Simon Fraser University criminology professor David MacAlister said John Nuttall and Amanda Korody face an uphill battle in convincing the court they would not have carried out their thwarted attack at the provincial legislature without help from police.
Nuttall and Korody were accused of planting homemade pressure-cooker bombs on the legislature grounds on Canada Day two years ago. Jurors found them guilty on Tuesday after three days of deliberations, but the judge refrained from registering their convictions until the entrapment arguments are heard in court.
Entrapment is a relatively rare defence that arises when police go beyond providing suspects with an opportunity to commit a crime and actually encourage the offence, said MacAlister, describing it as an abuse of process.
He said that in deciding whether police entrapped Nuttall and Korody, the court will consider a number of different factors including the nature of the crime, the persistence of the officers involved and the type of inducements they used.
"Were they deceiving the people? Were they using fraud or tricks? Or were they offering rewards giving such as money?" MacAlister said.
Whether police fostered a friendship, which they then exploited, is also a consideration, he added.
"They're going to look at the extent to which the police were involved in all of this compared to the accused," he said. "It's a bit of a balancing act, to look at whether or not the police behaviour was out of proportion relative to what the accused actually did."
MacAlister brought up the additional consideration of whether the accused had any particular vulnerabilities exploited by the Mounties, including mental disabilities.
Jurors heard evidence during the trial that both Nuttall and Korody were recovering drug addicts living on welfare in a basement suite and that the police believed Nuttall may be developmentally delayed.
With their verdict delivered, the jury's role is complete as the case moves into its second stage next month regarding the entrapment issue. The couple's defence lawyers have said they'll try to convince the judge that their clients' crimes were manufactured by police.
"It's not really whether the accused is guilty or not," MacAlister said. "It's a matter of whether or not the police conduct is drawing a negative public perception on the criminal process."
The fact that entrapment is decided after a guilty verdict is a necessary part of the system, said former lawyer and Simon Fraser University criminologist Joan Brockman.
"When it comes to entrapment, the trial judge needs all the evidence. It makes sense to have your jury trial (first) to decide on whether or not the accused actually did what they allegedly did," she said.
"It's very difficult to do it in reverse," she said. "That would be putting the cart before the horse."
Nuttall and Korody could go free if their lawyers' entrapment arguments are successful.
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