Canada (Attorney General) v. Ortis

Canada (Attorney General) v. Ortis
Court (s) Database
Federal Court Decisions
Date
2022-02-08
Neutral citation
2022 FC 142
File numbers
DES-5-20
Decision Content
SUBJECT TO A PUBLICATION BAN
Date: 20220209
Docket: DES-5-20
Citation: 2022 FC 142
Ottawa, Ontario, February 9, 2022
PRESENT: Mr. Justice Norris
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
CAMERON JAY ORTIS
Respondent
and
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
AMENDED ORDER AND REASONS
I. OVERVIEW [1] Cameron Jay Ortis is charged with a number of offences under the Security of Information Act, RSC 1985, c O-5 (“SOIA”), and the Criminal Code, RSC 1985, c C-46. His trial before a judge and jury in the Ontario Superior Court of Justice is scheduled to begin in September 2022. The Public Prosecution Service of Canada (“PPSC”), under the direction of the Director of Public Prosecutions (“DPP”), has carriage of this prosecution on behalf of the Crown.
[2] Mr. Ortis was arrested in September 2019. The charges against him relate to his alleged conduct between January 1, 2014, and September 12, 2019, when he was a civilian employee of the Royal Canadian Mounted Police (“RCMP”). During the material time, he was the Officer-in-Charge of Operations Research relating to the RCMP’s national security mandate and, beginning in April 2016, the Director General of the RCMP’s National Intelligence Coordination Center.
[3] It is undisputed that, in connection with his employment with the RCMP, Mr. Ortis legitimately had access to classified information from a variety of sources including international partners. Indeed, he had access to classified information of the utmost sensitivity.
[4] In very broad strokes, the Crown alleges that Mr. Ortis printed copies of documents containing classified information from the Canadian Top Secret Network (“CTSN”), a highly restricted database to which he had access at his workplace. Mr. Ortis then scanned the documents and stored them on his own electronic devices. The Crown alleges that Mr. Ortis disclosed special operational information (as defined in the SOIA) to unauthorized persons or attempted to do so (counts 1 to 4 in the indictment). The Crown further alleges with respect to other classified information that Mr. Ortis prepared to communicate it unlawfully to a foreign entity (counts 5 to 8). Mr. Ortis is also charged with the Criminal Code offences of unauthorized use of a computer and breach of trust (counts 9 and 10). Those charges generally relate to the same conduct alleged in connection with counts 1 to 8.
[5] Crown disclosure provided to Mr. Ortis has been redacted to protect certain information the release of which, it is alleged, would be injurious to international relations, national defence or national security. The Attorney General of Canada (“AGC”) has applied under section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 (“CEA”), for an order confirming the claims for the prohibition of disclosure of the redacted information. For ease of expression, I will refer to this application generically as a section 38 application and sections 38.01 to 38.17 of the CEA collectively as the section 38 scheme.
[6] Mr. Ortis and the DPP/PPSC are respondents on the section 38 application. As well, in view of the complexity of the issues raised in this application and the volume of material to be considered, at a very early stage, two amici curiae – Mr. Howard Krongold and Ms. Christine Mainville – were appointed to assist the Court.
[7] In addition to the claims over Crown disclosure, the AGC has also made section 38 claims over certain information contained in a summary of the evidence Mr. Ortis wishes to present at his trial in defence to the charges. As will be explained below, through his counsel, Mr. Ortis provided this summary to assist the Court in applying the test for determining whether the AGC’s claims over information in Crown disclosure should be confirmed. The summary was also used to carry out what was in effect an advance vetting of Mr. Ortis’s anticipated trial evidence for objections to disclosure under the section 38 scheme.
[8] I will be adjudicating the section 38 claims advanced by the AGC with respect to Crown disclosure and Mr. Ortis’s anticipated evidence concurrently. As well, with the agreement of the parties, I will be dealing with the redacted information in three phases. The present reasons relate only to the first phase. In this phase, I am only considering certain discrete information relating to counts 5 to 8 in the indictment. The second phase will concern information relating primarily to counts 1 to 4. The third phase will concern the balance of the information relating to counts 5 to 8. Given the overlap between counts 9 and 10 and the other counts, there is no need to consider them separately.
