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National Security - Security of Information Act (SOIA). R. v. Ortis
In R. v. Ortis (Ont CA, 2024) the Ontario Court of Appeal considered a bail pending appeal motion, here in rare convictions under the federal Security of Information Act ('SOIA') [s.14(1)].
The selections harvested here illustrate aspects of the substance and procedure of the SOIA, of which this is apparently the first prosecution:[5] First, he claims his appeal to this court involves a number of new issues including that he was: (i) the first person prosecuted under s. 14 of the SOIA[1], (ii) the first person to challenge the constitutional validity of s. 14, (iii) the first person required to provide the government a summary of his anticipated testimony in advance of providing his defence which was then screened pursuant to s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”) and redacted, and (iv) the first person prevented by s. 38 redactions from providing details he claims were necessary for his defence. Moreover, this is the first time a stay of proceedings was sought pursuant to s. 38.14 of the CEA as a result of an accused having their anticipated testimony limited by s. 38. As such, the applicant submits that the appeal is not frivolous and in fact raises several issues of importance.
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[12] The Crown notes that when these offences were committed the applicant held a position of extreme trust. He was convicted of unauthorized, intentional communication of special operational information to high-level targets of international criminal investigations which is reflected in two consecutive sentences of seven years’ imprisonment, which the Crown seeks leave to increase on appeal, due to insufficiency. The Crown claims the appeal “lacks legal plausibility” and that the public would be shocked if the applicant were released pending appeal.
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[18] At the time of his arrest, the applicant held a high position in the national security division of the RCMP: he was Director General of the RCMP’s National Intelligence Coordination Centre. He had access to highly classified information, including information that was considered top secret, and he was permanently bound to secrecy pursuant to the SOIA.
[19] The police seized from his residence an encrypted USB device containing evidence that the applicant had collected special operational information relating to individual targets of international organized crime and money laundering investigations.
[20] The authorities discovered that the applicant had communicated or attempted to communicate special operational information to four individuals. On September 12, 2019, the RCMP arrested the applicant and charged him with:. One count of intentionally and without authority communicating special operational information while being permanently bound to secrecy contrary to s. 14(1) of the SOIA;
. One count of gaining access to, one count of obtaining, and one count of retaining information specifically directed towards or specifically done in preparation of the commission of an offence under ss. 16(1) or 17(1) of the SOIA, contrary to s. 22(1)(b) of the SOIA;
. One count of possession of a device, apparatus, or software useful for concealing the content of information or surreptitiously communicating, obtaining, or retaining information specifically directed towards or specifically done in preparation of the commission of an offence under ss. 16(1) or 17(1) of the SOIA, contrary to s. 22(1)(e) of the SOIA;
. One count of fraudulent use of a computer service contrary to s. 342.1(1) of the Criminal Code; and
. One count of breach of trust contrary to s. 122 of the Criminal Code. [21] On August 28, 2020, the applicant was charged with two additional counts contrary to s. 14(1) of the SOIA and one count of attempting to communicate special operational information contrary to s. 14(1) of the SOIA. All of these charges related to his conduct between January 2014 and September 2019.
[22] The police also found 400 classified documents relating to national security on a laptop in his residence, some of which had been electronically processed so as to be stripped of their identifying marks. The documents had been printed from a computer terminal on the Canadian Top Secret Network (CTSN), which is a highly classified network used for information sharing within the Canadian law enforcement intelligence community.
[23] The nature of the charges meant that Crown disclosure would contain highly classified information. National security, national defence, or international relation claims pursuant to s. 38 of the CEA were made by the Attorney General of Canada prohibiting disclosure of certain documents and information, as well as certain information contained in a summary of the applicant’s anticipated trial testimony. The Attorney General applied to the Federal Court for an order confirming the prohibition of disclosure of certain information.
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[28] In his final charge to the jury, the trial judge noted that:Cameron Ortis explained that in September 2014 he was contacted by a counterpart in a foreign agency, who shared information with him. Mr. Ortis was unable to explain the full content of what that information was, or even what the foreign agency was, but he did explain what he could. [29] It is clear from reviewing the applicant’s will say statement that large portions of his proposed testimony on this issue are redacted. The applicant claims he was denied the ability to testify about details of the information he got from the foreign agency and in particular, the central issues of his authority and his motive for doing what he did.
[30] Based on the s. 38 prohibitions, the applicant brought an application for a stay of proceedings pursuant to s. 38.14 of the CEA [SS: 'Canada Evidence Act', 38.14: 'Protection of right to a fair trial']. The application was heard by the trial judge.
[31] On October 13, 2022, the trial judge delivered an oral decision, followed by written reasons on May 24, 2023, in which he dismissed the four s. 22(1) counts under the SOIA, on the basis that the prohibition orders in place and resulting s. 38 redactions would effectively deprive the applicant of the right to a fair trial on these counts. However, he ordered the trial to proceed on the remaining four counts under s. 14(1) of the SOIA and the two counts under the Criminal Code.
