IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: R. v. Nuttall, 2016 BCSC 1404

Date: 20160729

Docket: 26392

Registry: Vancouver

Regina

v.

John Stuart Nuttall and Amanda Marie Korody

Restriction on Publication: Pursuant to ss. 486.5(1) and 486.5(9) of the

Criminal Code there shall be no publication, broadcast or transmission

in any way of any information that could identify any undercover police

officers including any pseudonyms used by the undercover police officers

involved in the investigation of the Accused. This publication ban applies

until further order of the Court. These Reasons for Judgment comply with this publication ban.

These Reasons for Judgment have been edited for publication purposes.

Before: The Honourable Madam Justice Bruce

Reasons for Judgment

Counsel for the Crown: Peter A. Eccles

Sharon K. Steele Counsel for the Accused, John Stuart Nuttall: Marilyn E. Sandford

Alison M. Latimer Counsel for the Accused, Amanda Marie Korody: Mark R. Jetté

Scott Wright Place and Date of Trial/Hearing: Vancouver, B.C.

July 13-15, 20-24, 27-29,

October 19-21, 28-30,

November 2-6, 2015

January 4-8, 11-15, 18-22,

25-27, February 1-4, March 1, 14,

April 18-19, June 6-10, 13-17, 2016 Place and Date of Judgment: Vancouver, B.C.

July 29, 2016





[1] On June 2, 2015, Mr. Nuttall and Ms. Korody were convicted by a jury of a number of terrorism offences arising from the planting of explosive devices on the grounds of the Legislature in Victoria on July 1, 2013. Those verdicts have yet to be entered as the defendants have applied for a stay of proceedings based on the conduct of the RCMP during its undercover investigation into the offences with which they were ultimately charged.

[2] The defence application for a stay is based on entrapment and a broader allegation of abuse of process by the RCMP. The abuse of process claim includes allegations that the RCMP committed criminal offences in the course of the investigation without authorization under s. 25.1 of the Criminal Code; and, that it interfered with the religious liberty of the defendants contrary to s. 2(a) of the Charter of Rights and Freedoms. The defendants contend that the undercover operation was a serious violation of the principles of R. v. Mack, [1988] 2 S.C.R. 903, and that the RCMP’s failure to respect the boundaries of permissible police conduct resulted in a police generated crime.

[3] The Crown opposes the application and responds that at all times the prevailing objective of the RCMP was to prevent a terrorist act and ensure public safety. It maintains that at no time did the conduct of the police in dealing with the defendants – two aspiring terrorists committed to violent jihad – ever amount to entrapment. Rather, the undercover operation was an innovative and effective means of investigating serious terrorism offences, which, by their nature, provide no other viable means of investigation. Moreover, the Crown says that the conduct of the RCMP was neither criminal nor in violation of the defendants’ religious freedom.

[4] The RCMP’s interest in Mr. Nuttall arose from a tip given to them by CSIS in early February 2013 that indicated he was attempting to purchase potassium nitrate, a precursor to an explosive substance, at local pharmacies. Over the five months between February 1, 2013 and July 2, 2013, the RCMP conducted an investigation through surveillance and an undercover operation, code-named Project Souvenir, into possible terrorist activities by Mr. Nuttall and his common law spouse, Ms. Korody. The operation involved 28 scenarios ranging from a single telephone call to complex encounters spanning several days. The operation culminated with the planting of three inert explosive devices made from pressure cookers on the grounds of the Legislature in the early morning hours of July 1, 2013.

[5] The defendants were jointly charged on a direct indictment with four counts of terrorism-related offences. Count 1 alleged that the defendants conspired to murder persons unknown for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code. Count 2 alleged that the defendants conspired to commit the indictable offence of placing an explosive in or against a place of public use, with intent to cause death or serious bodily injury, for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code. Count 3 alleged that the defendants knowingly facilitated a terrorist activity contrary to s. 83.19 of the Code. Count 4 alleged that the defendants committed the indictable offence of making or having in their possession an explosive substance with intent to endanger life or cause serious damage to property for the benefit of, at the direction of, or in association with a terrorist group contrary to s. 83.2 of the Code.

[6] The terrorist group was particularized as Mr. Nuttall and Ms. Korody. The Crown did not allege any other members of the conspiracy. There was also only a single conspiracy alleged; that is, to plant explosive devices on the grounds of the Legislature in Victoria to murder persons unknown or cause serious injury to persons unknown.

[7] The trial proceeded before a jury commencing February 2, 2015, and at the conclusion of the evidence the defence applied for a directed verdict regarding Count 3, facilitation of a terrorist activity. I granted the defence application and directed the jury to acquit on Count 3: R. v. Nuttall, 2015 BCSC 943. In addition, I granted a defence application for a special instruction on Counts 1 and 2 of the Indictment based on a finding that the counts were duplicitous: R. v. Nuttall, 2015 BCSC 962. In particular, the jury was instructed that if they convicted the accused on Count 1, or the lesser included offence, they were not to address Count 2. If they acquitted on Count 1, they must go on to address Count 2.

[8] On June 2, 2015, the jury convicted Mr. Nuttall and Ms. Korody on Counts 1 and 4 of the Indictment. The Court directed a conditional stay of proceedings with respect to Count 2 of the Indictment.

[9] During the trial there was little dispute as to what had occurred during the police investigation into the defendants’ activities because most of the interactions between Ms. Korody and Mr. Nuttall, as well as the police interactions with the defendants, were audio and/or video recorded. The jury was provided with a lengthy chronology of events containing a detailed description of the words and acts of the defendants and the undercover police officers during the investigation. I have considered the evidence contained in the chronology in my assessment of the present application in addition to the evidence heard during the jury and the entrapment portions of the trial.

[10] During the entrapment voir dire, the defence called many of the police officers who took part in Project Souvenir. Officer A was the primary undercover officer; he was in contact with the defendants throughout the operation. Officer D and Officer C also played roles in the undercover operation. Cst. Mokdad provided expertise on the Islamic faith to the investigative team through the team leader and to Officer A directly. Cpl. Matheson was the cover officer. The original command triangle consisted of Sgt. Kalkat, Cpl. McLaughlin and Cpl. Sovdi. Cpl. McLaughlin was later replaced by S/Sgt. Kassam. Supt. Bond was the overall supervising officer for the Project until the final weeks in June 2013 when he was replaced by Insp. Corcoran.

[11] Although none of the police witnesses could be characterized as hostile, the defence position was severely critical of the officers’ conduct during the investigation. Thus it was clear that the officers were adverse in interest to the defence. As a consequence, I permitted substantial latitude in the direct examination to ensure the defendants were accorded a fair trial. Conversely, I counselled the Crown that it should refrain from leading the officers in cross-examination where the evidence was in dispute because such testimony would have little credibility in light of the sympathies of the witnesses with the Crown’s position. Further, at times during the cross-examination, I did not permit the Crown to lead the officers in their evidence on disputed issues in fairness to the defendants.

[12] I found that the officers who testified during the entrapment voir dire were credible witnesses for the most part, with some notable exceptions. Cpl. McLaughlin demonstrated very little recollection of events even with pointed prodding by defence counsel in his direct examination. However, when cross-examined by the Crown, he had a detailed recollection of events and demonstrated a new found memory of matters addressed in the Crown’s questions. I found the officer’s selective memory in this regard to weigh heavily against his credibility. He appeared to have a recollection of only those portions of the operation that would favour the police and their handling of the investigation.

[13] Sgt. Kalkat was also not a credible witness in general. His evidence was contradicted by Cst. Mokdad, Supt. Bond and Cpl. Matheson. It was also internally inconsistent and contrary to his written record of events. I found it astounding that he kept so few notes of meetings and conversations with his team about the project and yet purported to have a detailed recollection of the events favourable to the Crown’s position. He also used the witness stand as an opportunity to provide the Court with his opinions about the legality of the undercover investigation and often failed to direct his mind to the questions posed by the defence.

[14] Lastly, I found Officer A’s testimony during the jury portion of the trial, particularly as it related to his personal views of the defendants’ capabilities, to be incredible and unreliable. It was quite apparent that he had a personal stake in the outcome of the investigation and was not objective when relating his observations and impressions of the defendants’ acts and statements, which the Court also observed first-hand in the video and audio recordings of their encounters during the undercover scenarios.

[15] On October 17, 2012, M.C. filed a complaint with the RCMP that alleged Mr. Nuttall was espousing violent Islamic beliefs. M.C.’s immediate concern was that Mr. Nuttall claimed to have killed a Jewish woman. M.C. also reported that he believed Mr. Nuttall had mental health issues. M.C. advised the police that Mr. Nuttall had converted to Islam in 2011 and had been telling people he wanted to fight a holy war in Afghanistan. M.C. learned from other people that Mr. Nuttall frequented a mosque in Vancouver and had espoused radical extremist views. When the police attended Mr. Nuttall’s residence to discuss M.C.’s complaint, he told the police that he was joking with M.C. At the time of the police visit Mr. Nuttall was intoxicated. The police found no evidence of any murder; they noted no signs of a struggle inside Mr. Nuttall’s residence and there had been no reports of shots fired in the neighbourhood.

[16] After the police left Mr. Nuttall’s residence, M.C. called the RCMP again to report that Mr. Nuttall left him messages calling him a traitor. He was careful to note that Mr. Nuttall had not threatened him. When the police returned to Mr. Nuttall’s residence to question him about the call to M.C., he was again intoxicated. Mr. Nuttall said he wanted to know why M.C. was calling the police and that it was M.C. who was the terrorist and wanted to do jihad. The police were sufficiently concerned about Mr. Nuttall’s mental health to call Car 67 for an assessment.

[17] The next day a Car 67 officer and a psychiatric nurse attended Mr. Nuttall’s residence. The nurse spoke with Mr. Nuttall, who by then was sober and calm, and concluded he was not suffering from a mental illness. The nurse also concluded Mr. Nuttall might be developmentally delayed because he spoke slowly and had difficulty understanding what the officer said to him.

[18] The M.C. complaint was flagged by the Surrey RCMP and eventually it reached the Integrated National Security Enforcement Team (“E-INSET”), a division of the RCMP that deals with criminal activities that pose a risk to national security. The complaint came to the attention of Insp. Bond (later promoted to the rank of superintendent), who at the time was a monitoring officer in this division. Supt. Bond assigned Cst. Pannu to open a file on the complaint in the Secure Police Reporting Occurrence System (“SPROS”) and determine whether there was a need for a follow-up investigation by E-INSET. Cst. Pannu determined that no further investigation was necessary and closed the SPROS file.