[9] The test for determining whether to confirm a prohibition on disclosure under the section 38 scheme or, instead, to order some form of disclosure (e.g. by lifting redactions or summarizing redacted information) is set out in Canada (Attorney General) v Ribic, 2003 FCA 246. Briefly, I must determine whether the information in question is relevant to an issue in the underlying proceeding – in this case, Mr. Ortis’s criminal trial; if it is relevant, whether its disclosure would be injurious to international relations, national defence or national security; and, if disclosure would be injurious, whether the public interest in disclosure outweighs the public interest in non-disclosure.
[10] For the reasons set out below and in a classified annex, I have concluded that none of the information at issue in the first phase of this application can be disclosed because the public interest in non-disclosure outweighs the public interest in disclosure. As a result, none of this information will be available to Mr. Ortis to defend against counts 5 to 8 in the indictment (or counts 9 and 10 to the extent that they relate to the same alleged conduct as counts 5 to 8). As I will explain, I have reached this conclusion despite the immense importance I attribute to this information for Mr. Ortis’s ability to make full answer and defence to the charges in counts 5 to 8 of the indictment.
II. BACKGROUND [11] In support of the allegations set out in counts 5 to 8, the Crown intends to lead evidence at trial that a significant number of highly classified documents that Mr. Ortis had printed from the CTSN were found on electronic devices seized from his home.
[12] When a document is printed from the CTSN, the name of the person printing the document as well as the date and time the document was printed are printed on the document. Also printed on the document is a “stamp” with a URL uniquely linking the document to the terminal on the CTSN from which it was printed.
[13] The Crown intends to lead evidence that Mr. Ortis had organized and processed electronic copies of documents he had printed from the CTSN in certain ways that, according to the Crown, suggest he intended to disclose them to unauthorized parties. Among other things, the Crown intends to lead evidence that Mr. Ortis had taken steps to remove identifying information or marks from a number of the classified documents on his personal devices. The Crown alleges that this, along with and in the context of other conduct, constitutes preparation for the commission of an offence under section 16 of the SOIA. If proved, such conduct is an offence under paragraphs 22(1)(b) and (e) of the SOIA. (The elements of the relevant offences are discussed in greater detail below.) The Crown’s theory is that Mr. Ortis’s handling of the documents is the actus reus of the offence and, together with his other conduct, is circumstantial evidence of his intention to disclose the classified documents to a foreign entity. There is no direct evidence that he had such an intention.
[14] I do not understand Mr. Ortis to dispute that he obtained and possessed the documents or information in question found on his personal devices. A central issue at trial – if not the central issue – will be what he intended to do with them.
[15] As matters currently stand, the contents of the documents to which counts 5 to 8 relate have been redacted entirely as a result of section 38 claims by the AGC. All that is revealed in the versions of the documents in the Crown disclosure brief are the security markings on the documents and, in a few instances, the identity of the agency that produced the document. This is the form in which the Crown intends to file the pertinent documents at trial. The Crown does not intend to rely on the actual contents of any of the documents to prove counts 5 to 8 (or, to the extent that they relate to the same conduct, counts 9 and 10).
[16] The link between the charges and Mr. Ortis’s past employment gives rise to four unusual features of this application.
[17] First, since he once was privy to the classified documents on his personal devices, at one time Mr. Ortis knew what their redacted contents are. While it has been some time since he last had access to the original unredacted documents, Mr. Ortis believes he recalls the classified contents of at least some of them to at least some extent. Without at this stage confirming or denying the accuracy of any of Mr. Ortis’s recollections, it is nevertheless fair to say that he is in a very different position regarding at least some of the information that has been redacted from Crown disclosure than is typically the case for an accused person who is a respondent in a section 38 proceeding.
