In a democracy that prides itself on the rule of law, no one in Canada is above the law, even – and especially – those charged with enforcing it, i.e. law enforcement agencies and their members. Nothing subverts the faith a society has in its legal institutions more than the belief that laws are not applied equally to all citizens, irrespective of their social status or the power and influence they wield. We rightfully demand that there is one law for all and that all are subject to it.
Recently in Canada, there has been some debate over a technique used by law enforcement agencies that has come to be known as the ‘Mr. Big’ practice and which some have seen as overzealous. Developed reportedly by the RCMP some decades ago, Mr. Big operations are ones in which a suspected criminal is led to believe that a large illegal (yet fictitious) outfit wants him to join and, once a trusting relationship has been established, the unwitting criminal confesses to having committed an offence, allowing the police to gain evidence to use in court.
The Supreme Court of Canada declared its discomfort with the tactic in rulings issued in 2014 (the Court stated that the Mr. Big approach could be used, albeit carefully, and that the alleged criminal cannot be put in a position where he feels that he is coerced or fearful of serious physical harm should he not give Mr. Big the response he wants). The debate over the tactic has also surfaced in two recent terrorist trials.
In 2013 John Nuttall and Amanda Korody were arrested after placing pressure cooker bombs near the BC Legislature on Canada Day. After being convicted by a jury, the couple had their charges thrown out when an appeals judge found that the RCMP had essentially entrapped the pair in what amounted to a Mr. Big-style operation.
More recently, in an ongoing trial in Quebec, a judge has ruled that the RCMP’s use of the technique, and the evidence gained through it, were in fact admissible in court. As a result, the trial of Ismael Habib, who has been charged with trying to leave Canada to join IS, can continue.
Two rulings, two very different outcomes. Which one is valid? While each case must be looked at on its own merits, I will argue, not surprisingly, that the Mr. Big tactic should be allowed, especially in terrorism cases.
A terrorism investigation should ideally be carried out before an attack has taken place since doing so afterwards may serve justice but it does little for the families of the dead and wounded. In this type of inquiry, authorities are attempting to ascertain how committed a person is to the execution of a crime that is by definition motivated by ideology (political, religious or other). This is in effect conspiracy to commit terrorism. To do so, law enforcement has to see how far a person will go and to do that it has to place agents near to the potential perpetrator. That agent has to be of a similar mindset to the terrorist and not placed in situ to dissuade the suspect. Arguing about the merits of terrorism is firstly not a job for the police and secondly such action would most probably cause the suspect to go elsewhere for support, thus introducing a dangerous unknown into a legitimate investigation. A good agent seems real and supportive to the suspect and is a valuable source of intelligence/evidence as to the designs of a terrorist. That evidence in turn can be used to charge the suspect and bring the matter to court.
So long as the agent is not threatening violence, the Mr. Big approach should be considered valid under Canadian law. Rather than ‘creating’ terrorists (as was alleged in the Nuttall/Korody appeal), it is an excellent way to determine intent. Serious intent should be prosecuted. In the case where a suspect moves away from committing an act of terrorism authorities are faced with a difficult decision: does the person truly no longer pose a threat or is the change of heart temporary? The implications of choosing wrongly between these two hypotheses are enormous.
Everyone in Canada should abide by our laws and everyone who transgresses should be held to account, including our protectors. The Mr. Big tactic, however, is a very valuable counter terrorism tool and must be part of the arsenal we give those in security intelligence and law enforcement, provided it is used appropriately. Throwing it out entirely is foolish and makes us less safe.