[19] As part of his duties, Supt. Bond regularly met with a local CSIS representative to “de-conflict” or, in other words, to ensure their respective investigations did not come into conflict. On November 2, 2012, Supt. Bond passed on information about the M.C. complaint to the local CSIS representative. Later, during another routine de-confliction meeting on December 20, 2012, CSIS asked for the actual occurrence reports (SPROS files) on the M.C. complaint and an earlier complaint from July 2012 of a similar nature. At this time CSIS had only “unverified general concerns” about Mr. Nuttall.

[20] On January 21, 2013, Supt. Bond learned that RCMP National Headquarters E-INSET Division had received a disclosure letter from CSIS on January 16, 2013, that indicated it had unverified general concerns that rendered Mr. Nuttall a “threat to public safety”. A disclosure letter cannot be used in legal proceedings and relates to conduct that CSIS believes is approaching criminal in nature. Supt. Bond was made aware of the disclosure letter by Insp. Watts from Headquarters E-INSET Division who reported to C/Supt. Tremblay. According to Insp. Watts, the information contained in the disclosure letter provided the same type of information about Mr. Nuttall as that contained in the M.C. complaint. However, Supt. Bond was not given a copy of the letter. Insp. Watts advised that he would be pressing CSIS for an advisory letter, which is a carefully prepared letter that is reviewed by legal counsel before being released by CSIS. It may contain highly confidential information about persons of interest to CSIS and, with authorization from CSIS, an advisory letter may be used to obtain search warrants and other intercept orders.

[21] Supt. Bond was briefed on the July and October 2012 complaints about Mr. Nuttall and, on January 24, 2013, he met with the local CSIS representative who advised that Mr. Nuttall might be a recent Muslim convert who was attempting to recruit others and might be capable of violence. CSIS disclosed that it was investigating Mr. Nuttall, but it did not disclose to Supt. Bond any specifics about the type of techniques they were using. Nor did CSIS identify its source of intelligence on Mr. Nuttall.

[22] During the latter part of January 2013, Supt. Bond repeatedly requested additional disclosure from CSIS regarding the nature of its concerns about Mr. Nuttall. What the RCMP wanted was an advisory letter that they could use as a foundation for commencing an investigation into Mr. Nuttall’s activities. On January 29, 2013, Supt. Bond had the SPROS files from an earlier complaint in July 2012 (which involved a neighbour claiming she had overheard Mr. Nuttall speaking on the phone about blowing up Islamic countries) re-opened along with the M.C. October 2012 complaint. He instructed the Special “O” unit to organize surveillance of Mr. Nuttall to commence the following week. In particular, Supt. Bond instructed that Mr. Nuttall’s activities be monitored to determine if he was engaged in criminal activities or posed a national security risk and, if so, what investigative techniques beyond surveillance were advisable.

[23] On February 1, 2013, Insp. Ryan from RCMP National Headquarters called Supt. Bond to inform him that an advisory letter was being prepared and it would indicate that Mr. Nuttall was attempting to acquire precursors to explosive substances. He also indicated that CSIS currently had coverage on Mr. Nuttall. Later that day, CSIS confirmed that it had more than one investigative technique involved in its coverage of Mr. Nuttall and one of these was physical surveillance. Supt. Bond agreed not to pass this information on to other officers in E-INSET; however, the existence of CSIS surveillance became apparent to most of the investigative team early on in the project. Thereafter, Supt. Bond ensured that RCMP surveillance did not conflict with CSIS surveillance of Mr. Nuttall. RCMP surveillance began the following day.

[24] On February 2, 2013, Supt. Bond ordered E-INSET to commence an investigation into Mr. Nuttall’s background and associates. At that time he appointed Cpl. Drummond as the lead investigator and E-INSET began collecting background information. On February 6, 2013, Supt. Bond replaced Cpl. Drummond with Sgt. Kalkat as the team commander for the investigation. Sgt. Kalkat testified that Supt. Bond advised him at the outset that there was no evidence to suggest that Mr. Nuttall posed an imminent threat. Supt. Bond said this view was based on the information that CSIS had disclosed to him. Nor did the RCMP have any evidence that Mr. Nuttall was engaged in criminal activity apart from what was contained in the CSIS advisory letter.

[25] Cpl. McLaughlin was appointed the primary investigator and Cpl. Sovdi was appointed the file coordinator. Along with Sgt. Kalkat, these officers formed the command triangle for the investigation. However, Sgt. Kalkat was clearly in charge of the investigation and directed the other officers.

[26] Supt. Bond was extremely busy during Project Souvenir because not only was he a monitoring officer for all of E-INSET’s investigations, but he was also the Assistant Criminal Operations Officer in Charge and had many administrative and budgetary duties. As a consequence, Sgt. Kalkat essentially worked independently on Project Souvenir with the other members of the command triangle. Sgt. Kalkat reported to Supt. Bond on the ongoing operation; however, the sergeant made all of the decisions affecting the project.

[27] As monitoring officer, Supt. Bond was responsible for reporting on the operation to senior officers in E-INSET Division and at RCMP National Headquarters. At the local level he reported to A/Commr. Rideout and C/Supt. Abbruzzese. At the national level he reported to C/Supt. Tremblay, Director General for Criminal Operations at National Headquarters of the RCMP, who instructed Supt. Bond “to work hard on this file and treat it as a priority investigation”.

[28] To stay up to date on the project, Supt. Bond was orally briefed by Sgt. Kalkat and he read the C237 reports drafted by Sgt. Kalkat during the operation. These reports contained a summary of the operation and the various scenarios. There were also weekly meetings with the team leaders and senior staff for all investigative teams where Supt. Bond received updates on all of the active investigations. While senior officers at National Headquarters, as well as Supt. Bond, had access to the SPROS files that contained all of the transcripts from Project Souvenir, none of these officers accessed these original documents during the undercover operation. Supt. Bond testified that he and his superior officers relied on the C237 report summaries.

[29] On or about February 8, 2013, Insp. Corcoran took over Supt. Bond’s responsibilities as monitoring officer while the superintendent was on leave for about ten days. Insp. Corcoran took over Supt. Bond’s duties entirely on June 2, 2013 and continued to supervise the project until its conclusion. Both Supt. Bond and Insp. Corcoran acted as the CSIS contacts on the project and they continued to de-conflict with CSIS regarding their parallel operations. This was done at weekly meetings and was almost exclusively a one-way sharing of information because CSIS rarely revealed its intelligence about Mr. Nuttall. Supt. Bond ensured CSIS knew about the contact between Officer A and the defendants as the operation progressed.

[30] Insp. Corcoran had been in charge of E-INSET’s community outreach program for many years and he had worked with Muslim groups to educate them about the signs of radicalization in order to make them more aware of who might be planning terrorist acts. He testified that in Canada and within the RCMP, in particular, there are no de-radicalization programs. In his view these types of programs have not been very successful in the Middle East. Steps were taken by CSIS to de-radicalize some of the people involved in the Toronto 18 case but the RCMP did not participate in that effort. He testified that currently the RCMP is developing a de-radicalization program.

[31] In February 2013, Insp. Corcoran read the operational plan prepared by Sgt. Kalkat (discussed below) and learned about the October 2012 complaint made by M.C. about Mr. Nuttall’s radical views of Islam and the subsequent police attendances to his residence. The inspector identified several risk factors in this complaint, which included a recent Muslim convert, talking about violent criminal activities and using terrorist language, as well as reaching out to like-minded people.

[32] Insp. Corcoran was never briefed on the discussions about the de-radicalization strategies that were spearheaded by the undercover shop during Project Souvenir. He essentially relied on Sgt. Kalkat as his main source of information concerning the project and rarely examined any original material such as transcripts of the intercepted communications.

[33] As noted, Supt. Bond ordered an investigation into Mr. Nuttall’s background and associates in early February 2013. A search of the RCMP databases revealed the following information about the defendants.

[34] A criminal record check indicated that Mr. Nuttall had been sentenced for drug-related offences in 1995 and for mischief and carrying a concealed weapon in the same year. In 1996, he was sentenced to 12 months’ imprisonment for kidnapping and robbery, and 18 months concurrent for aggravated assault. (During a scenario on May 4, 2013, Mr. Nuttall told Officer A that he had not committed these crimes and had taken the blame to show loyalty; he refused to point the finger at his co-accused.) In 1997 he was sentenced for assault. There was a gap in the record until 2002 when Mr. Nuttall was sentenced for failure to comply with a recognizance, mischief, assault and failure to comply with an undertaking. The mischief conviction involved Mr. Nuttall vandalizing a pharmacy when he was denied methadone because he was high on drugs. The last conviction on his record was in March 2003 for robbery; he received an 18-month conditional sentence order.

[35] A search of PRIME revealed police interaction with Mr. Nuttall from 1995 to 2010. Most of the police attendances involved intoxication or public disturbance. The PRIME reports noted that Mr. Nuttall was unable to control himself due to drug dependence and he had an historic head trauma. Some earlier police contacts in 2002, 2003 and 2005 indicated Mental Health Act concerns. The incidents began to involve Ms. Korody in or about 2009. The incidents in 2009 and 2010 occurred when Mr. Nuttall and Ms. Korody were homeless and living on the streets of Victoria.

[36] In July 2010, the police became involved due to a dispute between Mr. Nuttall and a third party. There were also earlier incidents in 2010 where Ms. Korody and Mr. Nuttall were transported to hospital due to drug and alcohol usage. In August 2010, the police attended due to reports that Mr. Nuttall was hitting Ms. Korody; both of them were intoxicated. There were numerous additional reports and police attendances that involved the defendants being intoxicated at a residence or in public.

[37] An investigative log from the SPROS file indicated that there were mental health concerns raised by Mr. Nuttall’s behaviour in 2009:

NUTTALL has exhibited a capacity for irrational behaviours that suggest mental health problems. Victoria General Occurrence VI 2009-22443 refers to another assault file in which NUTTALL attacked the complainant and his vehicles. NUTTALL had attacked the complainant’s Mini Cooper with his bare fists. He also damaged the hood of the complainant’s Dodge pickup by repeatedly head butting it. [Emphasis added.]