[18] Second, given that the charges relate to classified information to which Mr. Ortis once was privy, it was recognized that he needed to be able to discuss classified information with his defence counsel, Mr. Ian Carter, in order to prepare for trial. Consequently, arrangements were made for Mr. Ortis to consult with and instruct Mr. Carter in a secure fashion. Mr. Carter holds a Top Secret security clearance and is a person permanently bound to secrecy under the SOIA.
[19] Mr. Carter acts for Mr. Ortis not only in relation to the criminal charges but also in the present application. As a result of the instructions he was able to obtain from Mr. Ortis, and given the nature of the information his client was able to share with him, Mr. Carter requested and was granted the opportunity to provide classified submissions relating to the application of the Ribic test to information redacted from Crown disclosure. These submissions were originally provided ex parte the AGC in order to protect Mr. Ortis’s right to silence vis-à-vis the Crown and, relatedly, his general right not to disclose his defence prior to trial.
[20] Third, to assist the Court in the application of the Ribic test, Mr. Carter provided a summary of the evidence that Mr. Ortis has instructed him he wishes to give at his trial in his own defence. This information was originally included in Mr. Carter’s written submissions. Later, a separate document extracting the synopsis of Mr. Ortis’s anticipated evidence was created. I will refer to this latter document as the Defence Summary. In both its original and extracted form, the summary of Mr. Ortis’s anticipated evidence was initially made available to the AGC, the amici curiae and the Court but it was withheld entirely from the PPSC. It was provided to the AGC and the amici curiae under an Order designed to preserve the confidentiality of its contents from the Crown.
[21] The Defence Summary is not sworn or solemnly affirmed. However, Mr. Carter has confirmed that it is a synopsis of the evidence Mr. Ortis wishes to provide at his trial and, further, that Mr. Ortis has instructed him unequivocally that he wishes to testify in his own defence. No objection was raised to the form in which the defence position has been put before this Court. I have no hesitation in relying on the Defence Summary for the purpose of applying the Ribic test to the information at issue in this proceeding.
[22] Fourth, with Mr. Carter’s agreement on behalf of Mr. Ortis, and governed by the terms of the Order under which it was provided to the AGC, the Defence Summary was reviewed by representatives of interested agencies to determine whether any of its contents gave rise to section 38 concerns. As noted, this served as an advance vetting of Mr. Ortis’s trial testimony. Following this review, the AGC put forward a number of section 38 claims with respect to information Mr. Ortis wishes to present at trial by applying redactions to the Defence Summary. Obviously, the point of these claims is not to keep information from Mr. Ortis – he, of course, already knows exactly what the redacted information is. Rather, the claims mark the information to which the AGC objects on section 38 grounds to Mr. Ortis providing in his testimony at his trial, which will be a public proceeding. If any of the claims over his anticipated evidence are confirmed, Mr. Ortis will be legally precluded from relying on the underlying information when defending himself on the criminal charges. The same is true of information that has been withheld from Crown disclosure.
[23] Following the review of the Defence Summary, the AGC provided Mr. Ortis with a redacted version of the document that identifies the information with respect to which section 38 objections were being made. However, the rationale for the claims has not been disclosed to Mr. Ortis or to Mr. Carter. Nevertheless, to repeat the obvious, Mr. Ortis knows what information the AGC objects to having disclosed at his trial. In this respect as well, he is in a very different position from the typical accused person who is a respondent on a section 38 application.
[24] As this application progressed, Mr. Carter eventually agreed on behalf of Mr. Ortis to share with the PPSC the parts of the Defence Summary that relate to counts 5 to 8. As I understand it, this was done at least in part to facilitate the Crown’s consideration of whether, pursuant to R v Ahmad, 2011 SCC 6 at para 46, it should stay those charges because Mr. Ortis could not have a fair trial (on them) without the information that is being protected. Although at that point the Court had not made a determination on whether the prohibition on disclosure should be confirmed, the PPSC was willing to consider the question on the assumption that this would turn out to be the case. Counsel for the PPSC ultimately informed Mr. Ortis and the Court that they had not been persuaded that a stay was warranted and explained why this was so in terms of the third step of the Ribic test. To be clear, this Court has no role to play with respect to this exercise of Crown discretion. Nevertheless, I welcomed the PPSC’s assessment of the significance of the evidence at issue and I have given it careful consideration when applying the Ribic test.
