COURT OF APPEAL FOR ONTARIO DATE: 20240405 DOCKET: M54904 (COA-24-CR-0156)

Thorburn J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent (Respondent)

and

Cameron Ortis Applicant (Appellant)

Counsel: Jon Doody, for the applicant Lisa Mathews and Judy Kliewer, for the respondent

Heard: March 8, 2024 by videoconference

ENDORSEMENT

A. OVERVIEW

1The applicant, Cameron Ortis, was convicted of four offences contrary to s. 14(1) of the Security of Information Act, R.S.C. 1985, c. O-5 (“SOIA”), namely that on three separate occasions he intentionally and without authority communicated special operational information and on one occasion attempted to do so, to four different individuals. He was also convicted of two Criminal Code, R.S.C. 1985, c. C-46, offences, namely breach of trust contrary to s. 122 and unauthorized use of a computer contrary to s. 342.1(1).

2He now seeks bail pending appeal to this court.

3The test for bail pending appeal is governed by s. 679(3) of the Criminal Code. To obtain bail, the applicant must establish on a balance of probabilities that: (a) the appeal is not frivolous, (b) the applicant will surrender into custody in accordance with the terms of the order, and (c) detention is not necessary in the public interest, which involves a review of public safety and public confidence in the administration of justice: Criminal Code, s. 679(3); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

4The applicant claims he meets the test for granting bail as his appeal is not frivolous, there is no reason to believe he will not surrender into custody when required, and his detention is not necessary in the public interest.

5First, 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.

6Second, the applicant claims there is no evidence to support a finding that he would not surrender himself into custody. He notes that he did not violate any of the terms of his release pending conviction during the roughly one year he was on bail on very strict terms, he did not fail to attend any court appearances over the four years that the matter took to be tried, and when he was on bail, he surrendered himself back into custody without issue.

7Third, he submits that his detention is not necessary in the public interest. The applicant claims that his detention is not necessary in order to preserve public safety as the proposed release plan is more than sufficient to address any public safety concerns. He also submits that his detention pending appeal is not necessary to maintain public confidence as, while the enforceability interest is likely high as these are serious offences, the reviewability interest is equally high given the strength of the grounds of appeal. The applicant submits that “[t]he combination of high interest in reviewability, coupled with low public safety concerns and a very strict bail plan, [demonstrate] that the [applicant]’s detention is not necessary to maintain public confidence in the administration of justice.” The applicant claims, in essence, that he was unable to fully explain why he was doing what he was doing, and therefore outline his intentions, as the s. 38 prohibition orders limited his testimony.

8The Crown submits that the application for bail pending appeal should be dismissed.

9The Crown concedes that the applicant’s appeal is not frivolous as the appeal involves at least one novel issue of first impression for this court.

10The Crown claims however that the applicant fails to meet the second criterion as he poses a “non-trivial risk” that he will fail to surrender himself into custody when required. The Crown argues that the applicant has nothing left to lose: he has lost his employment and reputation, has no dependents, and has been convicted and sentenced to a long period of imprisonment. Moreover, he continues to possess information that, if disclosed, would cause grave harm to Canadian interests and he could seek asylum in any foreign embassy in Canada.

11Third, and most importantly, the Crown claims his detention is necessary in the public interest. The Crown claims that there are public safety concerns and that, in balancing the public confidence issues of enforceability and reviewability, “The seriousness of the offence committed by the applicant, the egregious manner in which it was committed, the harm to Canada that resulted through the loss of the RCMP’s reputation, and the weak grounds of appeal together tip the balance [to enforceability] against his release.”

12The 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.

13Parliament has not restricted the availability of bail pending appeal for persons convicted of serious crimes: Oland, at para. 66. As such, as stated in Oland, at para. 66:

[E]ven in the case of very serious offences, where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest.

14In my view, the applicant has met his onus for obtaining bail pending appeal. First, the appeal is not frivolous. Second, I am satisfied the applicant will surrender as required: he has no prior criminal record, his sureties have proven themselves to be trustworthy, and he has previously abided by all of the terms of his release. Third, I find the public interest criterion is met. The applicant poses no public safety concerns given the very strict terms of the draft release order proposed by the Crown, including house arrest and the electronic monitoring of his activities.

