Editorial: Preventing terrorism is hard for police

The case against two would-be terrorists who planned to bomb the B.C. legislature on Canada Day has been dismissed. In 2013, John Nuttall, originally from Victoria, and his common-law wife Amanda Korody planted what they believed were explosive devices on the grounds of the building. They were tried and found guilty of terrorism-related charges.

But the conviction was set aside the following year, after a B.C. Supreme Court judge ruled that the police had entrapped the couple.

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Specifically, Justice Catherine Bruce found that undercover officers led the pair through a step-by-step process of finding suitable canisters and building the bombs. In fact, the “bombs” were fake. They contained no explosive.

The judge called this a “manufactured” crime, noting the couple were heroin addicts who could never have accomplished such a sophisticated feat on their own.

The Crown appealed, but last month, the ruling was upheld by the B.C. Court of Appeal, which called the original conviction a “travesty of justice.”

The dismissal illustrates one of the difficulties facing law enforcement. Terrorism is a challenge to investigate, partly because it hides in the shadows.

Law-enforcement agencies often pick up chatter among disaffected groups that might amount to something or could be mere bluster. To determine which threats are real, undercover officers might have to employ deception to penetrate such groups.

Although it’s controversial, there is case law on this tactic. The Supreme Court of Canada has ruled that police may use trickery, but certain conditions must be met.

First, officers can provide someone with an opportunity to commit a crime, but only if they have grounds to believe the person has already engaged in criminal activity or suspect he or she is likely to. Second, they may not go beyond providing an opportunity and actively induce the commission of an offence.

In this instance, the appeal court found that the police did have legitimate grounds for suspicion about the couple. That meets the first test.

But the court also ruled that the degree of deception involved amounted to an inducement to commit a crime. The ruling was based on the degree of assistance the police provided in assembling the fake bombs. Basically, they did it themselves. That fails the second test.

While this is no simple matter, there are reasons for concern here. Crown counsel certainly believed the police had acted appropriately.

In addition, Nuttall and Korody actually planted the devices, an act that, had the bombs been real, would almost certainly have caused major loss of life. They appeared comfortable with that thought.

Such a disturbing intent should count for something. True, the bombs were fake. But the couple did not know that.

Another way of saying this is that the degree of deception permitted law-enforcement agencies should be judged against the seriousness of the prospective crime. In this case, it’s hard to envisage anything more damaging than an attack on hundreds of innocent people at the seat of government.

In the end, we come down to a balance of interests — the need of the community to protect itself in an age of terrorism, versus the right of individuals to fair treatment under the law.

It is difficult to say where the balance lay in this case, because we do not know the nature of the suspicions that led police to the couple. Justice Bruce dismissed them; the appeal court believed they were valid.

What we do know is that Nuttall and Korody are now free to go wherever they please.

If the upper courts ruled correctly, that is a fair outcome.

Where this leaves law-enforcement agencies is another matter, however. A ruling of this kind might have a chilling effect on the way undercover investigations are conducted.

That is a good thing if police powers are being abused. It is less comforting if our defence against terrorism is weakened.

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