[25] There is one additional piece of background information that I should mention before explaining how these reasons have been structured.
[26] Subsection 38.14(1) of the CEA provides that the trial judge in a criminal proceeding “may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial,” as long as that order is consistent with the terms of any order made under the section 38 scheme confirming a prohibition on the disclosure of information. In short, section 38.14 of the CEA authorizes the trial judge to remedy any trial unfairness that results from the non-disclosure of information under the section 38 scheme. Such remedial orders can include an order dismissing counts in an indictment, an order permitting the trial to proceed only in respect of a lesser included offence, an order staying the proceedings, and an order “finding against any party on any issue relating to information the disclosure of which is prohibited”: see CEA, subsection 38.14(2).
[27] Mr. Carter has advised the Court and the other parties that he has been instructed to bring an application under section 38.14 of the CEA before the trial judge, the Honourable Justice Robert Maranger, seeking such remedies as may be necessary to protect Mr. Ortis’s right to a fair trial in the event that any of the AGC’s claims are confirmed. Mr. Carter has also advised that, anticipating that at least some of the AGC’s claims would be confirmed, the parties have set dates for this application to facilitate its timely adjudication so that the trial may proceed as scheduled in September. Given the nature of the information that would have to be discussed in connection with that application regardless of what I may determine at this stage, arrangements have been made for the Federal Court’s designated proceedings facility to be used for the hearing of the section 38.14 application. All necessary supports will also be provided to Justice Maranger while he is working there.
[28] As the Supreme Court of Canada explained in Ahmad, the public interest will only be served “if the trial judge in the criminal proceeding is able to exercise his or her discretion with an adequate understanding of the nature of the withheld information. In other words,” the Court continued, “the drastic nature of the potential remedies specified in s. 38.14 leads us to the conclusion that Parliament expected trial judges to be provided with a sufficient basis of relevant information on which to exercise their remedial powers judicially and to avoid, where possible (and appropriate), the collapse of the prosecution” (Ahmad at para 33). One way for the trial judge to be furnished with such information is through a disclosure order under subsection 38.06(2) of the CEA. As Ahmad explains, “the Federal Court judge may authorize partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purpose of the criminal proceeding” (at para 44). Such a step may be required when the trial judge would not otherwise have access to sufficient information to assess the impact of non-disclosure on the accused’s fair trial interests: see Ader v Canada (Attorney General), 2018 FCA 105 at para 38. I am satisfied that this is the case here, at least with respect to the information at issue at this stage.
[29] My suggestion (which was accepted by the parties and the amici) that the section 38 application be adjudicated in phases was motivated, at least in part, by the belief that this would assist in the timely adjudication of any application(s) that may be brought under section 38.14 of the CEA – particularly an application in relation to counts 5 to 8 of the indictment. With this in mind, I have crafted this Order and Reasons in a way that seeks to ensure that the trial judge has the information he requires to discharge his responsibilities under section 38.14 while also ensuring that this information continues to be protected from wider disclosure.
[30] Finally, it bears noting that whether it will be necessary to adjudicate the third phase of this proceeding (described in paragraph 8, above) depends on any rulings that may be made by the trial judge under section 38.14 of the CEA with respect to counts 5 to 8 in light of the present Order and Reasons.
III. THE STRUCTURE OF THESE REASONS [31] As I have already stated, the present Order and Reasons relate only to the first phase of the section 38 application. The information at issue is highly classified. Some of this information is included in the Defence Summary; other information is in Crown disclosure. My conclusion that the AGC’s claims over this information should be confirmed affects the extent to which these reasons can be made public or even made available to Mr. Ortis and his counsel. On the other hand, I am satisfied the information at issue as well as my analysis of it under the third step of the Ribic test should be available to the trial judge for his assistance in relation to any application that may be brought under section 38.14 of the CEA.