[38] In addition, the police obtained personal data about the offenders. Mr. Nuttall was born on October 12, 1974. Although at one time Mr. Nuttall had a driver’s licence, in 2013 it was under suspension and there were large outstanding fines. Ms. Korody was born on March 28, 1983. She had no criminal record and the only police incidents involving Ms. Korody were the ones noted above with Mr. Nuttall. No other police database had any information about Ms. Korody or Mr. Nuttall. The Canada Border Services Agency had no files on either of the defendants. Sgt. Kalkat testified that there was no record of either Mr. Nuttall or Ms. Korody ever having a passport or leaving the country. He also testified that during the undercover operation the police learned that Ms. Korody had no form of identification. At some time prior to August 2012, Ms. Korody had asked her mother to help her get some identification, and photocopies of her SIN card, care card and B.C. identification card were located in the defendants’ apartment after their arrest in July 2013.

[39] Two police incidents in 2012 were recorded on the Surrey RCMP files. As noted earlier, in July 2012 Mr. Nuttall’s neighbour contacted the police claiming that he could hear Mr. Nuttall speaking loudly on the telephone about blowing up Islamic countries. When the police arrived the complainant was intoxicated and not fully rational. Mr. Nuttall was calm and cooperative with the police. He let them into his home and the police observed nothing suspicious. Mr. Nuttall said he was speaking on the telephone in a loud voice because the reception was poor. No further action was taken on the file.

[40] The second complaint was M.C.’s from October 2012. As outlined earlier, a Car 67 officer and a psychiatric nurse attended Mr. Nuttall’s residence to assess his mental state. The nurse did not believe Mr. Nuttall met the criteria for apprehension under the Mental Health Act at that time but she believed he was developmentally delayed. The Car 67 officer warned Mr. Nuttall not to contact M.C. again. Although Sgt. Kalkat testified that the “delay” was only noted in regard to Mr. Nuttall’s speech, this evidence does not accord with the notes of the incident recorded in police files and briefing minutes. Further, it was the understanding of the other officers involved in Project Souvenir, including Cpl. Matheson, that Mr. Nuttall was generally developmentally delayed.

[41] There was no indication in the RCMP files that Mr. Nuttall contacted M.C. after the second attendance by the police and their warning not to contact him. The evidence at trial confirmed that Mr. Nuttall had no further contact with M.C. after leaving the telephone message in mid-October 2012.

[42] On February 2, 2013, the RCMP re-interviewed M.C. in regard to the complaint he filed about Mr. Nuttall in October 2012. Although Supt. Bond directed that all associates of Mr. Nuttall be interviewed at this early date so as not to compromise any undercover operation the investigative team decided upon, there were no other people interviewed apart from M.C. Supt. Bond testified that the police felt interviews of associates would provide limited information about Mr. Nuttall’s potential as a national security threat. He also agreed with the Crown’s suggestion that Mr. Nuttall might have discovered the police were looking into him and gone “underground”.

[43] In the second interview, M.C. said that when he met Mr. Nuttall in 2011, Mr. Nuttall was a recent convert to the Muslim faith and knew little of Muslim practices. He did not know the basics about praying to Allah. When he attempted to educate Mr. Nuttall about the Muslim faith, it became apparent that Mr. Nuttall was more interested in extremist views of the religion. M.C. said that eventually Mr. Nuttall was asked not to attend the prayer room (which was located behind a camouflage store) due to his radical beliefs. The police never investigated whether M.C. personally observed Mr. Nuttall’s behaviour at the prayer room or whether he was simply passing on information he had heard from other people. The RCMP did not contact anyone in the prayer room or the other mosques frequented by Mr. Nuttall to confirm M.C.’s statements about him. It was not until late April 2013 that Mr. Nuttall made statements to Officer A about being shunned by people at the mosques he frequented due to his radical beliefs.

[44] M.C. had not been in contact with Mr. Nuttall since October 2012 and did not know anything about his current activities. M.C. offered the opinion that Mr. Nuttall was mentally slow and simple and might have mental health issues. M.C. said that Mr. Nuttall told him that he had a brother in the Canadian army who had been killed in Afghanistan. The RCMP later learned that this was untrue. Sgt. Kalkat agreed that in February 2013, the police were still in the dark about any mental health problems that Mr. Nuttall might be experiencing. He also agreed that Mr. Nuttall demonstrated with Officer A the same openness and talkative behaviour regarding his jihadist ideas that he showed with M.C. even though he barely knew these men. The sergeant agreed that this is not the usual behaviour of a serious terrorist.

[45] The RCMP surveillance of Mr. Nuttall began on February 2, 2013, when two officers attended his basement suite in Surrey on the pretext of a domestic complaint in the neighbourhood. The officers believed that Mr. Nuttall was high on marihuana and the basement suite had an overwhelming odour of marihuana. Mr. Nuttall acted nervously and referred to the officers as armed invaders. There were authentic-looking modified paintball guns hanging on the walls, a laptop was seen in the suite, and Islamic scripts and empty liquor bottles were visible to the officers. The officers noted that an elderly female resided with the defendants in the basement suite. The RCMP later learned that this elderly woman was Mr. Nuttall’s grandmother. The purpose of this visit was to learn the identity of Mr. Nuttall’s wife. She identified herself as Ms. Korody but had no identification.

[46] Thereafter, E-INSET continued to use its own members, as well as members from the Special “O” unit, to conduct surveillance on Mr. Nuttall and Ms. Korody. To assist with physical surveillance, a pole camera was placed outside their residence in April 2013 to monitor anyone entering or leaving the basement suite.

[47] The physical surveillance of Mr. Nuttall and Ms. Korody up to the commencement of the undercover operation revealed no criminal activity or any plans to commit crimes. The defendants were not adventurous; they remained within a few blocks of their home and frequented a local gas station for coffee and cigarettes. They had no vehicle and travelled on foot within a four-block radius of their basement suite. Apart from grocery shopping, filling prescriptions at the local pharmacy, and playing paintball on the railway tracks in the rear of their residence, the defendants spent little time outside of their basement suite. The police also observed Mr. Nuttall and Ms. Korody to have a rather pedestrian schedule. When they emerged from their basement suite it was usually in the afternoon and by 7:00 p.m. most evenings they were back in their residence.

[48] On one occasion the police observed Mr. Nuttall and Ms. Korody attend a “flop house” in their neighbourhood and stand at the door for a few minutes. The police associated this residence with drugs and later learned that Mr. Nuttall and Ms. Korody were recovering heroin addicts. Mr. Nuttall was also observed buying alcohol at the local liquor store on several occasions. This behaviour was not observed after he made contact with Officer A. On one occasion Mr. Nuttall was observed in a vehicle associated to a Sudanese male who appeared to be in regular contact with Mr. Nuttall. This person (T.E.) was investigated by the police to determine if he had a criminal record or criminal associations. He had no criminal record and there was no record of any police incidents.

[49] During the physical surveillance of Mr. Nuttall and Ms. Korody, the RCMP observed that they interacted with a small number of people on an irregular basis. Ms. Korody invariably wore a niqab or a hijab while in public and appeared to act subserviently when in the company of Mr. Nuttall. They were on welfare and did not appear to have access to other financial resources. Neither of the defendants appeared to have a job or a regular schedule of any kind. By early February 2013, the RCMP had also learned that while at home the defendants commonly played video games or were otherwise occupied on their computers. One of the surveillance officers talked to the grandmother in a shop near the basement suite and she expressed the view that Mr. Nuttall and Ms. Korody were always playing video games on their computers. In addition, despite monitoring of their travel by Border Lookouts, the Canadian Air Transport Security Authority, and physical surveillance, the defendants were never observed to leave the country or even the province.

[50] During the surveillance of Mr. Nuttall shortly before February 14, 2013, the police observed him with a group of males in an area near the railway tracks behind his basement suite. The surveillance officers believed they observed the flame of a lighter and heard loud popping sounds. There was never any further confirmation of what caused the popping sounds. A police dog and handler were brought in to detect explosive residue but nothing was found. There were never any further incidents of this nature. This was the only incident of any significance reported to Supt. Bond during the early surveillance and prior to the defendants’ contact with the undercover officer. Later the police learned that Mr. Nuttall played paintball at the railway tracks with a group of males and sometimes Ms. Korody joined them.

[51] On February 21, 2013, Special “O” stopped providing surveillance for Project Souvenir and this function was transferred exclusively to the E-INSET Division. Special “O” was expensive to use and was required for other investigations. It is apparent that had there been any indication that Mr. Nuttall was an imminent threat, Special “O” would not have been re-assigned elsewhere. The project nevertheless remained a national priority for the RCMP’s E-INSET Division in Ottawa where the concern was to determine whether Mr. Nuttall posed a real risk to the public.

[52] On February 7, 2013, CSIS forwarded the formal advisory letter to Supt. Bond, which letter reported that CSIS had recently learned that Mr. Nuttall had been attempting to purchase potassium nitrate from pharmacies in the Lower Mainland on January 31, 2013. The advisory letter did not reveal a source for the tip. Potassium nitrate is one ingredient in the formula for making an explosive known as black powder. There was never any scenario designed to elicit Mr. Nuttall’s knowledge about the use of potassium nitrate in explosives.

[53] On the same day, February 7, 2013, Sgt. Kalkat instructed the surveillance team not to approach any local shop employee to gather evidence of whether Mr. Nuttall had been trying to purchase potassium nitrate. It was his belief that confirmation of the advisory letter could wait and that if the police asked questions about Mr. Nuttall in the neighbourhood shops they might risk losing the opportunity to go undercover with their investigation. He made this decision despite Supt. Bond’s direction to pursue the advisory letter with due diligence.

[54] It was not until February 18, 2013, that the RCMP obtained footage from the surveillance cameras in a pharmacy located near Mr. Nuttall’s home that showed him attending the pharmacy on the date referred to in the advisory letter. However, the RCMP’s own surveillance of Mr. Nuttall indicated that he regularly attended this pharmacy to pick up prescriptions for his grandmother. The RCMP did not otherwise corroborate or seek to corroborate the information contained in the advisory letter. Indeed, no officer reviewed the video surveillance until late in the project despite the priority given to confirming or refuting the advisory letter by Supt. Bond. The surveillance camera footage from the pharmacy did not actually reveal any evidence that supported the RCMP’s investigation of Mr. Nuttall. Insp. Corcoran testified that he at no time queried Sgt. Kalkat about the outcome of the investigation into the CSIS advisory letter and he was never briefed on this matter by the command team.