[32] In ordering these counts to proceed, the trial judge held, in written redacted supplementary classified reasons, at paras. 27-29, that:I concluded in this instance that there was some impact [on the applicant’s ability to raise a reasonable doubt as to an essential element of the offence]. However, I could not conclude that it was sufficiently meaningful to warrant a stay of proceedings or dismissal of the count.
This approach was taken throughout.
In more general terms respecting the inability to use the prohibited information involved the following analysis:
• Mr. Ortis has indicated that he will testify will [sic] and put forth a defence on a specific element of the offence. He will state that his actions were part of a legitimate investigative step that he was undertaking within the scope of his authority/as the officer in charge of operations research with the RCMP. That he was acting within the scope of his authority or believed he was when he took the actions that form part of the factual allegations in support of counts 1 to 4. That his goal was to get certain targets to use an email provider through which their private communications could be intercepted.
• He will testify about the details of the "undercover operation" but he will be prohibited from referencing certain specific matters by reason of the section 38 Federal Court Orders.
• The suggested revisions to the defence summary and the scope of Mr. Ortis's permissible testimony as set out for example at paragraphs 12 and 22 of Annex C, support the proposition that the defence of having the authority or the honest but mistaken belief therein can still be meaningfully presented to a jury in the particular circumstances of this case.
• The details contained in the prohibited information while of some use to him, do not meaningfully impact his ability to present his contemplated defence in a fulsome manner. [Emphasis added.] [33] It is not clear what “use to him” the details in the prohibited information were.
[34] Moreover, prior to the commencement of the trial, the applicant brought a constitutional challenge to s. 14(1) of the SOIA claiming that the words “without authority” were unconstitutionally vague, because Parliament chose to use the words “without lawful authority” elsewhere in the SOIA.
[35] The Crown’s position was that “authority” in s. 14 connotes a status of permission held by persons permanently bound to secrecy. The words “without authority” only appear in the SOIA in relation to persons permanently bound to secrecy: see ss. 13(1), 14(1), 14(2). Persons not permanently bound by secrecy cannot commit an offence under s. 14. The “authority” of persons permanently bound to secrecy derives from the duties and responsibilities of their position with the Government of Canada, the policies that inform the performance of those duties, or authority granted by another such person having the requisite authority to bestow it.
[36] The applicant conceded that he was a “person permanently bound to secrecy” and that the communications were “special operational information” but submitted that communication of special operational information by a person permanently bound to secrecy would not be unlawful if that communication was authorized. As such, the fact that the communication was done “without authority” is an essential element of the offence that must be proven by the Crown beyond a reasonable doubt.
[37] The applicant submitted that both the terms “without authority” and “without lawful authority” were used in the SOIA such that there must be a difference between the two terms. Moreover, the SOIA provides no guidance as to who is permitted to authorize communications, or how authority is granted. He took the position that the term is unconstitutionally vague and therefore violates s. 7 of the Canadian Charter of Rights and Freedoms and should be found to be of no force and effect.
[38] On September 28, 2023, the trial judge dismissed the application orally, with reasons to follow. The trial judge adopted the Crown’s definition of “authority” in his instructions to the jury, and instructed the jury that a mistaken belief that the applicant had authority was not a defence to the s. 14 SOIA charges.
[39] The trial judge noted in his March 28, 2024, ruling on the constitutionality of s. 14 of the SOIA, discussed further below, that at trial:In very broad terms, [the applicant] testified that the actions he took were at the behest of a counterpart who worked for one of our partner countries in the Five Eyes. The stated goal of the operation was to entice specific targets onto an encrypted email platform where their communications could be intercepted as a means of collecting intelligence that would be fed back into the Five Eyes system including the RCMP. He also stipulated that he could not advise any of his superiors of the operation because of the existence of a suspected mole within the RCMP. [40] As noted by the trial judge in his reasons for sentence, there was no tangible evidence of a motive for the commission of the offence: “He was never paid anything by anyone. The why here in my mind remains a mystery.”
[41] The applicant was convicted by a jury on November 22, 2023, and his bail was revoked. On February 7, 2024, the trial judge sentenced the applicant to a global period of imprisonment of 14 years (comprised of two consecutive seven year sentences, and other concurrent sentences), less credit for pre-trial custody and strict bail conditions.
[42] On March 28, 2024, after the applicant was convicted and sentenced and after the hearing of this application, the trial judge released his written reasons on the constitutional challenge. He concluded that s. 14 is directed at a specified class of people, those who are permanently bound to secrecy, and that the words “without authority” taken contextually are not vague; they can only mean the power or right to act.
[43] He held that the sources of authority come from the duties and responsibilities of the person permanently bound to secrecy’s position, including the nature of their work and job description. It could also come from a superior who has the power to grant the authority. One either has the authority to communicate the information or one does not. The “without authority” element of the offence goes to the actus reus not the mens rea of the offence. Moreover, the terms “without authority” and “without lawful authority” in the SOIA are differentiated by those who the sections are meant to capture. The term “without authority” applies to persons permanently bound to secrecy specifically whereas “without lawful authority” applies to persons who are not.
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