15Moreover, the grounds of appeal clearly surpass the “not frivolous” criterion. They raise new and important issues such as the interpretation of the word “authority” in s. 14 of the SOIA, whether s. 14 is void for vagueness, and whether the redactions made to the applicant’s evidence impeded his right to make full answer and defence such that a remedy pursuant to s. 38.14 of the CEA should have been provided.

16The trial judge himself noted in his reasons for sentence that 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.” He also noted in his reasons on the s. 38.14 application that the applicant’s ability to raise a reasonable doubt about the essential element of whether he was acting without authority and knew he was acting without authority was “somewhat impacted”. If the applicant is successful on appeal, defence counsel requests that the convictions be set aside, and acquittals be entered or a new trial ordered. I therefore find the reviewability interest overshadows the enforceability interest.

17As such, for reasons more fully set out below, the application for bail pending appeal is allowed on the terms set out in the draft order provided by the Crown.

B. Factual Background

18At 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.

19The 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.

20The 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.

21On 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.

22The 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.

23The 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.

24The applicant prepared a will say statement of his anticipated testimony. In the will say statement, he said he would testify that he had the authority to communicate the special operational information in a self-created online undercover operation, based on information received from a counterpart at a foreign agency. The point of the operation, which the applicant called “the Nudge”, was to encourage targets to use a certain email service that had been created by a foreign agency, through which their communications could be intercepted. According to the applicant, the advantage to the RCMP would be that any intelligence collected from that platform would be shared.

25Throughout 2021 and early 2022, the Federal Court held hearings related to the s. 38 claims and throughout 2022 and 2023, it released a number of rulings in respect of the s. 38 claims.

26In their factum on this application, the Crown submits that the only prohibition imposed by the Federal Court on the applicant’s anticipated trial evidence on the s. 14(1) charges was in respect of the identity of the foreign entity.

27This is not correct.

28In 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.

29It 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.

30Based on the s. 38 prohibitions, the applicant brought an application for a stay of proceedings pursuant to s. 38.14 of the CEA. The application was heard by the trial judge.

31On 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.

32In 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.]

33It is not clear what “use to him” the details in the prohibited information were.

34Moreover, 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.

35The 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.

36The 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.

37The 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.

38On 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.

39The 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.

40As 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.”

41The 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.

42On 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.

43He 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.

C. DISCUSSION

(1) Does the appeal meet the “not frivolous” test?

44As the Supreme Court observed in Oland, at para. 20, the “not frivolous” criterion sets “a very low bar”. The applicant must demonstrate that the appeal has some merit such that the appellate process is not abused by those attempting to forestall the execution of a custodial sentence: see R. v. T.S.D., 2020 ONCA 773, at para. 24.

45The parties agree that the applicant’s appeal satisfies the “not frivolous” criterion. The Crown concedes that the appeal raises at least one novel issue. The trial judge himself noted that the likelihood of issues being revisited by higher courts “is always amplified when something in the law has never been done before.”

46It is clear that the appeal satisfies the “not frivolous” test pursuant to s. 679(3)(a) of the Criminal Code.

(2) Will the applicant surrender himself into custody as required?

47The second criterion is whether the applicant will surrender into custody as required: Criminal Code, s. 679(3)(b).

48The terms of the proposed release order provided by the Crown largely mirror the conditions the applicant was under while on bail pending conviction for nearly a year (from December 21, 2022, to November 22, 2023). While on bail awaiting trial the applicant was released on stringent bail conditions that included the following terms:

a) He was released to the supervision of his parents who lived with him, and two other sureties, and was permitted to be out of his residence with a surety for just one two-hour period a day. b) He was under strict house arrest and required to be in the presence of one of his sureties at all times. c) He was prohibited from possessing or using any device capable of accessing the Internet and was prohibited from attending any location with public access to a device capable of connecting to the Internet. d) He was subject to GPS monitoring managed by the RCMP so that his actions could continuously be monitored.

49While the applicant seeks a longer period to be out of his residence in the company of a surety, if the court deems it necessary to keep the two-hour limit, he has agreed to that Crown condition and all of the other prior terms.

50The applicant has at all times surrendered into custody when ordered to do so and did not fail to attend any court appearances or breach any of his bail conditions during the nearly year he was on bail.

