In the last couple of months, the RCMP and its multiple investigative arms have been dealt several kicks to its institutional gut. They have had three major cases stayed in the last couple of months; one involved money laundering, another drug smuggling, and the third was a case of domestic terrorism. They say time heals and thanks to our speedy court system, all of these cases have had some years pass, making us forget the RCMP management bouquets of self-congratulations and the blowing of trumpets at the time of the original arrests. All three of these cases deserve scrutiny and demand some explanations, however the novelty of the terrorist case may be the most interesting and the most concerning.
The RCMP foray into the case of domestic terrorism involved the two now infamous “targets”; John Nuttall and Amanda Korody. A startled public expressed shock and consternation, as for some reason most Canadians still believe they are immune to this kind of thing, while the media tried to outdo each other with terrorism hyperbole.
A trial and the appeal courts five years later however found something quite different. After the initial trial the presiding judge basically overruled the jury, and announced that the two had been entrapped and entered a stay of proceedings on all charges. A couple of more years later, the Appeals court agreed with Judge Catherine Bruce, that this was a “clear case of police manufactured crime…”. That the police “did not disrupt an ongoing criminal plan” as had been advertised, in fact the police conduct of this file was a “travesty of justice”. Harsh words, even for a court system which is never reluctant to put the police on trial.
It is too easy to just say that the police “screwed up” in this incidence. One needs to dig down, sift through some layers of bureaucracy and investigational mandates, to begin to understand where this case went wrong and to begin to understand who should be accountable.
One has to start with the “targets”. Who were these terrorists, Nuttall and Korody? Well, their most notable feature may be the fact that they were two heroine addicts on the methadone program; they did not have their own residence living with Nuttall’s grandmother in a basement suite. They were on financial assistance, spent hours watching endless videos, and, rarely left the house. But somewhere in this sad, desperate, and often mindless existence, Mr Nuttall and Ms Korody decided to convert to Islam. Why? That will be left to the psychiatrists, but in hindsight their religion choice was probably the most significant factor. They likely would have gone unnoticed if they had turned to a different God.
It was 2013, the year of the Boston Marathon bombing by the Tsarnaev brothers. Islamic terrorism around the world was front and centre, both in the news and in the minds of the Ottawa Federal authorities. It would be a year later when a lone gunmen known in B.C. circles as “Muslim Mike” would attack the Parliament buildings in Ottawa. The political climate and the police were on edge. And it was the beginning of this mis-guided investigation.
There was a political environment fermenting in Ottawa, bubbling over with a need to thwart any budding terrorism. A need for the RCMP to prove itself to the world of our contribution to the righteous fight against terrorism. Instead, this investigation would turn out to be a shining example of institutional investigational “tunnel vision”, susceptible to over reaction and seeing ghosts where none existed.
It is also a story of how once the police machine is grinding along it is very difficult to reverse or stop the process, often rolling over any contrary narrative, or any human rights in the process. It is a difficult to explain, a mindset of how everything undertaken must be a success, there was no other option.
Compounding this clouded vision was a lack of supervision, a lack of understanding of the law, and two factions in the RCMP who were at odds with each other on how to proceed.
Clearly he was a violent person, but there are many of them that come across the police blotter, so what made him different than the others. How did this common criminal step over the threshold into terrorism?
In July 2012, the first mention of Nuttall showing some signs of his new prescription for life occurred when a female accidentally overheard a conversation on the street. Mr. Nuttall was on a cellphone, talking or yelling, about “blowing up” Islamic countries and making references to the “afterlife”. The female contacted the police, who attended and spoke with her to verify what she heard. When they spoke with her they noted that she was intoxicated.
A few months later another individual, who the courts call M.C. met Mr. Nuttall at a mosque. The recently converted Nuttall spoke of having killed a Jewish woman (which was later determined to be false); and he wanted help travelling to Afghanistan to take part in a violent jihad. Mr Nuttall was banned from several mosques because of his aberrant behaviour and the individual M.C. expressed concern for Nuttall’s mental health.
There should be no doubt that Nuttall was violent: convictions for robbery, kidnapping, aggravated assault and at least two incidents of domestic violence against his girlfriend/spouse Amanda Korody. All the files referred to his mental instability and behavioural issues.
In normal times, under normal circumstances, Mr Nuttall would have continued to be a proverbial flag in police computers a notation on his police file should he pop up in terms of any investigation or complaint. He seemed more of a subject for the Mental Health Act, seeming to always exhibit behaviour consistent with mental instability. In this case, if he was indeed a wannabe terrorist, he had no problem announcing to the world or anyone that would listen, that he was one, or at least wanted to become one.