[55] On February 16, 2013, the RCMP obtained a Dial Number Recorder (“DNR”) warrant and a production order for Mr. Nuttall’s cellular telephone and landline as far back as September 2012. The landline was registered in the name of Mr. Nuttall’s grandmother. The DNR revealed that Mr. Nuttall had contact with T.E. and one of two brothers, A.A. The surveillance officers also observed Mr. Nuttall associating with these two males. Neither of the men was ever associated with criminal activity, nor was any evidence gathered to suggest that Mr. Nuttall was actively engaged in any criminal activity with them. The telephone records disclosed no evidence of any criminal activity or any plans to commit crimes. Significantly, the DNR showed no telephone contact with nurseries or pharmacies where Mr. Nuttall might have attempted to purchase potassium nitrate.

[56] At no time did the RCMP monitor the defendants’ use of the Internet to determine if they were communicating with terrorists on social media. Sgt. Kalkat testified that a general warrant for this purpose might have alerted the defendants to the RCMP investigation because they appeared to be sharing the internet connection with a third party. However, no attempts were made to obtain a mirrored copy of the defendants’ hard drives during the project. In light of the control Officer A exercised over the defendants, it would have been quite simple to obtain custody of their laptops for this purpose. In any event, a post-arrest search of the defendants’ computers did not reveal any contact with terrorists or terrorist organizations on social media sites.

[57] Despite the lack of evidence that Mr. Nuttall and Ms. Korody were engaged in criminal activity or were planning crimes, on February 13, 2013, Supt. Corcoran approved an operational plan for what was to become Project Souvenir. The operational plan was authored by Sgt. Kalkat and approved by the undercover shop through the Support Services Division. Neither the original plan nor the application to extend the operation filed in May 2013 sought authorization to include undercover officers passing themselves off as part of a terrorist group.

[58] The objectives of the investigation at that time were described as follows:

i) The objective of this investigation is to gather credible and admissible evidence to determine whether or not individual(s) are engaged in providing or collecting property for certain activities, as defined in Section 83.02 of the Criminal Code.

ii) To determine John NUTTALL’s knowledge and involvement, if any, in any criminality in relation to national security interests and the endangerment of property or life.

[59] Further, the nature of the planned investigation was summarized in the February 13, 2013 operational plan as follows:

The Operational Plan is in furtherance of gathering new evidence to confirm or refute the attempt purchase of a chemical substance or other property, by NUTTALL, and/or others, to construct an explosive device to endanger life or property. The E INSET investigative team will utilize conventional and non conventional police techniques to further advance this investigation. The primary objective of this operational plan is to undertake a UCO with NUTTALL. Given the investigation this far, NUTTALL is believed to have radical Islamic beliefs. In order to advance this investigation and gather the best form of evidence, an undercover officer should be introduced to NUTTALL, to determine NUTTALL’s involvement, if any, in any criminality in relation to National Security interests. To introduce a UCO to bond with NUTTALL through a variety of planned UC scenarios to the point where NUTTALL is comfortable disclosing his involvement, if any, with criminality as it relates to this ongoing investigation.

[60] Although one of the investigative techniques proposed for the project was to infiltrate Mr. Nuttall’s friends to secure a confidential informant, Sgt. Kalkat testified that this did not occur because of the success of Officer A’s relationship with Mr. Nuttall and because he had such a small circle of friends that any such attempt might jeopardize the undercover aspect of the investigation.

[61] Supt. Bond contemplated ongoing surveillance during the undercover operation to identify “new associates, conspirators, pharmacies, nurseries, storage units or sheds, that the target may attend to store or purchase explosive precursors”. However, the police never interviewed any of the defendants’ associates or neighbours or investigated any of the shops that Mr. Nuttall frequented to determine whether he was looking for potassium nitrate.

[62] E-INSET began addressing the command team’s progress on Project Souvenir in their weekly briefings commencing in early February 2013. These meetings usually included the investigative team for the project and later included members of the undercover shop who were responsible for planning the scenarios once the project was operational.

[63] From the outset of the planning for Project Souvenir, it was apparent that the RCMP at the National Headquarters level considered the investigation to be urgent and a national priority. Senior officers at RCMP Headquarters E-INSET Division were regularly briefed on the progress of the investigation. In an email dated February 28, 2013 to Cpl. Matheson, Sgt. Kalkat underlined the priority to be given to Project Souvenir and the unusually active role the command team would have in formulating scenarios:

I am hopeful we will develop a scenario tomorrow and can drive this investigation forward, as the speed of the investigation has been hampered. I recognize our people, operators, cover, my team, have commitments, however, this is a priority investigation not only for E INSET but also for the National Security Program from Ottawa HQ. We are all dedicated and committed to bringing the investigation to a successful conclusion. We look forward to meeting tomorrow to actively participate and engage in the development of the next scenario.

[64] It was clearly out of the ordinary for the command team to exercise this level of control over the development and pace of scenarios by the undercover shop. As Project Souvenir progressed, the command team took extraordinary measures and assumed primary control over scenario development in place of the undercover shop.

[65] On February 21, 2013, E-INSET was granted approval for the operational plan by Supt. Slinn, RCMP National Headquarters, for the period up to May 22, 2013. The approval conditions included the designation of Cpl. Matheson as responsible for the safety and security of the undercover operators as well as the direction of the undercover portion of the operation. The approval also required the police to obtain permission under s. 25.1(8) of the Code prior to the commission of an offence in the course of the operation.

[66] At or about the time that Project Souvenir was approved by National Headquarters, Officer A was chosen as the primary undercover officer who would attempt to make contact with Mr. Nuttall with a view to establishing a relationship with him. Officer A was briefed in general terms with regard to the lifestyle surveillance of Mr. Nuttall and Ms. Korody; however, he was not made aware of specifics to safeguard his undercover role. While Sgt. Kalkat wanted someone who had already done national security undercover operations, Officer A did not have this kind of experience. The primary reason for selecting Officer A was the fact he was a Muslim.

[67] Right from the outset of Project Souvenir, there was conflict between the undercover shop and E-INSET in regard to the content and direction of the scenario objectives for the undercover operation. Sgt. Kalkat believed that the undercover shop was employing too many passive scenarios designed to build rapport with Mr. Nuttall and this raised concerns in his mind about the pace of the investigation. Sgt. Kalkat wanted the undercover shop to take a more aggressive approach with Mr. Nuttall in order to channel him away from the constant discussion of ideas and spur him into action. When the sergeant pressed for more input into the scenarios, the undercover shop asserted their authority over this aspect of the investigation.

[68] The first scenario involved Officer A attending at the local gas station that Mr. Nuttall frequented. This scenario occurred on February 23, 2013. In accordance with the usual practice, Cpl. Matheson drafted the scenario outline and objectives with input from the investigative team. During this scenario there was no more than eye contact between Officer A and Mr. Nuttall.

[69] After the first scenario, there was a hiatus in the undercover operation and Sgt. Kalkat complained to Cpl. Matheson that the operation was proceeding too slowly. He told the corporal that the investigation was a national priority due to the risk posed by Mr. Nuttall. When questioned why he believed there was a risk in light of the lack of recent evidence that Mr. Nuttall was expressing extremist beliefs, the sergeant testified that the DNR revealed that Mr. Nuttall’s cellular telephone usage and blog were associated with the registered name of “Muhammad Muhammad.” He also referred to Ms. Korody’s wearing of the hijab and her conversion to the Muslim faith. Apparently Sgt. Kalkat associated terrorism with adherence to the Islamic faith in general. Moreover, at this time only Mr. Nuttall was a target; there was no evidence at all about Ms. Korody’s activities beyond what the surveillance had indicated.

[70] Supt. Bond testified that contact with Mr. Nuttall was justified at this time because E-INSET had reasonable grounds to suspect that Mr. Nuttall might be engaged in criminal activity due to the July and October 2012 complaints and the unverified information he had received from CSIS along with the contents of the February 7, 2013 advisory letter.

[71] On March 1, 2013, the investigative team met with Cpl. Matheson and Officer A to discuss the next scenario. Although the minutes of the meeting clearly suggest that Sgt. Kalkat raised a concern about using religious literature to recruit Mr. Nuttall contrary to RCMP practice (he was responding to a suggestion by Cpl. Matheson that Officer A go door to door with religious literature), the sergeant denied that this was a concern discussed at the meeting. The minutes of the March 1, 2013 briefing specifically referred to a discussion of “sensitive sector issues”. Cpl. Matheson testified that one sensitive sector issue is religion; special permission from RCMP National Headquarters is necessary if the undercover shop wants an officer to act as a religious advisor to a target. Sgt. Kalkat testified that sensitive sector permission is only required when an operator seeks to attend a mosque with a target.

[72] The second scenario occurred on March 2, 2013. The scenario was to take place at the same local gas station. Officer A was to make contact with Mr. Nuttall to request his help finding Officer A’s niece. Officer A was to play the role of an Arab businessman whose niece had run away from home due to the family’s strict adherence to Muslim religious customs. This cover story was designed to appeal to Mr. Nuttall’s conservative beliefs about Muslim women, which were already known to the police. The police consistently observed Ms. Korody behaving in a subservient fashion with Mr. Nuttall and otherwise exhibiting the lifestyle of a conservative Muslim woman. To entice Mr. Nuttall into sharing his religious beliefs with Officer A, the police planted Islamic literature in Officer A’s vehicle to attract Mr. Nuttall’s attention.

[73] Officer A’s cover story was also designed to attract Mr. Nuttall’s interest in the Muslim faith and lead him to draw inferences about Officer A’s background. Officer A was to portray himself as having been born in the Middle East and a life-long Muslim who, by implication, was intimately familiar with the faith. From the outset of the undercover operation, Sgt. Kalkat pushed for Officer A to assert his superior knowledge of the Islamic faith during the scenarios with Mr. Nuttall and to use his knowledge of the religion as a means of controlling and directing Mr. Nuttall’s behaviour. Over the course of the operation, Officer A led Mr. Nuttall to believe that he had family in the Middle East and had to return there to deal with issues involving his family.

[74] During the scenario, Officer A showed Mr. Nuttall a photograph of his niece. Mr. Nuttall immediately said he would help Officer A find her. When he saw the Islamic literature in Officer A’s vehicle, Mr. Nuttall told him that he was a convert to the Muslim faith. The two then drove around Surrey together checking out locations where Mr. Nuttall said teenagers hung out and smoked.

[75] Mr. Nuttall was very open and unguarded with Officer A about his extremist views of the Islamic faith. He spoke about speeches he had read and was pleased when Officer A identified Bin Laden as their author. He demonstrated a naïve, child-like demeanour right from the start. Officer A cautioned Mr. Nuttall not to speak to strangers about such things but led him to believe that he shared Mr. Nuttall’s beliefs about violent jihad. Supt. Bond testified that Officer A directed Mr. Nuttall in this fashion to maintain his persona as someone involved in terrorist activities. The superintendent testified that to be successful, an undercover operator had to let the target infer things about his role in jihadist actions.