51Moreover, I do not agree with the respondent that there is a danger that the applicant would “abscond pending appeal” or seek asylum in a foreign embassy in Canada. If bail is granted, he will be in British Columbia with his sureties who have proven to be trustworthy, and his activity will be monitored through the use of electronic monitoring by the RCMP.

52Finally, I see little merit to the Crown’s argument that the applicant’s surety relationship with his parents is fundamentally flawed because he had a child that he did not tell his parents about. The applicant’s disclosure is a personal matter, not a matter of obeying laws.

53For these reasons, I am satisfied that the applicant will surrender into custody as required.

(3) Is detention necessary in the public interest?

54The central issue on this application is whether detention is necessary in the public interest. Section 679(3)(c) of the Criminal Code provides that an applicant may be released on bail pending appeal if “his detention is not necessary in the public interest.”

55The meaning of “public interest” in the context of bail pending appeal applications was described by Arbour J.A., for a five-judge panel, in R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 113:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice.

56Therefore, the public interest criterion consists of two components: (i) public safety and (ii) public confidence in the administration of justice: Oland, at paras. 23 and 26; Farinacci, at p. 113.

57These two components are not silos and, where the public safety threshold has been met by an applicant, residual public safety concerns or the absence of public safety concerns should be considered in the public confidence analysis: Oland, at para. 27.

58In terms of the public safety component, as previously mentioned, the applicant was on bail pending conviction for nearly a year without incident. He was subject to constant electronic monitoring, other monitoring, and supervision by his sureties, just as he would be if he is released on bail pending appeal.

59As noted by the Crown, in the context of judicial interim release, a court can look to past behaviour for assistance in assessing predictors of future behaviour. Since there was no instance of non-compliance during the extended period on bail, I see no significant public safety concern given the stringent conditions of the applicant’s proposed bail pending appeal.

60I turn now to a consideration of the public confidence component.

61The court in Oland, at para. 28, noted that “[a]ppellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.” Moldaver J. continued, saying, at para. 29, that “[r]arely does [the public confidence] component play a role, much less a central role, in the decision to grant or deny bail pending appeal.”

62This is one of those rare cases where the public confidence component plays a central role in an application to grant or deny bail pending appeal.

63As outlined in the quote above, at para. 55 of these reasons, from Farinacci, the public confidence component of the public interest criterion balances two interests: enforceability and reviewability. Enforceability is the need to respect the general rule of immediate enforceability of judgments, and reviewability reflects society’s acknowledgment that persons who challenge their convictions should be entitled to a meaningful review process: Oland, para. 25.

64The seriousness of the offence and the strength of the grounds of appeal are among the most important factors in assessing enforceability and reviewability: Oland, at paras. 37 and 40.

65Seriousness is measured by the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment: Oland, at para. 38. The absence of flight or public safety risks will attenuate the enforceability interest: Oland, at para. 39.

66The assessment of the strength of the appeal extends beyond finding that the grounds of appeal are not frivolous to a more comprehensive assessment of the merits of the appeal, keeping in mind that a meaningful review is essential to maintain public confidence in the administration of justice. The remedy sought on appeal may also inform the reviewability analysis. If, for example, a successful appeal would only result in reducing a charge but not an acquittal, that would lessen the interest in reviewability: Oland, at paras. 40-46.

67In balancing the relevant factors, public confidence is to be measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values: Oland, at para. 47. As Moldaver J. said in Oland, at para. 47, “[P]ublic confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.”

68In Oland, at paras. 65-67, the court decided that Mr. Oland’s detention pending appeal of his murder conviction had been unwarranted, holding that:

By all accounts, aside from the seriousness of the offence for which Mr. Oland was convicted, he presented as an ideal candidate for bail. The notoriety of this case, which stemmed largely from his prominence in the community, and any uninformed public opinion about it, were rightly ignored by the appeal judge. Mr. Oland, I emphasize, was entitled to the same treatment as someone less prominent.

In the circumstances, there is considerable merit to Mr. Oland’s submission that if he did not qualify for release, no one convicted of a similarly serious offence would ever be released, absent a showing of unique or exceptionally strong grounds of appeal. That cannot be right. Parliament did not restrict the availability of bail pending appeal for persons convicted of murder or any other serious crime and courts should respect this. Thus, for the purposes of s. 679(3)(c), even in the case of very serious offences, where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest.