An overheard phone call by itself does not warrant too much further action, but then along comes the Canadian Security and Intelligence Service (CSIS), who sends a letter to the Integrated National Security Enforcement Team (INSET) stating that Nuttall was a “potential threat to national security”. It was a “tip”, there was no source of the information given, and there were no actionable details.
A couple of months after this, CSIS sends another letter, updating their information to INSET; upping the ante as it were, now declaring that Nuttall had tried to purchase or had bought potassium nitrate. A chemical that can be used in the creation of explosives. This report too was unconfirmed at the time and in the end never corroborated.
So armed with this rather limited and unbacked information, INSET launches into an investigation. They conduct surveillance on Nuttall and Korody, and quickly learn that they are quite boring, never leave the house, and appear to have no life outside the walls of their house.
Yet, despite the negative findings, and despite it being uncorroborated information, this investigative group decides somewhat surprisingly that they will enter into an expensive undercover investigation, a technique usually used when in possession of much harder information. No terrorist activities had been uncovered, they had little more than one individual, Mr Nuttall, who may have been qualified for examination under the mental health act to justify this next step.
There was no evidence that Mr Nuttall was involved with a terrorist group, but to give the benefit of doubt, the police in this instance presumably must have felt there was enough there to warrant some form of “infiltration”.
There were three investigational groups that became directly involved. The respective mandates and the nuanced differences was where this file left them susceptible to mistakes.
CSIS is an intelligence agency that deals only in intelligence, it does not go to court, its investigations do not face scrutiny or examination in any public forum. It does not want to be exposed to any public light, out of necessity they argue.
CSIS was formed in the early 1980’s when the MacDonald Commission took Security Service away from the RCMP and formed this alternate agency (the primary reason, ironically considering this case, being that the Commission felt that the RCMP lacked the political sophistication to investigate groups such as the FLQ at the time).
The effectiveness of CSIS and its contributions to our national security, are up for conjecture and debate, as no one is fully versed on what they are doing; short of the cabinet committee on security and intelligence. Therefore, the public will likely remain in the dark, now and into the future. It can be argued that there is an investigational necessity to secrecy in the world of intelligence, but the fact that there never will be a shining light on their operational effectiveness, also makes for a convenient and easy hiding place, and is fully reliant on the public trust of Ottawa and its politicians.
With this mandate and with this structure at CSIS, when they receive or are exposed to information which is of a criminal nature, they are mandate bound to turn it over to the police for further investigation, which in this case is INSET. When CSIS makes the decision to turn over this or any criminal information, in some ways their interest in the case fades, as does their willingness and ability to cooperate.
INSET is the Federally directed group within the RCMP, with sections in the various Provinces including British Columbia. For a number of years it has been an innocuous group, hardly heard from, with a reputation of a good place to spend your retirement years, a sleepy hollow, an arm who often liked to hide behind the nomenclature of “national security” if ever questioned. As a result INSET is rarely heard or seen in the public eye.
However, over the last few years it has enjoyed a renewal, brought on by greater Ottawa Federal interest, a large increase in their manpower resources and budget, and this section began to catch the eye of Major Crime investigators who wanted a little quieter lifestyle. As an example, two of the three INSET investigators who formed the investigative group in this Nuttall case came from Major Crime backgrounds. One other thing should be noted and may be a key to understanding what went wrong, is that these major crime investigators brought with them some major crime investigative techniques; which often included undercover operations. That was their experience, it was part of their toolbox.
The third group of significance who may have played the most significant role in this investigation was the “Undercover Shop”. A relatively small section, which developed about 30 years ago. It was a group specifically designed to get close to the criminal element by being one of them, becoming entrusted by them, with the ultimate goal of obtaining confessions or uncovering criminal ties. It enjoys a somewhat misplaced allure not often found in other investigational teams.
As the years have moved on they have become more exposed through the courts, the techniques often on full display, the methods studied in criminology courses. They even talk about it on their own public website. If you were listening to talk radio today you would have heard their techniques being the subject of talk radio. Any technique that is exposed to such a great degree, is less effective and possibly dangerous.
Over they years the Undercover Unit developed tried and true “scenarios”; staged one act plays with police officers pretending to be part of the criminal element, designed to further their credibility with the target; all hopefully leading to a point where the target fills the need to inform “Mr. Big” about his previous criminality. Ultimately the target wants to please, to gain approval of the actor playing Mr. Big and the acceptance and protection of the fake criminal group. In some cases, these scenarios drag on, and there can be over over fifty such “scenarios” or more, but in this Nuttall case, there were only twenty-eight, which may also be a flag of either wanting the file to end, or one borne of a hurried desperation to reach the goal.