[76] Cpl. Matheson found it remarkable that immediately after meeting Officer A Mr. Nuttall simply poured out his most intimate beliefs about Islam. Supt. Bond testified that in his 34 years as an RCMP officer he had never seen a target demonstrate such an openness and enthusiasm with regard to his terrorist beliefs in such a short time. Mr. Nuttall demonstrated the same naïve openness with a stranger that he and Officer A met at the skytrain station during the next scenario.

[77] During the March 2 meeting, Mr. Nuttall exaggerated the police contact he had experienced due to his expression of jihadist views. He also exaggerated his computer skills by claiming he could hack into the Israeli government’s server. Mr. Nuttall told Officer A that he had a plan and all he needed was money. In response, Officer A said that the money problem could be solved and he would introduce Mr. Nuttall to like-minded brothers. Nothing more concrete was promised. Mr. Nuttall did not suggest that he had already committed terrorist acts or played a role in such activities. Nor did he articulate any steps that he had taken in regard to the plan or what the plan consisted of; however, he listed some of the items he required for the plan such as a plasma cutter. Due to Mr. Nuttall’s expression of extremist views, the project immediately turned from intelligence gathering to evidence gathering.

[78] A similar scenario followed on March 3, 2013. Mr. Nuttall continued to help Officer A look for his niece. In this encounter Officer A staged a job offer for Mr. Nuttall that was designed to lead him to believe that Officer A was involved in shady business activities and that he was part of a larger group. This was the start of the RCMP’s plan to convince Mr. Nuttall that Officer A was an important person in a large and sophisticated organization that was involved in financing and carrying out terrorist activities. Cpl. Matheson testified that he would call Officer A during the scenarios to play the role of other associates involved in the group to make it seem larger to Mr. Nuttall. Further, he testified that right from the start Mr. Nuttall bought into the cover story that Officer A was involved in nefarious activities and was associated with this large sophisticated group. Cpl. McLaughlin also agreed with this description of what Officer A led Mr. Nuttall to believe.

[79] Officer A permitted Mr. Nuttall to believe that he had been involved in jihadist actions before and it was apparent to Cpl. Matheson that Mr. Nuttall believed this was true based on Officer A’s statements. Later in the project Officer A told the defendants on more than one occasion that this “was not his first dance” when they talked about Mr. Nuttall’s jihadist ideas and the defendants asked for his advice. Later when Officer C was introduced to the defendants he described himself as a mujahideen, which means jihadist fighter or warrior.

[80] Although Sgt. Kalkat denied that Officer A was to represent himself as anything more than a like-minded individual with access to financial resources, other officers involved in the project confirmed that the underlying goal of the operation was to convince Mr. Nuttall that they were part of a large international terrorist group. Indeed, the credibility of Sgt. Kalkat’s evidence is clearly undermined by his email correspondence with Cpl. Matheson and the language he used during the briefing meetings. In particular, in these communications he referred to making Mr. Nuttall aware of the criminal nature of the organization, what it was about and its capabilities.

[81] Sgt. Kalkat also agreed that Officer A was instructed to use criminal tradecraft when he was with Mr. Nuttall to lead him to conclude that Officer A was part of the criminal element. Officer A was instructed to teach Mr. Nuttall criminal tradecraft to bolster his cover story. In every scenario Officer A would demonstrate a “cleaning regime” that involved taking a circuitous route to their destination to show Mr. Nuttall that he was cognizant that the police might be watching and to strengthen Mr. Nuttall’s belief that he was carrying on clandestine activities. The instructions given to Mr. Nuttall in connection with the staged jobs were also designed to lead him to believe that Officer A was engaged in shady business dealings. It is apparent that Mr. Nuttall learned many aspects of this tradecraft from Officer A; however, he was also astute enough to know not to download terrorist literature from the Internet using his own IP address.

[82] During the March 3rd scenario, Mr. Nuttall spoke about Qassam and Samus rockets used by Hamas to target Israel. Officer A agreed in cross-examination that Qassam rockets are homemade short-range rockets without guidance systems, and that Samus are long-range guided missiles. He further agreed that Mr. Nuttall believed they were the same thing and that he could make them in his garage. Mr. Nuttall explained to Officer A that he had a plan to build these rockets and shoot them over the Legislative buildings in Victoria with “Qassam” and “Samus” written on them to send a pro-Palestinian message. Mr. Nuttall wanted Officer A to buy him the tools that he needed to make the rockets. Officer A again told Mr. Nuttall that he should be careful about talking of these things to someone he did not know well.

[83] It is notable that during this meeting Mr. Nuttall told Officer A that his “big plan” was on his laptop; however, it became apparent later in the project that Mr. Nuttall did not commit to writing anything more than a list of items he might need for the “train plan” (a plan that the RCMP determined to be a failure). There is no evidence he had any plan on his computer in March 2013 and after the arrest on July 1st, a search warrant executed on his hard drive and Ms. Korody’s hard drive revealed no such plans.

[84] At the end of this scenario, Officer A gave Mr. Nuttall $100 because it became apparent that he had given away his last dollar to a street person who claimed to be from Palestine.

[85] The first staged job was carried out on March 4, 2013 when Officer A gave Mr. Nuttall $200 for transporting a package. At this meeting Mr. Nuttall confirmed that he knew Officer A was working with other people and he mistakenly came to believe that a security guard standing near the lockers where he picked up the package was part of Officer A’s group. Officer A permitted Mr. Nuttall to believe the security guard was part of his organization and responded in a way that cemented this belief.

[86] During the next scenario on March 7, 2013, Mr. Nuttall told Officer A that he had left his laptop in the vehicle to test Officer A to see if he was a police officer. Mr. Nuttall made statements to the effect that there was enough information on the computer to send him to jail. It is clear that Mr. Nuttall could not have been referring to any plan for jihad. In response, Officer A praised Mr. Nuttall for being more cautious about his jihadist plans than when they first met.

[87] On March 6, 2013, C/Supt. Tremblay contacted Supt. Bond to inquire whether Mr. Nuttall’s name should appear on the No-Fly List. Supt. Bond testified this idea went no further. He knew that Mr. Nuttall had no driver’s licence and largely restricted himself to a four-block radius surrounding his home. The police were also aware that he had no passport.

[88] The scenarios on March 7 and 8, 2013 also involved Mr. Nuttall doing staged jobs for Officer A. The jobs were all to be carried out in a clandestine manner and Mr. Nuttall was never told what he was dropping off or picking up. Again, during these scenarios Officer A performed the cleaning regime when he picked up Mr. Nuttall to further his belief that he was engaged in nefarious activities. Cpl. Matheson would call Officer A and confirm he was “clean” as a means of showing Mr. Nuttall that the group had security and, inferentially, that Officer A was an important member of the organization.

[89] As described earlier, the jobs were designed to further Mr. Nuttall’s belief that Officer A was part of a large sophisticated quasi-criminal organization that had access to human and substantial financial resources to finance jihad. Officer A’s initial cover as an Arab businessman, who was sympathetic to jihadist philosophies, ultimately developed into one that focused entirely on convincing Mr. Nuttall and Ms. Korody that he was a major player in a large international terrorist organization with access to money, weapons, experts in clandestine operations, and explosives. The money paid to Mr. Nuttall for carrying out this clandestine work, as well as the hotel stays, the food, “safe” cellular telephones, bus passes and other purchases were all intended to further this cover story and cement the relationship with Officer A. Mr. Nuttall was also brought further into the “group” by a subsequent “loyalty talk” that was designed to strengthen the trust relationship with Officer A and effectively isolate him from outsiders; the message being, “don’t trust anyone else and don’t talk to anyone about us”.

[90] Another purpose behind the jobs was to determine whether Mr. Nuttall could or would carry out Officer A’s instructions. The police wanted to test a number of things: (1) Mr. Nuttall’s intellectual capacities; (2) his trust of and loyalty to Officer A; and (3) his propensity to become involved in criminal activity. Mr. Nuttall did not appear to have any difficulty carrying out the instructions given for the staged jobs.

[91] At the end of the job scenarios it was quite apparent to the undercover shop that Mr. Nuttall trusted Officer A implicitly and was 100% loyal to him. Although Sgt. Kalkat testified that he did not share these sentiments, there was no evidence to support his doubts about Mr. Nuttall’s blind allegiance to Officer A as of early April 2013. Cpl. McLaughlin testified that what the police learned after the March job scenarios was that Mr. Nuttall was willing and anxious to please Officer A and he did not deviate from Officer A’s instructions.

[92] Mr. Nuttall received $100 for the job on March 7th and 8th as well as some Afghan food. On March 8th, Officer A purchased Mr. Nuttall a cellular telephone that he was told was strictly for communicating with Officer A. In light of Mr. Nuttall’s comments to Officer A at the end of the “flash roll” scenario (in which Officer A gave $20,000 to another undercover officer to count without stating the purpose for the exchange), it was apparent to the police that he believed there was drug dealing going on and that Officer A’s associates were part of the mafia. Later on the police learned that during private conversations between Mr. Nuttall and Ms. Korody, Mr. Nuttall expressed a firm belief that Officer A was a member of Al Qaeda. None of the undercover officers attempted to dissuade Mr. Nuttall from this belief. Cpl. McLaughlin testified that as of this scenario the investigative team expected that Mr. Nuttall would conclude Officer A was a “big deal” in a terrorist cell.

[93] Officer A advised Mr. Nuttall during the March 7, 2013 scenario that he was going away for two weeks and he did not want Mr. Nuttall experimenting with explosives. Mr. Nuttall had referred to a past experiment with fertilizer explosives (which he later contradicted) and Officer A wanted to ensure the public was safe while he was away. Mr. Nuttall promised he would do nothing without telling Officer A first and there is no evidence that Mr. Nuttall failed to comply with this instruction. It was also during the March 7, 2013 scenario that Mr. Nuttall expressed some doubts about Officer A’s intentions and Officer A handled the issue by advising Mr. Nuttall that they could go their separate ways if he did not trust him. In response, Mr. Nuttall said that he and Officer A were “partners for life”. Although Supt. Bond testified that he was surprised that Mr. Nuttall had so quickly come to the conclusion that Officer A was not a moderate Muslim, he had no concerns about Mr. Nuttall’s rapidly growing attachment to Officer A.

