Prime Time Crime

(Prime Time Crime exclusive July 31, 2016)

A Subjective Test 


By Bob Cooper



Two accused terrorists had their cases thrown out Friday morning in BC Supreme Court on the grounds that the RCMP had entrapped them.  Essentially the judge said that the police went way too far in an undercover operation and created a crime that neither could have carried out on their own.   Entrapment    2016 BCSC 1404

The stay, which nullified the verdict of a jury which had convicted both, was accompanied by scathing criticism of the conduct of the police which was instantly parroted by the press across the country.  Like most people I have a general overview of the case but not having been present for any of the trial I wouldn’t presume to criticize either the judgement or the police investigation.  Unlike most people I am very familiar with undercover operations and I’d offer a couple of considerations the public should bear in mind.

The legal tests for entrapment in Canada are fairly subjective but generally provide that the police must be able to show a pre-disposition to commit a specific crime prior to targeting an individual.  If any sort of bait or inducement is held out, which is done in some circumstances, it cannot be of a value that would overwhelm the will of an ordinary reasonable person.  While the police can create the opportunity to commit a crime, they cannot induce a person to do so and this appears to be the over-arching factor here.  

Sounds pretty simple and reasonable doesn’t it?  In court it always does but the real world is a whole other story.  The problem with subjective tests is that it’s sometimes difficult to tell where the line is and easy to step over it without realizing you’ve done so.  The higher the stakes the greater the difficulty.  The plot here involved the planting of bombs at the BC Legislature designed to explode when the grounds would be packed with innocent people celebrating Canada Day.  Had they succeeded the death & injury toll would have been massive.  Not to mention the spectre of a violent attack on a legally constituted government. 

The police didn’t pick Nuttall and Korody out of the phone book and once you open one of these investigations it’s like having a tiger by the tail.  Do you just shut the case down, leave them to their own devices, and hope they don’t find someone else who is more helpful or hatch another plot that is within the realm of their capabilities?  A lawyer for the surviving killer in the Paris massacre described his client as having the IQ of an ashtray and they killed 130 people.  As an acting boss I’ve been in the position of making those sorts of decisions and I wouldn’t envy the commander his task. 

These investigations are subject to oversight from both Crown Prosecutors as well as a judge who must approve authorizations and renewals for electronic surveillance.  The entire case up to that point must be disclosed to them or any wiretap evidence will be tossed.  In this case neither found any concerns and the Crown has already launched an appeal of the stay of proceedings. 

While the court found the investigation to have failed the ‘legal’ test it more than passed the ‘real world’ test.  Nuttall’s mother, in response to a reporter’s purposely leading question, described the police as “evil” and her son and his girlfriend as “innocent”.  In the words of Prosecutor Peter Eccles “Let’s face it, they did do it, and they meant it”.  Innocent?  Hardly.  As I said at the time, whether planted by a couple of low-functioning losers or a committed, well-trained jihadist, bombs don’t discriminate.

The most significant and informative reporting on this case came in this article by Stephanie Ip of PostMedia:   They were out of their league.      

I have a lot of respect for Al Haslett and I’m certainly not alone.  He’s a legend in law enforcement both here and internationally.  I really don’t know if the case was fatally flawed or the judge just found the defence arguments more persuasive.  I suspect a combination of the two but when a policeman of the stature of Al Haslett is publicly critical of what was done the RCMP would be well advised to sit up and take notice.

Bob Cooper is a retired Vancouver policeman.  He walked a beat in Chinatown and later worked in the Asian Organized Crime Section and the Homicide Squad.



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