[32] Accordingly, these reasons and order consist of three parts.
[33] First, the main body of the reasons provides the general background to this application (including the charges faced by Mr. Ortis), discusses the Ribic test, and explains to a limited extent the application of that test to the information at issue at this stage. Standing alone, this part of the reasons is unclassified, although it is subject to the terms set out below restricting publication and public access to it.
[34] Second, Annex A sets out more detailed reasons relating to the application of the Ribic test to the information at issue in phase one. Annex A is classified. I do not expect that any useful purpose would be served by attempting to redact surgically the potentially injurious information in Annex A so that it could be included with the public reasons in redacted form. Annex A is to be included in the version of these reasons that is provided to the AGC and the amici. It shall not be included in the version provided to Mr. Carter or to the PPSC.
[35] Third, Annex B is a classified discussion of the information at this stage that is intended to assist the trial judge with respect to any application that may be brought under section 38.14 of the CEA as a result of my order confirming the AGC’s claims over that information. This discussion is intended to assist the trial judge in assessing the impact of the non-disclosure order on Mr. Otis’s right to a fair trial. Accordingly, pursuant to subsection 38.06(2) of the CEA, I am authorizing and directing the designated proceedings registry to make Annex B available to the trial judge for his use in connection with any application that may be brought under section 38.14 of the CEA. Annex B shall also be included in the version of these reasons provided to the AGC and the amici. It shall not be included in the version provided to Mr. Carter or to the PPSC.
[36] Finally, the AGC has filed with the Court a version of the Defence Summary with see-through redactions indicating the section 38 claims over that document but not the rationale for any of the claims. On behalf of Mr. Ortis, Mr. Carter does not object to the trial judge seeing this document; on the contrary, he maintains that it is necessary for the trial judge to see the information at issue in order to assess the impact of an order confirming the AGC’s claims on the fairness of Mr. Ortis’s trial. While only a few of the redactions in the Defence Summary are directly in issue at this stage, I agree that the document as a whole will assist the trial judge in any hearing under section 38.14 of the CEA. Thus, again pursuant to subsection 38.06(2) of the CEA, I am authorizing and directing the designated proceedings registry to make a copy of this document available to the trial judge, to counsel for the PPSC and to counsel for Mr. Ortis for their use in connection with any application under section 38.14 of the CEA. For greater certainty, this is the version of the Defence Summary that has also been redacted at Mr. Carter’s request to remove certain information that he (on behalf of Mr. Ortis) has not yet shared with the PPSC. I understand that none of this redacted information relates to counts 5 to 8 in the indictment.
IV. THE PROCEDURE FOLLOWED IN THIS APPLICATION [37] As I have already explained, the AGC has applied to this Court for an order confirming the prohibition on disclosure of certain information that has been redacted from Crown disclosure provided to Mr. Ortis as well as information contained in the Defence Summary. Among other things, the section 38 scheme provides that the hearing of this application may proceed in public, in private, or by a combination of the two: see CEA, subsection 38.11(1). Any private hearing takes place in the Federal Court’s secure facility and only authorized persons are permitted to attend.
[38] The section 38 scheme provides that parties who are permitted to make representations on the application may do so ex parte; indeed, if so requested, the Court must give the AGC the opportunity to make ex parte representations: see CEA, subsection 38.11(2). Any ex parte representations (whether by the AGC or another party) must be made in private: see CEA, subsection 38.11(3).
[39] The AGC’s additional claims over the Defence Summary were incorporated into the original application under section 38.04 of the CEA and are being dealt with at the same time as the claims over Crown disclosure. While this complicated the work of the AGC and the Court somewhat, proceeding in this fashion ultimately enhanced the efficiency and consistency of the Court’s determinations under subsection 38.06(2) of the CEA. Dealing at this stage with objections to the disclosure of certain information Mr. Ortis wishes to provide at trial should also go a long way in minimizing any disruption to the trial because of section 38 concerns.