[94] During the early scenarios in March, Mr. Nuttall told Officer A that Ms. Korody had expressed a desire to kill Jewish children. Although Officer A talked Mr. Nuttall out of any such plan, and it was never raised again, this reference to Ms. Korody’s intentions led to discussions during the briefings about involving her in the scenarios. A plan that continued to resurface was bringing in a female undercover operator to engage Ms. Korody due to her religious beliefs about contact with men apart from her husband. A female operator was not brought into the scenarios but Officer A was directed to orchestrate Ms. Korody’s involvement by pressuring and manipulating Mr. Nuttall to that end. At no time during the undercover operation did Ms. Korody confirm that she had ever expressed a desire to kill Jewish children.

[95] Because Officer A was unavailable for scenarios between March 9 and 25, 2013, Sgt. Kalkat insisted that Officer A have a “loyalty talk” with Mr. Nuttall prior to the “flash roll” scenario. By instilling loyalty in the target in relation to the undercover officer, there is more control over the target’s actions even when the undercover operator is not around. The loyalty talk was also intended to dissuade Mr. Nuttall from attempting to steal the money he saw being counted in the hotel room. Mr. Nuttall did not attempt to steal the cash.

[96] CSIS was also concerned about what Mr. Nuttall might do while Officer A was away and, when Supt. Bond advised that the RCMP could not provide surveillance, CSIS agreed to do so for the following two weeks. Supt. Bond cautioned CSIS that because Officer A had instructed Mr. Nuttall to be on the lookout for people following him, their surveillance officers should be more careful.

[97] While Officer A was away, the police became concerned about the risk that Mr. Nuttall might act on his jihadist beliefs independently. There was considerable disagreement as to what would be necessary to ensure Mr. Nuttall’s relationship with Officer A did not falter during this hiatus in the operation. Sgt. Kalkat wanted to move Mr. Nuttall and Ms. Korody out of the province and have them carry out some type of package movement. Although Sgt. Kalkat testified that the impetus for sending Mr. Nuttall out of town was information from CSIS that he was attempting to purchase something (which the sergeant assumed was a firearm), it is apparent from the briefing minutes that this issue did not surface until long after these discussions. The sergeant’s plan to send Mr. Nuttall outside of the province was discussed on or before March 11, 2013, while the CSIS tip was brought to the RCMP’s attention on or about March 20, 2013.

[98] In any event, Cpl. Matheson believed that taking the defendants out of town was not advisable or necessary to maintain control over Mr. Nuttall. He believed that Mr. Nuttall would not do anything without checking with Officer A and that at most a few text messages would be sufficient to maintain their relationship. While there may have been brief moments of distrust, Mr. Nuttall kept coming back to Officer A immediately with assertions of complete trust in him. In Cpl. Matheson’s view, Officer A exercised control over Mr. Nuttall through their relationship and the police, in turn, were able to manipulate that relationship.

[99] Sgt. Kalkat went over Cpl. Matheson’s head and attempted to persuade superior officers in the undercover shop (Officer B and Cpl. Mansoor) to go along with his views. He believed that Mr. Nuttall would feel abandoned by Officer A and act out on his own. In a meeting with Officer B, Sgt. Kalkat complained about Cpl. Matheson’s handling of the operation and his inexperience. Sgt. Kalkat did not believe that the undercover shop shared the same urgency he felt about the operation. There was always a tension between Sgt. Kalkat and Cpl. Matheson in regard to the amount of contact between Officer A and Mr. Nuttall. While the sergeant wanted to increase contact and cement the control exercised by Officer A over Mr. Nuttall, Cpl. Matheson preferred fewer contacts to avoid undue influence over the target. Both Cpl. Matheson and Sgt. Kalkat agreed that by controlling Mr. Nuttall, they anticipated he would control Ms. Korody due to his conservative beliefs about the subservient position of Muslim women.

[100] Sgt. Kalkat testified that Cpl. Matheson did not understand the “big picture” because he was not privy to information about Mr. Nuttall from other agencies. However, the only other agency that was providing information to the RCMP about Mr. Nuttall was CSIS. Apart from the advisory letter and the information on March 20, 2013, that Mr. Nuttall was attempting to purchase something, CSIS provided no further intelligence to the RCMP.

[101] Ultimately the undercover shop rejected the sergeant’s plan to send Mr. Nuttall out of town as unnecessary. In response, Sgt. Kalkat shut down the operation and prohibited any contact with Mr. Nuttall. To ensure public safety, Special “O” was engaged to carry out surveillance of Mr. Nuttall and Ms. Korody. Nothing occurred while Officer A was away that in any way posed a danger to the public.

[102] During this shut down period, Sgt. Kalkat and Supt. Bond met with Insp. Arnold and S/Sgt. Mann, the senior officers in charge of the undercover shop, to convince them to replace Cpl. Matheson with someone who had more experience. However, Insp. Arnold and S/Sgt. Mann believed that Cpl. Matheson was capable and properly handling the operation.

[103] Supt. Bond agreed with Sgt. Kalkat’s assessment of Cpl. Matheson’s lack of experience. He felt that national security investigation experience was mandatory for the success of Project Souvenir and Cpl. Matheson lacked this experience. He believed that at this time in the project there was considerable conflict between the command team and the undercover shop about the direction of the investigation, its speed and the objectives of the scenarios. He also agreed with Sgt. Kalkat that the undercover shop’s desire to introduce a female operator to the defendants was ill-advised and showed a lack of understanding of national security investigations.

[104] The operation resumed on or about March 13, 2013 and Cpl. Matheson organized some text and telephone contact from Officer A while he was away. Through this telephone contact, it became apparent that Mr. Nuttall was emotionally bonded to Officer A and was extremely worried about Officer A during his absence. Mr. Nuttall told Officer A that he felt abandoned since he had gone away and that he only trusted Officer A and no one else.

[105] It is apparent that from this time onward the defendants intentionally isolated themselves from others in preference to spending time with Officer A. In the later scenarios Officer A perpetuated this social isolation by discouraging Mr. Nuttall and Ms. Korody from having contact with other friends and family members. In addition, it was at this time that Mr. Nuttall’s grandmother moved out of the basement suite thereby isolating them further from family members.

[106] During Officer A’s absence, the undercover shop voiced a concern that Officer A had overly excited Mr. Nuttall about doing jihadist acts and was giving him the capacity to carry out terrorist acts for which he lacked the resources and contacts. Cpl. Matheson testified that he raised the issue of entrapment with the investigative team in mid-March 2013 for two reasons. First, he believed that by paying Mr. Nuttall for jobs, the police might be committing the offence of facilitating a terrorist act. Second, it was apparent that Mr. Nuttall did not have the financial resources to carry out any of his jihadist ideas, and thus by giving him money the police were making him into someone who was capable of carrying out a terrorist act.

[107] It is also apparent that the investigative team was concerned about entrapment by mid-March 2013. Sgt. Kalkat made detailed notes about the law of entrapment in his notebook and he raised this topic at the March 18, 2013 briefing. It is noteworthy that although Sgt. Kalkat copied passages from Mack into his notebook, he also incorporated quotes from American authorities that focused on predisposition as a determining factor in entrapment cases, a proposition explicitly rejected in Mack.

[108] Cpl. McLaughlin testified that the team’s discussions on entrapment centred on designing scenarios that did not give Mr. Nuttall everything he needed to commit a terrorist act or design a plan for him, and did not make him capable of doing something that he could not do for himself. As discussed below, the police did not respect these limitations.

[109] Notwithstanding an awareness of these issues, it was Sgt. Kalkat’s desire to see the undercover shop “amp up” the scenarios to flush out Mr. Nuttall’s plan for jihad and to increase contact with the operator to one or two meetings per week upon Officer A’s return. Instead of passive scenarios that permitted Mr. Nuttall to talk on and on about his terrorist ideas, Sgt. Kalkat wanted Officer A to take control of the conversation and focus Mr. Nuttall on his plan. Was it all talk or was he prepared to actually do something?

[110] Because Cpl. McLaughlin was the primary contact between the command team and the undercover shop, and in particular, Cpl. Matheson, he passed on Sgt. Kalkat’s directions regarding the scenario objectives. Cpl. McLaughlin testified that what he passed on to Cpl. Matheson were Sgt. Kalkat’s instructions, not necessarily his personal views of the situation.

[111] Although it is apparent that Mr. Nuttall had a variety of ideas that ranged in complexity and feasibility, he was not focused on any one idea and had taken no steps in furtherance of any idea. Nevertheless, what Mr. Nuttall talked about doing was a concern to the investigative team and they wanted to know if he was serious about carrying out one of these ideas.

[112] For the most part Mr. Nuttall’s ideas were grandiose and fanciful. Even if he could focus on one of them, they all required long-term planning and investment. The grandiose schemes included hijacking a nuclear submarine and taking the world hostage (this was fanciful according to Supt. Bond); storming the Esquimalt military base with AK-47s and teams of mujahideen; and building Qassam rockets to shoot towards the Parliament buildings in Victoria. However, some of his ideas were more immediate.

[113] For instance, during a telephone call on March 20, 2013, Mr. Nuttall told Officer A that they had missed out on something big during Officer A’s absence. On March 22, 2013, Mr. Nuttall sent a text to Officer A about the fantastic opportunity they were missing and urged him to come back soon. When Officer A telephoned Mr. Nuttall to find out about the “fantastic opportunity”, Mr. Nuttall said that some 250 soldiers had recently returned from Afghanistan and they could have been there [with a gun] to give them a real welcome home. In the same call Mr. Nuttall expressed feeling abandoned and said he was going to find some money and get on a plane and meet up with Officer A.

[114] Even though Mr. Nuttall raised this missed opportunity again in later scenarios, he never took any steps to carry out this idea either at the time or later during the operation. Nor did he outline any of the steps he would have taken to carry out such an idea. Mr. Nuttall’s “plan” proved to be no more than the idle talk he engaged in when discussing the rocket plan or the plan to take over a nuclear submarine. Indeed, it is significant that Mr. Nuttall believed that he had to sit idle in the face of such a perfect opportunity because Officer A was not there to assist him.

[115] Sgt. Kalkat testified that a peace bond was considered as a possible response to Mr. Nuttall’s threats; however, because he was convicted of a breach of an undertaking 11 years earlier in 2002, the sergeant did not believe Mr. Nuttall would comply with a peace bond. Sgt. Kalkat made no note of any consideration of a peace bond at this time or at any other time during the project. Nor is there evidence that he sought the views of other officers or sought legal advice in regard to a peace bond. Supt. Bond testified that the investigative team did not consider a peace bond at any time during the project. He also believed a peace bond would not have been appropriate in the circumstances.

