R. v. Nuttall | Jul 29, 2016

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Nuttall,

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

Counsel for the Crown:

Peter A. Eccles

Sharon K. Steele

Counsel for the Accused, John Stuart Nuttall:

Marilyn E. Sandford

Alison M. Latimer

Counsel for the Accused, Amanda Marie

Korody:

Mark R. Jetté

Scott Wright

Place and Date of Trial/Hearing:

Vancouver, B.C.

July 13-15, 20-24, 27-29,

October 19-21, 28-30,

November 2-6, 2015

January 4-8, 11-15, 18-22,

25-27, February 1-4, March 1, 14,

April 18-19, June 6-10, 13-17, 2016

Place and Date of Judgment:

Vancouver, B.C.

July 29, 2016

R. v. Nuttall

Page 2

Table of Contents

Paragraph

Range

INTRODUCTION

[1] - [3]

PROCEDURAL HISTORY

CREDIBILITY

[4] - [9]

[10] - [14]

OVERVIEW OF THE RCMP INVESTIGATION – PROJECT [15] - [471]

SOUVENIR

A. Commencement of Project Souvenir

B. Background Information about Mr. Nuttall and Ms. Korody

C. Surveillance under Project Souvenir

D. The Advisory Letter

[15] - [32]

[33] - [44]

[45] - [51]

[52] - [54]

E. The Next Steps in the Investigation

F. The Scenarios for Project Souvenir’s Undercover Operation

MENTAL CAPACITY AND PSYCHOLOGICAL ISSUES

EXPERT EVIDENCE

[55] - [66]

[67] - [471]

[472] - [475]

[476] - [503]

[504] - [536]

[506] - [511]

[512] - [514]

[515] - [534]

[535] - [536]

[537] - [614]

[537] - [579]

[537] - [556]

[557] - [569]

[570] - [570]

[571] - [579]

[580] - [614]

[615] - [837]

[615] - [781]

[615] - [661]

[662] - [781]

[662] - [670]

ARGUMENT

A. Reasonable Suspicion

B. The Crown’s Preliminary Argument Re: Jury Verdict

C. Inducement of an Offence

D. Abuse of Process

GOVERNING LEGAL PRINCIPLES

A. Entrapment

1. Generally

2. Reasonable Suspicion

3. Inducement

4. Entrapment in Terrorism Cases

B. Abuse of Process

DISCUSSION

A. Entrapment

1. Reasonable Suspicion

2. Whether the RCMP induced the Defendants?

a) The Crown’s Preliminary Argument based on the Jury

Verdict on Motive

b) Was there Inducement within the Meaning of the

Principles in Mack?

[671] - [768]

R. v. Nuttall

i. Overall Assessment

Page 3

[671] - [673]

[674] - [687]

ii. Use of Deceit, Fraud; Implied Threats; No Ongoing

Criminal Venture

iii. Exploitation of Vulnerabilities and Friendship

[688] - [694]

[695] - [717]

iv. Police Conduct that Undermines Constitutional

Values

v. Persistence and Proportionality of the Police Conduct,

including Illegal Acts

[718] - [768]

c) Conclusion

[769] - [781]

[782] - [837]

[784] - [792]

[793] - [824]

[825] - [833]

[834] - [837]

B. Abuse of Process

1. Overall Conduct of the Police

2. Illegal Acts by the Police

3. Police Violation of Section 2(a) of the Charter

4. Conclusion

R. v. Nuttall

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INTRODUCTION

[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.

PROCEDURAL HISTORY

[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

R. v. Nuttall

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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

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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.

CREDIBILITY

[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

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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

R. v. Nuttall

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observed first-hand in the video and audio recordings of their encounters during the

undercover scenarios.

OVERVIEW OF THE RCMP INVESTIGATION – PROJECT SOUVENIR

A. Commencement of Project Souvenir

[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.

R. v. Nuttall

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[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

R. v. Nuttall

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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

R. v. Nuttall

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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

R. v. Nuttall

Page 12

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

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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.

B. Background Information about Mr. Nuttall and Ms. Korody

[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.

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[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

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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

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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.

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C. Surveillance under Project Souvenir

[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

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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

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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.

D. The Advisory Letter

[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

R. v. Nuttall

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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.

E. The Next Steps in the Investigation

[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.

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[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.

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[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.

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[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.

F. The Scenarios for Project Souvenir’s Undercover Operation

[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

R. v. Nuttall

Page 24

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

R. v. Nuttall

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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.

R. v. Nuttall

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[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

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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

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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.

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[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

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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

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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.

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[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

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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.

R. v. Nuttall

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[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

R. v. Nuttall

Page 35

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

R. v. Nuttall

Page 36

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

R. v. Nuttall

Page 37

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

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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.

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[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

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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.

R. v. Nuttall

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[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

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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

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Page 43

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

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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

R. v. Nuttall

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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

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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.

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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

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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

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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

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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

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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.

R. v. Nuttall

Nuttall said that he understands that, we also had a general conversation

Page 52

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

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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

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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

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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.