[40] The AGC commenced this application on July 21, 2020. After a number of preliminary matters were dealt with, the substance of the application proceeded as follows:
First, a public hearing was held on September 20 and 21, 2021.In that hearing, the PPSC presented submissions on the Ribic test.These submissions focused on the charges against Mr. Ortis and the evidence the Crown intends to lead at trial.The PPSC filed a Memorandum of Fact and Law as well as a compendium of the evidence the Crown intends to rely on at trial. This presentation of the Crown’s theory of its case provided a very helpful context for the Court’s ultimate assessment of the relevance and the significance of the redacted information.Counsel for Mr. Ortis was present for this part of the hearing but did not make any submissions.Counsel for the AGC and the amici curiae were also present but did not make any submissions, either.
Second, there was a private hearing at which counsel for Mr. Ortis made submissions on the application of the Ribic test to redacted information in the Crown disclosure brief.Counsel for Mr. Ortis also filed extensive written submissions.Counsel for the PPSC were not present for this part of the hearing.Counsel for the AGC and the amici curiae were present but, again, did not make submissions.
Third, there was a series of private hearings at which the AGC led evidence from representatives of various government agencies, departments and offices to support the contention that the disclosure of the redacted information in the Crown disclosure brief and the Defence Summary would be injurious to international relations, national defence or national security.Specifically, witnesses provided evidence on behalf of the Communications Security Establishment, the Canadian Security Intelligence Service, the RCMP, the Department of National Defence, Global Affairs Canada, the Canada Border Services Agency, and the Privy Council Office.The witnesses were cross-examined by the amici. Counsel for Mr. Ortis was not present at these hearings, nor was counsel for the PPSC.
Fourth, both the AGC and the amici provided classified written submissions on the application of the Ribic test to the information at issue in the first phase of this application.
Fifth, a private hearing was held at which counsel for the PPSC explained its position regarding the specific information at issue in the first phase of this application.Counsel for the PPSC also provided brief unclassified written submissions.Counsel for Mr. Ortis was present for most of this hearing but was excused near the end so that counsel for the PPSC could address certain information in Crown disclosure to which he is not privy because of section 38 redactions.Before he was excused, counsel for Mr. Ortis provided responding submissions on why, in his view, the information that has been redacted from the Defence Summary is crucial to Mr. Ortis’s right to make full answer and defence and why, to the extent that he understands what it may be, redacted information in the Crown disclosure brief provides necessary and essential corroboration for Mr. Ortis’s defence to counts 5 to 8.(By this point, Mr. Carter had already shared parts of the Defence Summary with counsel for the PPSC.)Counsel for the AGC and an amicus were present throughout this hearing.
Finally, while this process is still ongoing, it is anticipated that counsel for the AGC and the amici will provide comprehensive written submissions on the application of the Ribic test to the information at issue in the second phase of this application (relating primarily to counts 1 to 4) and then to the information at issue in the third phase (if necessary in light of any order that may be made by the trial judge under section 38.14 of the CEA).The Court will also hear oral submissions from counsel for the AGC and the amici in both of these respects, if necessary.
[41] I would add one final note regarding the procedure followed in this application. All parties and the Court are acutely aware of Mr. Ortis’s right to a trial within a reasonable time as guaranteed by subsection 11(b) of the Canadian Charter of Rights and Freedoms. Every effort has been made to secure the timely adjudication of the section 38 claims so that, if at all possible, these proceedings will not disrupt the schedule of the trial proceedings.
V. THE SECURITY OF INFORMATION ACT CHARGES [42] Since the elements of the offences with which Mr. Ortis is charged establish the framework within which the relevance and potential importance of the information at issue is to be assessed, it may be helpful to set this out first before turning to the Ribic test itself.