In the late 1990’s the U.C. unit became heavily involved with Major Crime teams and began to deal almost exclusively with homicide cases. since 2008 they have been involved in some 350 cases in which 95% have resulted in conviction.) These were cases where murders had been committed, the suspect had been identified by major crime investigators, and the goal of the undercover operation was to get a “confession” to the crime, often to corroborate and verify the circumstantial evidence in the case. It was an important role to play, but it was not up to this group to conduct the investigation.
The Undercover Unit’s exposure in the courts over the last ten years has led many investigators, lawyers, and academics to question whether their techniques are becoming fragile; that these techniques only work on the feeble minded, the un-connected, the neophytes of the criminal world. The unit was becoming less successful with more exposure, and several times have been called out by their “targets” as being the police. They do not talk about the cases that went wrong, nor should you ever hear about them, at least in theory.
So these two factions came together, INSET and the U.C. group, no doubt with the approval of upper management in both B.C. and in Ottawa and a decision was made that an undercover operation would be undertaken. Even though there had been no offence committed, by Nuttall or Korody, and maybe just as notable even though there was no confession being sought. This was by its very design somewhat of a fishing trip, characteristic in some ways of any “infiltration”.
The U.C. group was about to undertake an operation with no goal other than the infiltration of these two abhorrent but sad individuals, but began using a technique that was geared to obtaining specific results, a confession, a “Mr. Big”. The nature of the scenarios were a combination of a need to infiltrate, but they also began using techniques aimed at ending at a Mr. Big. This seems somewhat counter-intuitive from any investigators standpoint and could lead to confusion in the goals if nothing else. How does one aim for a confession if there is no crime? The very setup and the road they were going down was pre-destined to lead to claims of entrapment. They needed to create the crime and push the two targets toward it, the building blocks to an argument of being entrapped.
One should also point out that these types of operations can easily get into the millions of dollars in terms of cost, but there was no municipal or provincial budget oversight–INSET and the U.C. group were playing with Federal monies. (It is interesting to note that with this new found interest in terrorist files in Ottawa, INSET’s budget went from $717,000 in 2003 and in 2013, the year of this case, it was at $22.9 million.)
So the Undercover Operation began. The “hook” or “bump” into Nuttall by the undercover operators was tried and true, the old “would you help me look for my sister” line to act as a public introduction. Nuttall fell hook line and sinker, which in some ways should also have been a red flag, a warning signal as to Nuttall’s mental capacity and competence. He eventually became so enamoured with the operator that he even declared his love for him.
Without going into all the scenarios that were employed, suffice to say that Nuttall throughout: talked of extravagant plans, made ridiculous demands, was unable to focus, could not carry out the simplest of tasks. He went from wanting to kill civilians, to wanting to kill soldiers, from wanting to blow up a nuclear submarine, to blowing up a passenger ferry but not wanting to kill children or innocents. He wanted to blow up the “train” to Victoria, so was quite disappointed to find there was no train that went to Victoria.
He went from wanting to build rockets, and getting access to sniper rifles, to eventually settling for the building of pressure cooker bombs just like the Boston bombers. This more controllable goal was pushed at the suggestion and direction of the Undercover group.
The U.C. “shop” continued to focus on getting Nuttall to write down his plans, no doubt believing that it would be corroboration of his intent and capabilities. Nuttall claimed to have those plans on his laptop, then discovered to not having plans, to being asked to write down plans, and then not being able to physically complete them.
His goals went from freeing Omar Khadr, to forcing the American army out of Afghanistan, to having all the prisoners released from Guantanamo. He was “in training” when he was playing “paintball”. His goals, dreams, needs and plans changed daily. He could not carry out a common grocery list even when directed by the UC operator.
So it was borne out of necessity that the Undercover group began to direct him. (It should be noted that the primary undercover operator despite all of the above, testified that he did not believe that Nuttall was “incapable”).
Once the police begin to direct, all the police personnel involved should have been aware that they were no longer toying with “entrapment” they were now within its grasp. And as early as May 2013 some opinion inside the U.C. shop began to talk about the fact that they were exerting too much influence through the primary undercover operator. One of the investigative team Sargents argued that Nuttall and Korody did not represent a “risk”. Sources say that this Sargent ended up leaving the investigative team, turning over the running of the file to someone with more intensity to push this file.
