Editorial – Entrapment: when does fiction stop and reality start?

john-nuttall-and-amanda-korodyBy Monia Mazigh – In June 2015, John Nuttall and Amanda Korody, two Canadian Muslims, were found guilty of terrorism charges. They were arrested because the RCMP alleged that the pair wanted to blow up the B.C. legislature. Since 2001, several Canadian Muslims have been arrested and convicted of terrorism. One of the most known terrorist cases is the Toronto 18. In that particular case, some defence lawyers tried to argue that their clients had been entrapped by informants who inflamed them and facilitated their plotting. At that time, these arguments were rejected by the judge and several of the accused were convicted of terrorism charges.

What is unusual in the case of Nuttall and Korody is that during their trial, the judge became concerned about the possibility of entrapment of the couple. Indeed, an RCMP undercover officer posing as a rich Arab businessman befriended them and helped them with their plot. During the trial, the head of an RCMP team tasked with investigating possible terror suspects testified at the B.C. Supreme Court “that he had concerns about entrapment and abuse of process near the start of a police sting.”

The couple’s defence lawyer argued that Nuttall and Korody were manipulated by RCMP informants to detonate pressure cooker bombs in the Victoria legislature on Canada Day in 2013. The couple, who converted to Islam, suffers from drug addiction and lived on welfare before they were arrested. Furthermore, police notes suggest that Nuttall could have a “mental developmental delay”. These facts are important to mention because, if the judge founds that entrapment took place, they would add to the evidence that law enforcement has a pattern of targeting vulnerable individuals as potential “wannabe terrorists”.

In 2013, a US Congressional research service report mentioned that “since the September 11, 2001 (9/11) attacks, the FBI has implemented a series of reforms intended to transform itself from a largely reactive law enforcement agency focused on investigations of criminal activity into a more proactive, agile, flexible, and intelligence-driven agency that can prevent acts of terrorism.”

Indeed, one of the methods adopted by the law enforcement agency is the introduction of an informant or “agent provocateur” into the life of “vulnerable people” to talk to them and encourage them to commit a terrorist act.

In 2014, Human Rights Watch (HRW) released a report, “Illusion of Justice”, that documented 27 counterterrorism cases. The HRW report indicates that, “according to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot”.  Moreover, the report found that in many cases where entrapment had been deployed, people with mental and intellectual disabilities had been targeted.

Back to Canada, the use of entrapment seems to be a possible reality in the case of Chiheb Esseghaier and Raed Jaser. A wealthy Arab businessman, in reality a FBI informant, posed as someone who wanted to help the suspects into conducting violent acts. The mental status of one of the suspects (Chiheb Esseghaier) and the precariousness of the financial situation of Raed Jaser and the legal status of Ahmed Abbasi(1) in Canada (who was released after spending 17 months in detention in the US), were used as vulnerable factors to draw the suspects further into the terrorist act plotting.

This, of course, doesn’t excuse the sympathetic ideas that the suspects hold regarding violent ideologies but nevertheless it is interesting to consider the question: “would they still have planned or committted any acts if the undercover agent didn’t encourage them to do so?”

In Canada, an independent investigation is needed to tell Canadians whether the RCMP has been using the same entrapment strategies as the FBI. The decision of B.C. Supreme Court Justice, Catherine Bruce, regarding the entrapment of Nuttall and Korody could be the best reason to do so. However, the trial has been suspended after CSIS refused once again to turn over documents relating to their involvement in the plot. We could be in the dark for a very long time.

(1) According to Karen Greenberg, the director of the Centre on National Security at Fordham Law School in New York, Ahmed Abassi’s case seems to be the first and only time that the defence of entrapment was successfully used to have terrorism-related charges dropped.