[43] Section 16 of the SOIA provides as follows:
Communications with Foreign Entities or Terrorist Groups
Communication à des entités étrangères ou groupes terroristes
Communicating safeguarded information
Communication de renseignements protégés
16 (1) Every person commits an offence who, without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if
16 (1) Commet une infraction quiconque, sans autorisation légitime, communique à une entité étrangère ou à un groupe terroriste des renseignements à l’égard desquels le gouvernement fédéral ou un gouvernement provincial prend des mesures de protection si, à la fois :
(a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and
a) il croit que les renseignements font l’objet de telles mesures ou ne se soucie pas de savoir si tel est le cas;
(b) the person intends, by communicating the information, to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests or is reckless as to whether the communication of the information is likely to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests.
b) soit il les communique dans l’intention d’accroître la capacité d’une entité étrangère ou d’un groupe terroriste de porter atteinte aux intérêts canadiens, soit il ne se soucie pas de savoir si la communication aura vraisemblablement cet effet.
Communicating safeguarded information
Communication de renseignements protégés
(2) Every person commits an offence who, intentionally and without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if
(2) Commet une infraction quiconque, intentionnellement et sans autorisation légitime, communique à une entité étrangère ou à un groupe terroriste des renseignements à l’égard desquels le gouvernement fédéral ou un gouvernement provincial prend des mesures de protection si, à la fois :
(a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and
a) il croit que les renseignements font l’objet de telles mesures ou ne se soucie pas de savoir si tel est le cas;
(b) harm to Canadian interests results.
b) la communication porte atteinte aux intérêts canadiens.
Punishment
Peine
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.
(3) Quiconque commet l’infraction prévue aux paragraphes (1) ou (2) est coupable d’un acte criminel passible de l’emprisonnement à perpétuité.
[44] In the present case, the Crown alleges that, among other things, Mr. Ortis engaged in conduct that constitutes preparatory acts in relation to the commission of an offence under section 16. If proven, this is an offence under section 22 of the SOIA. In relevant part, section 22 provides as follows:
Preparatory acts
Accomplissement d’actes préparatoires
22(1) Every person commits an offence who, for the purpose of committing an offence under subsection 16(1) or (2) [. . .] does anything that is specifically directed towards or specifically done in preparation of the commission of an offence, including
22 (1) Commet une infraction quiconque accomplit un acte en vue ou en préparation de la perpétration d’une infraction prévue à l’un des paragraphes 16(1) ou (2), 17(1), 19(1) ou 20(1), notamment :
[. . .]
[. . .]
(b) obtaining, retaining or gaining access to any information;
b) obtient ou retient des renseignements ou en obtient l’accès;
[. . .]
[. . .]
(e) possessing any device, apparatus or software useful for concealing the content of information or for surreptitiously communicating, obtaining or retaining information.
e) possède un instrument, du matériel ou un logiciel utile pour la dissimulation de la teneur de renseignements ou la communication, l’obtention ou la détention secrètes de renseignements.
Punishment
Peine
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years
(2) Quiconque commet l’infraction prévue au paragraphe (1) est coupable d’un acte criminel passible d’un emprisonnement maximal de deux ans.
[45] As set out above, section 16 of the SOIA makes it an offence to, without lawful authority, communicate safeguarded information to a foreign entity or a terrorist group. The Crown has not, in connection with counts 5 to 8, specified in the indictment whether it alleges the intended recipient of safeguarded information was a foreign entity, a terrorist group, or both. However, in response to a question from the Court about the scope of the case Mr. Ortis must meet, counsel for the PPSC pointed out that there are no references to any terrorist group in the Crown disclosure pertaining to counts 5 to 8. What I take from this is that, despite counts 5 to 8 incorporating section 16 of the SOIA without limitation, the Crown only alleges that Mr. Ortis committed preparatory acts for the communication of safeguarded information to a foreign entity.