[116] At a briefing on March 18, 2013, the investigative team discussed the balance between securing evidence to meet the elements of an offence and committing acts that would constitute entrapment. The team was already talking about possible charges against Mr. Nuttall, including facilitating a terrorist activity and conspiracy to commit a terrorist activity. Sgt. Kalkat believed that they were 15 to 20 scenarios away from the testing scenario, which was a reference to gauging the defendants’ commitment to a plan.

[117] On the morning of March 20, 2013, CSIS advised Supt. Bond that they believed Mr. Nuttall might attempt to procure a weapon on that day. He arranged for RCMP surveillance on Mr. Nuttall in response to this tip. Subsequently, CSIS confirmed they would also have “eyes and ears” on Mr. Nuttall. Supt. Bond advised Sgt. Kalkat that CSIS believed Mr. Nuttall might be trying to purchase something that day but he did not specify what it was.

[118] At briefings on March 20 and 21, 2013, the investigative team discussed the information received from CSIS. Sgt. Kalkat testified that he assumed Mr. Nuttall was trying to buy a firearm. Again, he wanted the undercover shop to get Mr. Nuttall out of B.C. at this time so he would not be able to purchase a firearm. Officer B did not believe this was necessary. Ultimately, there was never any confirmation of this tip despite additional surveillance of Mr. Nuttall by the RCMP and by CSIS. Cpl. McLaughlin testified that this tip from CSIS was never followed up in any of the subsequent scenarios.

[119] On the issue of a firearm, Mr. Nuttall expressed to Officer A a sincere desire to have a gun throughout the undercover operation. Officer A appeared to put the issue off and actively discouraged Mr. Nuttall from having a firearm in his possession when they were together. However, he clearly left the impression with Mr. Nuttall that he had access to firearms and could obtain them. There is no evidence that Mr. Nuttall ever attempted to buy a firearm himself, even though he told Officer A that his Fijian friend (A.A.) had access to firearms that were for sale. Sgt. Kalkat also testified that it is easy to obtain a firearm in the Lower Mainland. Thus, it is apparent that had Mr. Nuttall truly wanted a gun, he would likely have secured one or at least made an attempt to do so.

[120] It was on or about March 21, 2013, that Sgt. Kalkat obtained permission from the Ontario E-INSET branch for regular contact with Cst. Mokdad to receive advice on the Islamic faith and Islamic extremist activities. It was Sgt. Kalkat’s intention to pass on this research to Officer A to use during scenarios with Mr. Nuttall to make him more credible as a jihadist, and he did so on more than one occasion. He also asked Cst. Mokdad to contact Officer A directly to give him advice. Subsequently, the three officers had a telephone conference together. Although Sgt. Kalkat believed that Cst. Mokdad spoke to Officer A on other occasions, Cst. Mokdad denied that he did this. Officer A had known Cst. Mokdad for some time before the operation began and he had only a vague recollection of speaking to him during the project.

[121] Cst. Mokdad has done extensive research into jihadist terrorist groups and in the past has been attached to E-INSET teams to advise them on the construction of realistic scenarios where undercover officers role play as jihadists. He has been accepted as an expert on this subject by courts in Canada. Cst. Mokdad is not an expert in the Islamic faith but he is a practising Muslim.

[122] On March 21, 2013, Cst. Mokdad gave Sgt. Kalkat a verse from the Quran that Officer A could quote during discussions with Mr. Nuttall. The sergeant specifically wanted verses that mention jihad, and Chapter II, Verse 216 which was the verse Cst. Mokdad provided, refers to this concept. Cst. Mokdad testified that some people interpret this verse as referring to an internal struggle and that it is not as graphically violent as other verses. However, he cautioned that he cannot interpret or translate the Quran. Later in April 2013, Cst. Mokdad sent additional verses to Sgt. Kalkat. These verses talked about the sin of killing innocents. These verses were sent along with the names of historical battles in Afghanistan.

[123] Sgt. Kalkat sent an email to Cpl. Matheson on March 22, 2013, suggesting that Officer A refer to Chapter II, Verse 216 in a text to Mr. Nuttall, as a means of responding to his feelings of abandonment and the missed opportunity. More specifically, Sgt. Kalkat suggested the following be said to Mr. Nuttall in a telephone call:

“Brother, opportunities come and go, it’s not you or me that controls our destiny, it is Allah. If we missed an opportunity, there is a reason why we missed this opportunity, Allah didn’t want it to happen, and Allah must have a good reason; Allah will guide us and Allah will reward us with another opportunity. All I ask is for you to be steadfast in your faith. I will explain further when I come back on Tuesday and we can talk face to face.” [Emphasis added.]

[124] Cst. Mokdad testified that he did not provide these phrases to Sgt. Kalkat and cautioned that Chapter II, Verse 216 is not about destiny, Allah’s will or a person’s will. He provided the sergeant with a simple phrase, “If we do not meet, it’s not meant to be.” However, he did not incorporate Allah’s will into the message. In addition, Cst. Mokdad testified that he would not have paraphrased the Quran as it must be quoted precisely.

[125] Cst. Mokdad knew nothing of the investigation into the defendants’ actions. Sgt. Kalkat advised him that the target’s motivation appeared to be anger that Canada refused to recognize Palestine as a state; however, this is the only information he had. This was unusual for Cst. Mokdad who testified that when he is called in to advise on an undercover operation, he works directly with the cover person and the undercover officers from the start of the project.

[126] Although Officer A did not use the references suggested by Sgt. Kalkat in the messages he sent to Mr. Nuttall during his absence in March 2013, he used very similar language later on in the operation when Mr. Nuttall sought spiritual guidance about going through with the plan to explode the pressure cooker devices.

[127] Cpl. Matheson’s plan to address Mr. Nuttall’s feelings of abandonment and the lost opportunity was to have Officer A return early and meet with Mr. Nuttall to talk him down and prevent him from getting on a plane and attempting to locate Officer A. Sgt. Kalkat rejected this plan because it would put Mr. Nuttall in control of the operator when the intention was for Officer A to be in control of the target for a variety of reasons.

[128] It was also on or about March 21, 2013 that the investigative team learned that Mr. Nuttall’s grandmother had moved out of their basement suite and had taken the telephone landline with her. This caused the defendants to be further isolated from people outside of Officer A’s group and was one reason for the decision to provide Mr. Nuttall with a cellular telephone. Cpl. Matheson testified that by this point in the project, Mr. Nuttall was quite vulnerable because he was so dependent upon Officer A for companionship. When Officer A was away Mr. Nuttall felt abandoned because he had few friends and, as time went on, Mr. Nuttall isolated himself further from any outside influences.

[129] When the grandmother took the landline it ended the DNR on the line; however, apart from contact with T.E.’s telephone number and a number associated with A.A., there were no communications of interest to the RCMP ever recorded. The police subsequently obtained records for the cellular telephones that Officer A provided to Mr. Nuttall and no communications of interest were revealed by these records apart from additional telephone contact with T.E. and A.A.

[130] The investigative team considered T.E. a person of interest during the early months of the undercover operation because Mr. Nuttall claimed T.E. was a fellow jihadist and he said they had talked about such plans extensively. When Mr. Nuttall claimed that T.E. had left the country to join a terrorist group in the Sudan or Somalia, the police investigated and found out that T.E. had not left Canada in the previous 30 days. In addition, there was a record of police contact with T.E. in April 2013 at a time when T.E. was alleged to have left the country. Ultimately there was never any direct evidence that T.E. was willing to participate in any of Mr. Nuttall’s ideas and T.E. disappeared from Mr. Nuttall’s life in early April 2013.

[131] A.A. became Mr. Nuttall’s roommate and for a time he was also a person of interest; however, there was never any direct evidence that he was a willing participant in any of Mr. Nuttall’s plans and Mr. Nuttall later confirmed that he was not going to be involved. Ms. Korody told Officer A that A.A. knew nothing of their jihadist plans.

[132] On March 26, 2013, additional E-INSET officers, including Supt. Bond, attended a briefing along with several members of the undercover shop because of the ongoing dispute about the direction of Project Souvenir. At this meeting Cpl. McLaughlin expressed the command team’s concern that they needed to have more input into the scenarios, including the overall objectives, themes and timelines. Officer A’s absence raised serious concerns about Mr. Nuttall’s emotional stability and the ability of the RCMP to control his actions using the vehicle of an undercover operation. The command team continued to press the undercover shop regarding more tests of Mr. Nuttall’s commitment to carrying out terrorist acts and his commitment to the relationship with Officer A. Sgt. Kalkat referred to his own internet research about terrorism and the Quran and shared his desire that Officer A use this information to make the scenarios more realistic; that is, to make Mr. Nuttall believe that Officer A was in fact a member of an international organization that supported violent jihadist acts because he knew the Quran and had in-depth knowledge of other jihadist groups, their beliefs and their leaders. Cpl. Matheson believed that Mr. Nuttall already trusted Officer A and did not require further convincing about his antecedents.

[133] At this meeting, Cpl. Matheson expressed the belief that Officer A had gone far enough in terms of pushing Mr. Nuttall to disclose his thoughts about jihad and any more urging might constitute incitement to commit crimes. Cpl. Matheson testified that from the outset Mr. Nuttall had expressed his desire to carry out violent jihad ostensibly because he believed Officer A was a like-minded individual. As a consequence, it was his view that the police should not be saying or doing things to encourage Mr. Nuttall and make him more “jihadist” than he already was. Instead, he believed the police should be discouraging Mr. Nuttall from acting out his beliefs by portraying Officer A as normal and calm as possible. Of course, by promising to help Mr. Nuttall carry out a jihadist plan, the RCMP was inciting him to move forward with his ideas about jihad.

[134] Further, while the command team was encouraged by Mr. Nuttall’s propensity to talk openly about his plans to do jihad (most prominently his plan to build Qassam rockets that sent a message about freeing Palestine), Supt. Bond was concerned about whether Mr. Nuttall had the ability and “know how” to follow through with any of his ideas. Sgt. Kalkat believed that Mr. Nuttall lacked the contacts and the resources to accomplish any of his ideas at this early stage in the operation.

[135] In regard to the rocket plan, Sgt. Kalkat testified that he specifically instructed the undercover shop and the investigative team that the RCMP would never proceed with Mr. Nuttall’s plan because there were too many unknowns and risks to the public. Further, it would require too much support and resources from the police and the undercover operation could not be sustained long enough to accomplish this plan. He later instructed the undercover officers to actively discourage Mr. Nuttall from carrying out this plan by telling him it was not feasible or viable and to refer to the pressure cooker plan as a doable and feasible plan.

