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Entrapment Defence Sets Free Two in Terrorism Case

A British Columbia couple convicted of terrorism charges have had their verdicts tossed out in a court decision that criticized the investigators for their "egregious" conduct in manipulating naive suspects into carrying out a police-manufactured crime. In R. v. Nutall, Justice Bruce concluded that without the heavy-handed involvement of undercover officers, it would have been impossible for Nuttall and Korody to articulate, craft and execute a terrorist bomb plot. Ultimately, their role in carrying out the plan was minuscule compared to what the police had to do. The judge noted that "[i]t was the police who were the leaders of the plot."

Terrorism related offences (financing, participating, facilitating, instructing, harbouring) are a relatively recent development in Canadian law. The number of prosecutions, however, have been growing. Although the defence of entrapment has a longstanding history in Canada it had never been successfully applied in a terrorism case, that it until this decision.

During the trial, Bayne Sellar Boxall partner Ian Carter commented on the potential use of the defence in this case to the Canadian Press:

"If they lose, to be honest, it's just going to be another in a long line of entrapment losses for the defence," said Ottawa-based defence lawyer Ian Carter.

He referenced two examples: the 2010 case of a member of the so-called Toronto 18 terrorism plot and the 2014 trial for Mohamed Hersi.

But a win would be "a significant development," he said, likely emboldening other similarly accused suspects to argue entrapment and prompting a review of police investigation techniques.

Justice Bruce, in her ruling, specifically commented that there is clearly a need to curtail the actions of police ... to ensure that future undercover investigations do not follow the same path. It appears that the decision will breathe new life into the old entrapment defence, at least in the context of terrorism prosecutions.

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