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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.

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[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

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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,

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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.

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[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

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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

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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,

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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

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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.

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[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.]

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[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.

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[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

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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.

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[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.”

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[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

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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.

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[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

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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

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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.

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[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

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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.

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[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.

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[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

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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.

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[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

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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.

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[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.

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[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

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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.

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[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

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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

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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

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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

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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

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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

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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

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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.

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[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

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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

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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.

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[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”

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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

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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

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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.

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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”,

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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.

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[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.

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[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,

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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

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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.

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[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

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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

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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

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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.

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[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

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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

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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.

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[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.

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[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.

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[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

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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

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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.

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[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.

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[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

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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

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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

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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

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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

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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

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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

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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’

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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

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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

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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?

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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,

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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

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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

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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.

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[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

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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

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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

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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

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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

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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.

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[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.

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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

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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

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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

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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

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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

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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

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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

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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.

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[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

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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.

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[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.

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[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

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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.

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[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

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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.

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[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.

MENTAL CAPACITY AND PSYCHOLOGICAL ISSUES

[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

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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

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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.

EXPERT EVIDENCE

[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

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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.

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[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

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JN: I know and I

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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

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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.

…

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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.

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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.

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[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.

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OA: That, and that’s what you have to think. Brother, it’s what’s in your

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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

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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

R. v. Nuttall

person he’s a Kaffir for example. We don’t actually know what’s in that

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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

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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.

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[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.

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ARGUMENT

[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.

A. Reasonable Suspicion

[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

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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.

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B. The Crown’s Preliminary Argument Re: Jury Verdict

[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.

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[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.

C. Inducement of an Offence

[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

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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 64185 (Ont. S.C.J.); R. v. Ahmad, 2009

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)

c)

providing property or services for a terrorist activity contrary to s. 83.03;

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

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aiding and abetting the defendants in making or having in their

d)

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

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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.

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[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.

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[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.

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[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,

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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.

D. Abuse of Process

[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

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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.

GOVERNING LEGAL PRINCIPLES

A. Entrapment

1. Generally

[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.

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[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

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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

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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

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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

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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.

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[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

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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.

2. Reasonable Suspicion

[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

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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)):

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The reasonable suspicion standard has been described as not “unduly

Page 191

onerous” (R. v. Mack, at 554) and “necessarily …low”: R. v. Cahill (1992), 13

C.R. (4^th) 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

R. v. Nuttall

and independent scrutiny demanded by the reasonable suspicion

Page 192

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.

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[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

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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.

3. Inducement

[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

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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.

4. Entrapment in Terrorism Cases

[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

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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.

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[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

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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).

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[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.

B. Abuse of Process

[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.

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[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).

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[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)

(3)

There must be no alternative remedy capable of redressing the

prejudice; and

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

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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.

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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.

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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

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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).

R. v. Nuttall

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[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).

R. v. Nuttall

[117] Violence and threats of violence are two forms of unacceptable

Page 207

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

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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

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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

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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).

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[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

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a police officer pretend to be a lock-up chaplain and hear a suspect’s

Page 212

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.

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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.

DISCUSSION

A. Entrapment

1. Reasonable Suspicion

[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.

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[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.

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[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.

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[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

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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

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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

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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.

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[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-

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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

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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.

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[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

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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.

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[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

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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

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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.

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[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.

2. Whether the RCMP induced the Defendants?

a) The Crown’s Preliminary Argument based on the Jury Verdict on Motive

[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:

Police Conduct

[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

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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

R. v. Nuttall

association with” a terrorist group, then the greater offence has not been

Page 230

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.

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[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.

b) Was there Inducement within the Meaning of the Principles in Mack?

i. Overall Assessment

[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.

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ii. Use of Deceit, Fraud; Implied Threats; No Ongoing Criminal Venture

[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

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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”

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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

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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.

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[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

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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.

iii. Exploitation of Vulnerabilities and Friendship

[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

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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

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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.

iv. Police Conduct that Undermines Constitutional Values

[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

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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

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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.

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[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

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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

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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.

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[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.

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[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.

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v. Persistence and Proportionality of the Police Conduct, including Illegal Acts

[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

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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.

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[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.

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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

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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

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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

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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

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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.

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[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

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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

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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

R. v. Nuttall

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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.

R. v. Nuttall

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[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.

R. v. Nuttall

Page 260

[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

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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

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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.

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[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

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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.

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[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.

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[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.

c) Conclusion

[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.

R. v. Nuttall

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[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.

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[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

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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.

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[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.

B. Abuse of Process

[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.

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[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.

1. Overall Conduct of the Police

[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

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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

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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

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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.

2. Illegal Acts by the Police

[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.

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(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.

2.

3.

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;

That the accused knew that the activity was in a general way a terrorist

activity;

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

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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

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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,

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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

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(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

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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

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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

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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

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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

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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

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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.

3. Police Violation of Section 2(a) of the Charter

[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

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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

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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.

4. Conclusion

[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

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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.”