[46] “Foreign entity” is defined in subsection 2(1) of the SOIA as follows:
foreign entity means
entité étrangère
(a) a foreign power,
a) Puissance étrangère;
(b) a group or association of foreign powers, or of one or more foreign powers and one or more terrorist groups, or
b) groupe ou association formé de puissances étrangères ou d’une combinaison d’une ou de plusieurs puissances étrangères et d’un ou de plusieurs groupes terroristes;
(c) a person acting at the direction of, for the benefit of or in association with a foreign power or a group or association referred to in paragraph (b);
c) personne agissant sur l’ordre d’une puissance étrangère, ou d’un groupe ou d’une association visé à l’alinéa b), en collaboration avec lui ou pour son profit.
[47] “Foreign power”, an element of the definition of “foreign entity” is defined in subsection 2(1) of the SOIA as follows:
foreign power means
puissance étrangère
(a) the government of a foreign state,
a) Gouvernement d’un État étranger;
(b) an entity exercising or purporting to exercise the functions of a government in relation to a territory outside Canada regardless of whether Canada recognizes the territory as a state or the authority of that entity over the territory, or
b) entité faisant ou prétendant faire fonction de gouvernement pour un territoire étranger, que le Canada reconnaisse ou non le territoire comme État ou l’autorité de l’entité sur celui-ci;
(c) a political faction or party operating within a foreign state whose stated purpose is to assume the role of government of a foreign state;
c) faction ou parti politique exerçant son activité à l’étranger et dont le but avoué est d’assumer le gouvernement d’un État étranger.
[48] The indictment does not particularize the foreign entity to which it is alleged Mr. Ortis was preparing to communicate safeguarded information. The Crown takes the position that, consequently, it is not necessary for it to prove that Mr. Ortis was preparing to communicate safeguarded information to any foreign entity in particular; he can be found guilty of counts 5 to 8 as long as the jury is satisfied beyond a reasonable doubt that the intended recipient was a foreign entity. Be that as it may, the Crown also alleges that evidence including “to do” lists kept by Mr. Ortis, his handwritten notes, and business cards for officials of a foreign entity that Mr. Ortis collected establish that he was preparing to clandestinely share classified documents with a foreign entity. As I understand this evidence, it all points largely if not entirely to one particular foreign entity. I will consider the implications of this in the public reasons below as well as in the classified reasons.
[49] Further, the indictment does not particularize whether the Crown is alleging that Mr. Ortis was preparing to commit an offence under subsection 16(1) or subsection 16(2) of the SOIA. However, based on the Evidence Narrative filed by the PPSC in connection with this application, it appears that the Crown’s focus is Mr. Ortis’s alleged preparation for the commission of an offence under subsection 16(2). As set out above, in the present case, the essential elements of this offence are:
the person intentionally and without lawful authority communicates to a foreign entity information that the Government of Canada is taking measures to safeguard;
the person believes or is reckless as to whether the information is information the Government of Canada is taking measures to safeguard; and
harm to Canadian interests results.
[50] The actus reus of an offence under subsection 22(1) of the SOIA is exceptionally broad – anything that someone does. The critical constraint on this broad actus reus is the mens rea that must accompany the person’s acts: c.f. R v Legare, 2009 SCC 56 at para 35. Here, the required mens rea is that the acts have been done “for the purpose of” committing one of the listed offences. In the present case, the Crown must establish that Mr. Ortis’s acts were for the purpose of committing an offence under section 16 of the SOIA. As subsection 22(1) also states, to constitute preparatory acts under that provision, Mr. Ortis’s acts must have been “specifically directed towards or specifically done in preparation of the commission of the offence.”
[51] Section 22 of the SOIA creates an incipient or inchoate offence, that is, “a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime” (Legare at para 25, referring to subsection 172.1(1)(c) of the Criminal Code, which has a similar structure). It criminalizes conduct that precedes the commission of the offences to which it refers.
[52] There can be no doubt that, in the case of such an offence, the intention of the accused must be determined subjectively. The accused must be shown to have engaged in the prohibited conduct with the specific intent of pre