[136] The duration of the operation was always a conundrum for Sgt. Kalkat. On the one hand, he knew that the operation could not go on for months because of potential public safety risks and thus there was pressure to get it completed as soon as possible. The project was also a national priority for the RCMP and from the outset of the operation Sgt. Kalkat had emphasized this fact. On the other hand, Mr. Nuttall was not coming up with a plan and was slow to engage in any meaningful process towards accomplishing a plan. To Sgt. Kalkat, that meant the operation had to continue in spite of the concerns raised by the undercover shop about undue influence.

[137] On or about March 21, 2013, Sgt. Kalkat began obtaining legal advice from Ms. Devlin, Q.C. who at the time worked with the Federal Prosecution Service. It is part of the RCMP’s Major Case Management system that Crown counsel is designated to give legal advice to the investigative team on its files. Apart from advice regarding the wiretap Part VI application and the one-party consent (“OPC”) application, Ms. Devlin, Q.C. also advised Sgt. Kalkat with respect to the operation more generally. The sergeant shared with Ms. Devin, Q.C. a concern that the undercover shop did not understand investigations in the “national security world” and was overly concerned with entrapment.

[138] At times during the project, Sgt. Kalkat sought legal advice from Ms. Devlin, Q.C. with regard to the scenario objectives and the methods used to gather evidence against the defendants. Due to the concern of the undercover shop in regard to the elements of the terrorist offences under consideration, the sergeant also sought legal advice on that matter. He generally followed Ms. Devlin’s legal advice; however, he sometimes disagreed with her assessment of the capabilities exhibited by the defendants.

[139] By March 27, 2013, the flurry of activity over Mr. Nuttall’s purported efforts to purchase a firearm had passed by without any evidence to support the CSIS tip. Supt. Bond advised CSIS that Mr. Nuttall did not pose “an imminent threat of acting out violently” and, further, that the RCMP would not be providing surveillance for the following week. On March 28, 2013, CSIS expressed difficulties with the RCMP’s decision not to provide surveillance but gave no reasons. Supt. Bond subsequently advised CSIS that they would not be providing surveillance based on Sgt. Kalkat’s assessment that Mr. Nuttall posed no imminent threat to the public. CSIS advised that they would be doing surveillance on Mr. Nuttall and would advise the RCMP if something came up. The RCMP received no information that the CSIS surveillance had observed anything of interest.

[140] On April 3, 2013, Officer A renewed in-person contact with Mr. Nuttall for the first time since March 8, 2013. Mr. Nuttall gave Officer A gifts and Officer A gave him religious presents from Morocco. Officer A also gave Mr. Nuttall a $100 prepaid phone card. Sgt. Kalkat agreed that these gifts and the back story about the trip to Morocco were designed to bolster Officer A’s image as an observant Muslim with connections to the Middle East. In their first meeting after the lengthy absence, Mr. Nuttall told Officer A that because of his instruction not to carry his marble gun due to the potential for drawing “heat” he no longer carried this gun on his person when he left his residence. The marble gun was a modified paintball gun. During this meeting Mr. Nuttall also told Officer A that his friend T.E. had gotten tired of waiting for him to do jihad, as opposed to just talking about it, and had gone to Somalia.

[141] In addition, Mr. Nuttall again talked about the missed opportunity of the returning soldiers and said that he had been thinking about a plan to storm the ships at the Esquimalt naval base and capture a nuclear submarine stationed at Nanoose Bay so that he could “hold the whole world hostage”. Mr. Nuttall told Officer A that while he had a Fijian friend (A.A.) who knew someone who could get him a handgun, he had not pursued this opportunity because Officer A told him to wait for his return. Mr. Nuttall then asked Officer A to get him AK-47s and rocket propelled grenades; he said he expected Officer A could get these weapons through his contacts or he could finance this part of the operation. The RCMP never verified A.A. as a viable source for weapons.

[142] Officer A told Mr. Nuttall that he liked his ideas and that he would help him with his plans, but Mr. Nuttall had to be patient. It became apparent at this meeting that Mr. Nuttall believed Officer A had real combat experience and would be able to provide him and Ms. Korody with weapons training. When questioned why he required weapons training, Mr. Nuttall said that he had only practised with paintball guns and he and Ms. Korody had never used real guns like Officer A.

[143] It was also during the April 3 meeting that Mr. Nuttall mentioned P.R. for the first time. He believed that P.R. was an ex-US soldier who bragged about killing Muslims in Afghanistan. (The police subsequently learned that P.R. was not an ex-US soldier.) In a later scenario, Mr. Nuttall said he had recently gone to P.R.’s citizenship ceremony; however, the police confirmed that P.R. became a Canadian citizen in 2007. Mr. Nuttall said P.R. would be an easy target to shoot because he was now a drug addict. Although Mr. Nuttall talked about the prospect of killing P.R. during later scenarios, he took no steps towards accomplishing this desire. The RCMP sought legal advice from the Crown regarding a charge of attempt murder; however, a charge of this nature did not go beyond the contemplation stage.

[144] When the RCMP later confirmed that P.R. was not an ex-US soldier, they queried whether Mr. Nuttall had made him up entirely as late as April 18, 2013. After confirming some facts about P.R.’s identity, the RCMP discussed whether they had a duty to warn him about Mr. Nuttall’s statements but decided against doing so. The command team and the undercover shop concluded that Officer A exercised sufficient control over Mr. Nuttall and thus it was not necessary to warn P.R. about a possible attempt on his life. There was never any evidence that Mr. Nuttall went any further than talk about killing P.R. when he was with Officer A.

[145] At the briefing on April 4, 2013, Sgt. Kalkat talked about the need to focus Mr. Nuttall on jihad and specific tasks related to his plans in order to gather evidence. The difficulty was that Mr. Nuttall had many ideas about doing violent jihad but would never settle on one specific objective. Sgt. Kalkat was alive to the need for Mr. Nuttall to take active steps himself instead of Officer A doing things for him. The sergeant expected to see Mr. Nuttall articulating a plan in an organized way and sticking to it. Some of the investigative team members expressed the view that it would be better to slow down Mr. Nuttall’s thinking about jihad to focus him on something concrete. Sgt. Kalkat remained concerned that Mr. Nuttall was controlling the direction and pace of the undercover operation. He wanted Officer A to take a more aggressive stance on Islamic ideology with Mr. Nuttall as a means of focusing him on a plan. While the sergeant testified that he also wanted to slow down the operation to make it easier to prepare the materials for the OPC application, I find this evidence is inconsistent with his criticism of the undercover shop’s “passive” approach to Mr. Nuttall and his desire to see Officer A being more assertive with the target.

[146] Mr. Nuttall continued to telephone Officer A after their meeting on April 3rd; and from these calls it became apparent that he was obsessed with Officer A. Mr. Nuttall said that he thought about Officer A every minute of every day and prayed for him continually. Mr. Nuttall promised Officer A that he and Ms. Korody would do anything that was asked of them. In response, Officer A told Mr. Nuttall to be patient because during his absences he was readying things his way and that Mr. Nuttall had to understand the way Officer A did things. Officer A counselled Mr. Nuttall about using more tradecraft and told him not to talk about jihad over the telephone.

[147] On April 7, 2013 during a telephone call, Mr. Nuttall asked Officer A whether according to the Islamic faith pubic hair had to be shaved or plucked. The shaving of all body hair is part of the cleansing regime before a mujahideen engages in jihad. When Supt. Bond learned of this exchange, it concerned him that Mr. Nuttall was seeking religious guidance from their operator. He testified that this would not be appropriate as part of an RCMP investigation. However, Supt. Bond did not otherwise become aware of the extent to which Officer A would come to provide religious guidance to Mr. Nuttall and Ms. Korody.

[148] At the April 9, 2013 briefing, Sgt. Kalkat urged the creation of scenarios that would lead to evidence of criminal offences and counselled the undercover shop that Officer A had to be more firm with Mr. Nuttall and exercise more control over his actions. Sgt. Kalkat wanted to identify a “D Day” or arrest day for Project Souvenir. He envisaged providing the defendants with a safe house to construct their device, using a cargo van with no windows and having the defendants make a last statement video to prove mens rea. There was also a discussion of a “recce” (or reconnaissance mission) in Victoria at this meeting. As will be discussed below, even at these early stages – and before Mr. Nuttall’s ideas about doing violent jihad had become focused on any particular idea or in any sense planned – the RCMP had pre-determined what would occur at the end of June 2013. It was a key element of Sgt. Kalkat’s vision of Project Souvenir that Mr. Nuttall and Ms. Korody would present Officer A with their plan even though up to this point there had been little direct contact with Ms. Korody.

[149] Consistent with his views that the undercover operator had to be more aggressive with Mr. Nuttall and assert control over his actions, Sgt. Kalkat wanted to create a scenario in which Officer A gave him money to purchase a firearm. He dropped this plan when Ms. Devlin, Q.C. provided a legal opinion counselling against doing this. Mr. Nuttall’s reference to A.A. possibly having access to a firearm was also an impetus for such a scenario; however, there was never any evidence that Mr. Nuttall had attempted to buy a firearm on his own from any source.

[150] The issue of a tracking warrant also came up at the April 9th briefing. The undercover shop wanted a tracking warrant so that a monitoring device could be attached to Mr. Nuttall’s cellular telephone; however, the investigative team believed that a tracking warrant could end the operation if Mr. Nuttall found the device. Sgt. Kalkat believed their surveillance and the pole cameras at the basement suite were sufficient for public safety.

[151] The importance Sgt. Kalkat placed on public safety did not lead to a decision to obtain a search warrant for the defendants’ computers during the project. He was too concerned about jeopardizing the undercover aspect of the investigation to risk going into their basement suite to secure the hard drives and no thought was given to developing a scenario that would lead to the acquisition of the defendants’ laptops for a short time. The sergeant appeared to be quite satisfied with the level of supervision E-INSET had on the defendants’ actions and whereabouts. Later in May 2013, A/Commr. Rideout discussed with Supt. Bond a plan to move the defendants to a remote location as a means of controlling their behaviour; however, Sgt. Kalkat did not regard this step as necessary to protect the public because he was confident the defendants were dependent upon Officer A and would do nothing without him.

[152] The April 10, 2013, C237 report to National Headquarters referred to a plan to obtain an OPC to monitor conversations between Officer A and Mr. Nuttall and Ms. Korody. This took longer than expected and was not obtained un