07/10/2013 12:12 EDT | Updated 09/09/2013 05:12 EDT

The Ludicrous Defence of Canada Day Terror Suspects


I don't begrudge Tom Morino his duty to provide a full and robust defense for his client, home-grown terror suspect John Nuttall. However, a recent claim that Nuttall and his co-conspirator Amanda Korody may have been entrapped into a plot of mass murder, the existence of which they do not deny, is simply ludicrous.

Morino has said that he'll withhold judgment on the entrapment issue until he's "seen the materials" but he shouldn't. He should know quite well that unless those materials include video of uniformed RCMP officers holding a gun to Nuttall's head and screaming "No, more nails!" as he constructs his instruments of mass murder, there is absolutely no chance whatsoever that his clients will receive leniency with an entrapment defense.

Many people misunderstand what entrapment is. If a police officer offers to sell you drugs, and you accept, that is not entrapment. If they have reason to suspect you want to buy drugs, come right up to your door and offer your drugs, that's not entrapment, either. If you initially turn them down and they say "Are you suuuuuure?" and then you buy the drugs, that's still not entrapment. In fact, in Canada entrapment it utterly useless in all but the most exaggerated cases of police misconduct. If the police had a reasonable suspicion that these two would be plotting any sort of sectarian violence, it is essentially impossible for entrapment to be an issue.

The buzz-phrase surrounding this case is the "Mr. Big" operation, a questionable technique which sees officers pose as underworld bosses to coerce confessions about past crimes out of suspected criminals. However, the Mr. Big technique is something of a non-sequitor in this case, since the major legal problem with the confessions it elicits is not fundamentally related to entrapment, but rather to reliability; confessions offered to curry favour in a criminal organization are often totally fabricated - but you can't lie your way into having multiple improvised explosive devices.

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In this case, which involves two utter buffoons who likely had no prior crimes to confess beyond half-botched shoplifting capers, the intent would have been different: to induce them to cross a line they'd been approaching for some time, and to do it in a reasonably controlled environment. There is only one real possible application of the Mr. Big template to this case, and it is a potentially quite worrisome: did Canadian law enforcement pose as radical Muslim agents, Al'Quaida or otherwise, to support these two in their thoughts about blowing up innocent Canadian revelers?

Before going on, we should remember that the sole source of speculation on the use of this investigative technique is the defendant's own lawyer. All reports have referred to these bombs as genuine explosive devices, but if police were even mildly directing their efforts I would expect them to somehow hamstring the weapons to avoid any possible mishaps. On the other hand, if the police really were involved in supplying fake support from fake extremist mullahs, that might explain why they seem so perfectly sure that the two suspects were not in contact with genuine Al'Quaida agents.

If the Mr. Big technique was used, that may muddy the ethical waters of this case, but it leaves the legal ones crystal clear. In Canada, entrapment considers whether an average individual could have been convinced to commit the crime; it's easier to plead entrapment if you were induced to steal a dollar from a millionaire's wallet than from a charity for orphans. As a result, there is essentially no amount of ideological nudging beyond outright police-sponsored brainwashing that could possibly meet the legal requirements for entrapment with regard to the mass murder of civilians.

Some self-confessed friends of the two would-be Boston Bombers (Vancouver Vandals?) have said that there's no way these two burnouts could have come up with either the money or technical wherewithal to execute a plot like this -- but as regards to entrapment, it won't matter if the nails in the bombs are found to have come from the RCMP commissioner's front porch. These two set out to blow up bombs amid crowds of Canada Day celebrants; neither the law, nor basic ethical consideration, gives one half of a damn where they got the weapons necessary to do it.

Now, that's not to say that there are no worrisome elements, here. If indeed law enforcement identified these two for their leanings and decided to push, we will always be left wondering whether they might otherwise have whiled away their days as harmless, pot-addled morons lurching from one bankrupt ideology to the next. In the case of, say, break-in entering, or grand theft auto, that question would easily be enough to warrant a look at entrapment.

In a case such as this, however, it absolutely is not.