A Surrey couple suing prosecutors, police officers and the provincial and federal governments after being acquitted of terrorism-related crimes hit a roadblock in B.C. Supreme Court in Vancouver on April 17 when the court denied their application to serve interrogatories – or requests for more information – on the Crown defendants to disclose the names of three undercover police officers in the investigation.
A jury in 2015 found the Whalley couple guilty of plotting to blow up pressure cooker bombs containing rusty nails, nuts and bolts outside of the B.C. Legislative Buildings in Victoria on Canada Day in 2013. But John Stuart Nuttall and Amanda Marie Korody were later acquitted, in 2016.
“The criminal proceedings were ultimately stayed based on a finding of abuse of process and entrapment,” Master John Bilawich noted in his April 17 reasons for judgment.
Nuttall and Korody then filed in 2021 a lawsuit claiming damages against the defendants, who are listed as Canada (Attorney General), Ministry of Public Safety and Solicitor General (British Columbia), Officer A, Officer C, Officer D, Stephen Matheson, Bill Kalkat, Stephen Corcoran, Daniel Bond, Peter Eccles, Sharon Steele, and John Doe.
Bilawich decided to renew an amendment to the plaintiffs’ notice of civil claim for another six months, which was not opposed.
“The plaintiffs’ application for leave to serve the proposed interrogatories is dismissed,” he also decided.
Nuttall and Korody on Feb. 23, 2013 became the subjects of an undercover police operation code-named “Project Souvenir” that continued until July 1, 2013, resulting in four terrorism-related charges. Their trial by judge and jury began on Feb, 2, 2015, resulting in the couple being acquitted on one count, a conditional stay of proceedings on another and convictions on two counts. They then applied for a stay of proceedings that was based on entrapment and abuse of process and on July 29, 2016, their application was granted, the Crown appealed the stay of proceedings and on Dec. 19, 2018 the appeal was dismissed.
“On March 25, 2021, the plaintiffs started this action,” Bilawich noted.
Bans were ordered in the B.C. Supreme Court and Court of Appeal proceedings that restrict publication, broadcasting or transmission of evidence that could identify any undercover police officers. “Sealing orders were also made which restrict access to the court files to counsel of record and court personnel. The bans and sealing orders remain in effect indefinitely.”
The couple’s lawyers do not know the names of officers A, C and D and thus haven’t been able to serve the notice of civil claim on them.
“They also proposed that the officers voluntarily accept service through their counsel of choice, which has not been taken up,” Bilawich noted in his reasons. The federal Department of Justice advised on March 9 that the Crown defendants “would not consent to the interrogatories being served.”
Bilawich decided that until issues concerning the publication bans and sealing order issues are addressed, “simply granting leave to serve interrogatories is unlikely to achieve the result that the plaintiffs desire. To the extent that allowing service of interrogatories could also circumvent or conflict with the terms of the publication bans, it appears doubtful that a Master can or should make such an order in the circumstances. The publication bans and sealing orders should be addressed first.”
“I conclude that it would not be appropriate for the plaintiffs to serve the proposed interrogatories,” Bilawich determined. “Consideration first needs to be given to how to preserve the safety and security of Officers A, C and D and their families within this action. That may well involve extending the existing publication bans and sealing orders to include this action. Those issues will have to be addressed before a judge of the court.”