So it carried on, with Nuttall carrying on his delusional path. At one point he even breaks down crying because he can not write out a plan as he had been directed. He fears the wrath of the undercover operator because he couldn’t do what he was told, even on one occaisson bringing a “marble gun” for protection. After finally settling with a plan, albeit unwritten, to blow up the Parliament buildings in Victoria.
Nuttall insists on videotaping a “recce” to check out the target area discreetly. He is promptly seen talking to police, tourist guides, and using his own name, clearly not having learned the lesson that he should be somewhat covert.
Nuttall emerges from this mayhem, with an agreement with the undercover team to build pressure cooker bombs, just like the Boston brothers. The undercover team manages to control this process, to the point that they were able to make them inert and give them back to Nuttall, so they could be buried in the bushes outside the Victoria Legislature buildings. (They also forget to get the appropriate warrant to give the “bombs” back to Nuttall with a minute trace of C4 and the courts pointed out that the RCMP had in fact broken the law)
Nuttall gets cold feet as the moment nears, to the point of asking for a “spiritual advisor”, and refers to dying like a “martyr”. Graciously, he says he would bequeath his paint gun to the undercover operator for future training purposes.
In the end of this farcical operation, they are allowed to bury the bombs in the “bushes”, and then went and sat in a hotel room waiting for the news to report their feat. Of course, they were bitterly disappointed when the news did not erupt.
With little trouble they were then arrested.
Equally surprising in this tale of misdeeds is that at the end of it all, the police managed to convince the Crown to lay charges.
And then, after the stay of proceedings placed by the trial Judge, The Crown had the audacity to appeal it, spending more tax dollars on clearly a fruitless mission. The Crown, argued in its appeal, that the two suspects were “completely responsible for crafting and carrying out the plan…and the RCMP operation was not manipulative”. It must have been hard keeping a straight face in their applications. There may have been mistakes made by the trial Judge in terms of some of the more legal issues, but no one could possibly argue that this was not entrapment.
The trial judge, Justice Catherine Bruce rightly said that the undercover operator “actually propelled Nuttall to a more extreme view”. She said the RCMP “instigated and skillfully engineered the very terrorist act committed by the defendants”. The RCMP “induced the commission of an offence..without reasonable suspicion or while acting mala fides”. One can forgive the odd Mountie from not understanding “entrapment”, but how do a group of lawyers not understand it.
So where does this leave us. After millions of dollars spent in lawyers and police operations and the errors in judgement will there be repercussions? Obviously not, this is government, this is the infallible RCMP, after all they are not holding anyone responsible for hundreds of millions of dollars in sexual harassment claims.
It should raise questions, not just confined to the individual officers, but to the upper echelons, the supervisors who read and approved of these actions. We have a multi-layered and dysfunctional RCMP in terms of investigational mandates and recognition as to what constitutes a security threat. Sources are telling me that there is another three year long operation, which has also fallen under the same spell as Nuttall. That is trying to find suspects where none exist.
All of this is amplified by an Ottawa which has a severe disconnect with those officers on the ground who are conducting the investigations.
Miscommunication and understanding was compounded by a dogmatic and unbendable and unimaginative Undercover group who continue to use outdated techniques, not being able to recognize that the circumstances should not have been addressed by another “Mr Big”.
It was hurt by an intransigent investigative team, who seemed incapable of understanding entrapment, who just let the machine grind forward. One does not believe for a minute that the officers involved were ill-intentioned. They were struggling inside some vague criminal laws, were lacking sound guidance from Crown along the way and needed a fuller appreciation of the level of sophistication needed to prove an act of terrorism.
There is a monumental lack of understanding that a terrorist act is a political act. There is a 120 year old saying that “One man’s terrorist is another’s freedom fighter”. Nuttall and Korody were neither.
Was Mr. Nuttall and Ms Korody dangerous individuals? To be sure. There are lots of dangerous people out there, just read Twitter.
There is a layered dysfunction in the RCMP. It is an organization consumed by gender and identity politics while a tornado of police needs and demands circle. Always trying to be the one fits all agency, all things to everyone. Doing everything, but not anything well. Whether it be white collar crime, child or internet crime, it never admits its failure, nor do they admit that they have been pulled in every direction while the government ignores or exacerbates chronic manpower and resource issues. They have grown or have been stretched too far, now too big to succeed. Only strong leadership and an honest appraisal of the capabilities and needs of this organization will pull it out of this flat spin.
*All the quotes in this story can be found from the judgement itself listed here: 2018 BCCA 479.
**Also, in terms of full disclosure, the author has had experience in major crime cases, and specifically in major crime cases, where an undercover operation which used the Mr. Big was employed. Some were successful, some were not. The author also was a member of Security Service which then became CSIS.
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