue ski jacket, and often slept through portions of the trial. Jaser did not testify either, but was represented by counsel.

After a trial that stretched over two months, a jury found the men guilty on all but one count. Later that year, they were sentenced, with Esseghaier receiving a sentence of two concurrent life sentences plus 18 years, and Jaser to life in prison plus a concurrent sentence of 13 years.

Mental illness and drug addiction issues emerge with defendants

But during the sentencing hearing, and more recently, the issue of Esseghaier's mental health and the motivations of Jaser emerged. Prior to his sentencing, Esseghaier was examined by two psychiatrists. Both concluded he was mentally ill (one felt he suffered from a psychotic disorder and was likely schizophrenic), and his illness likely predated his period of Islamic radicalization. Indeed, before his arrest, he often displayed bizarre behavior: one former roommate told police Esseghaier would spend three to four hours at a time in the bathroom and woke up the neighbours regularly at 3 a.m. with his yelling and prayers. Another man from his mosque told police he thought Esseghaier was mentally unstable. One of the psychiatrists posited Esseghaier's mental illness coincided with his descent into radical Islam.

Trevor Aaronson, author of The Terror Factory, a book critical of the FBI’s anti-terror tactics, argues that it's not uncommon for terrorism targets to suffer from mental illness. “Instead of finding the truly dangerous guys, they’re finding the loudmouths who aren’t there, mentally," Aaronson has said.

Criminal law professor Alan Young notes that "nobody has a crystal ball and often police go into situations without knowing all of the details, but there are also obligations for them to effectively investigate. And so there will situations where they uncover a mental disorder after the fact and you can’t fault them for that. And then there are cases where there is every indication that they knew or ought to have known and you will saddle them with the obligation to be more delicate and sensitive."

In the case of Jaser, his lawyers argued entrapment on the grounds that the plans to commit acts of terrorism only emerged once the FBI agent befriended them (the sentencing judge disagreed with this claim). His lawyers also produced an expert witness who argued that Jaser was a drug addict and a “con man” at the time of the offences, that his motivation was to obtain money from his two accomplices, that he was never a sincere jihadist, or ever had any genuine intention to harm anyone. The expert witness wrote that Jaser: "had (and has) a severe, significant and, at times, debilitating addiction to a wide variety of drugs that include marijuana, hashish (black tar) and alcohol, and there was never a time since the age of 14 up until the day he was arrested that he was not only using these substances, but was chronically high and intoxicated."

In the end, however, the judge didn't accept these expert witnesses' conclusions and in a scorching decision, threw the book at the two men. It was a decision that surprised some experts, who said Esseghaier's mental illness put into question whether he'd had a fair trial or not.

Then this past summer, a new wrinkle emerged. Once Esseghaier went to prison, he began to take anti-psychotic medication and says he suddenly realized the gravity of what had happened to him. He's since launched an appeal of his case on the grounds he was suffering from mental illness during his trial and sentencing. "I was suffering from delusions and believed that I would die and my soul would ascend to heaven on December 25, 2014," Esseghaier wrote in his appeal. "Because of this delusion, I did not believe that the life sentence imposed was real and did not want to acknowledge the existence or legality of the sentence by appealing it."

When asked about its involvement in the Nuttall-Korody and Esseghaier-Jaser cases, CSIS spokesperson Tahera Mufti responded: "As you can appreciate, I cannot discuss the precise nature of our investigations due to national security reasons. With respect to the matter before the courts, I am unable to comment on specifics."

Next in the series: While the RCMP and CSIS have focused massive resources on finding Muslim terrorists, are they overlooking a potentially greater danger to the security of Canadians — the extreme right?