Crown wins ‘Mr. Big’ arguments at Windsor terrorism trial

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It might have been a ‘Mr. Big’ undercover sting operation that got a Windsor man charged with terrorism offences, but a judge on Monday ruled Seth Bertrand’s rights were not violated in that effort by police.

Superior Court Justice Maria Carroccia’s decision to side with the Crown means the prosecution’s main evidence in the case against Bertrand has been deemed lawfully obtained and admissible.

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Bertrand, now 21, was arrested by the RCMP in May 2022 and charged with “participation in the activity of a terrorist group” for allegedly seeking to join and support the Atomwaffen Division, a far-right neo-Nazi organization banned in Canada and other countries.

The Crown’s case in the criminal trial hinges on the alleged self-incriminating statements Bertrand made — which were secretly recorded — during interactions with undercover federal police agents posing as Windsor “business” people offering to help the young man with his troubles with the law.

Mr. Big operations are controversial — including concerns over reliability and prejudice involved in the fake ruse designed by police — but Canadian courts have ruled such deception can be admissible if the value of the evidence gained outweighs the potential harm to the accused’s Charter rights.

Carroccia said the months-long undercover sting against Bertrand was “sufficiently similar to a Mr. Big,” but she also pointed to the absence of fear or intimidation (typical in such operations) or monetary gain as enticements.

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The main inducement, the Crown had argued, was promising to “fix things” for Bertrand so he could once again cross the border after being charged with mischief and inciting hatred over a series of previous attacks targeting a same-sex couple and Windsor’s trans community.

The defence had argued Bertrand’s Charter rights were also violated when he wasn’t able to retain0 the counsel of his choice ahead of a police interview following his arrest. His lawyer was on vacation at the time and the accused was offered a list of names of other available duty counsel.

The right to counsel of choice is “not absolute,” Justice Carroccia said in her ruling this week, pointing to “reasonable attempts” made to reach Bertrand’s lawyer. The accused did subsequently reach out to duty counsel but then agreed to sit down with an RCMP sergeant for a “chat” that revealed a lar………….ge portion of what the Crown would then use at trial in its case for the prosecution.

Despite the judge’s rulings favouring the Crown, the defence is still arguing it’s not enough to convict. Bertrand’s lawyer Bobby Russon advised the court the defence will pursue a motion for a “directed verdict” — seeking to have the judge toss out the case ahead of the defence having to introduce any of its own evidence or ahead of any closing arguments being made. That hearing is tentatively scheduled for Jan. 23.

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The trial, which included testimony from two undercover RCMP agents whose identities are protected under a court-ordered publication ban, heard Bertrand used his then-school email account to fill out an online application to join Atomwaffen, labeled a global terrorist network by Canada.

The defence has argued Bertrand never actually joined the group. But in both secretly recorded conversations and the post-arrest police interview introduced at trial, Bertrand says he “tried to get involved” but that his neo-Nazi interests were in the past.

Under the Criminal Code, a person can be charged with participating in a terrorist group even if no terrorist activity takes place. It’s a serious crime that carries a prison sentence of up to 10 years.

Lawyers based in Toronto and Halifax are arguing the Crown’s case on behalf of the Public Prosecution Service (Canada).

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