Every case is different and there may be operative factors in other cases, such as a prior criminal record, public safety and flight risk concerns, or a weaker release plan, which could raise concerns warranting detention. Emphatically, a contextual analysis that can account for these differences is required. [Italics in original; underlining added.]

69In applying the law to this case, there is no doubt that these are very serious offences that affect our national and international security and the security of all Canadians. The severity of the offences is reflected in the 14-year global sentence imposed, which the Crown seeks leave to appeal on the basis that the sentence is demonstrably unfit given the gravity of the offences and the moral blameworthiness of the offender.

70However, as noted above, Parliament did not restrict the availability of bail pending appeal for persons convicted of serious crimes and courts should respect this. Moreover, as I have explained, there is an absence of public safety risks which attenuates the enforceability interest as the applicant has no prior criminal record, is not a flight risk, and there is a very strong release plan.

71I now turn to the strength of the appeal. A number of the grounds of appeal raised by the applicant involve trial fairness. They include that the trial judge erred by: failing to find that the restrictions placed on the applicant’s testimony adversely affected his right to a fair trial, and failing to provide a remedy pursuant to s. 38.14 of the CEA; granting the Crown’s application pursuant to s. 486 of the Criminal Code to close the court during the testimony of several witnesses; not including proper instructions to the jury on motive; and revoking his bail after conviction without hearing submissions from the applicant’s counsel. The applicant raises two other grounds of appeal: that the trial judge erred in failing to find that s. 14 of the SOIA was unconstitutionally vague and erred in his interpretation of the word “authority” within s. 14.

72The following analysis focuses on the first ground of appeal, relating to the s. 38 redactions to the applicant’s proposed testimony and the failure to order a stay. The applicant claims, in essence, that he was unable to fully explain why he was doing what he was doing, and therefore outline his intentions, as the prohibition orders did not allow him to identify the foreign agency or explain the full content of the information that was provided to him.

73The Crown submits that the applicant was not prohibited from testifying at trial about his motive – that there was a “grave threat to Canada” – and in fact, the trial judge instructed the jury that “Cameron Ortis’ motive is the most important question” (emphasis in original) and that “the absence of motive will be a critical reason why the Crown has failed to prove guilt beyond a reasonable doubt.”

74However, portions of his 22-page summary of anticipated testimony were redacted, and the applicant claims he was prevented from fully explaining his actions and denied the ability to provide relevant testimony in his own defence. In particular, he was prevented from providing a full explanation as to what information he received from the foreign entity, which served as the impetus behind his decision to do what he did, and why his motive was to further Canada’s interests and not for any criminal purpose. He therefore claims the trial judge erred in failing to find that the right to a fair trial was adversely affected and erred in not providing a suitable remedy pursuant to s. 38.14 of the CEA.

75This is both a novel issue in this context, and an important issue on appeal as s. 38.14 does not provide a specific test to determine when a non-disclosure order adversely affects an accused’s right to a fair trial to the extent that the remedy of a dismissal of a count or a stay of proceedings is warranted. As noted above, the trial judge himself stated 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.”

76Given that the appeal raises novel issues which, if successful on appeal, could result in setting aside the conviction and entering an acquittal or ordering a new trial in which the applicant would be presumed innocent, the grounds of appeal clearly surpass the “not frivolous” criterion and the reviewability interest in this case is significant.

77As such, in the unusual circumstances of this case, the applicant has established on a balance of probabilities that the reviewability interest outweighs the enforceability interest. Given that the public safety factor is satisfied, he has satisfied the third criterion on a balance of probabilities.

D. CONCLUSION

78For these reasons, the application for bail pending appeal is allowed on the strict terms set out in the Crown’s draft order, save for the modification of Condition 30 ("You may be released once one of your sureties attends the Ottawa Carleton Detention Center") to permit the applicant to be released to a surety or to his legal counsel (who resides in Ottawa) who has agreed to transport him to the airport and into the custody of his surety.

79For clarity, the bail order includes the restriction on the applicant’s right to leave his residence in the company of a surety to two hours per day, between 6:00 a.m. and 9:00 p.m., sought by the Crown.

“Thorburn J.A.”

1Section 14 provides that: “14 (1) Every person permanently bound to secrecy commits an offence who, intentionally and without authority, communicates or confirms special operational information. (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 14 years.”