COURT FILE NO.: CR-19-20044
DATE: 2023/01/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Cameron Ortis
Applicant
Judy Kliewer and John MacFarlane for the Public Prosecution Service of Canada
Mark Ertel and Jon Doody for Cameron Ortis.
HEARD: December 19, 2022.
Reasons for DECISION on bail review
maranger J.
Introduction
[1] This was an application for a bail review of the detention order of Justice Labrosse dated November 8, 2019, brought on behalf of Cameron Jay Ortis.
[2] On December 21, 2022, I delivered brief oral reasons for granting the bail review application and releasing Mr. Ortis. At that time, it was understood that I would provide written reasons for that decision what follows are those reasons.
Overview
[3] The background to this application was as follows:
• Cameron Jay Ortis was arrested on September 12, 2019, and at that time was charged with 5 offences under the Security of Information Act, R.S.C., 1985, c. O-5, (the “SOIA”) being one count contrary to section 14 and four counts contrary to s. 22 of the SOIA and two offences contrary to Criminal Code of Canada.
• The charges are serious and complex involving allegations of severe breaches of national security and breaches of trust said to have been committed during his employment as a high-ranking civilian member of the Royal Canadian Mounted Police. Since his detention, three additional charges contrary to section 14 of the SOIA were added to the indictment.
• On October 22, 2019, he was released following a contested bail hearing before Justice of the Peace Legault. He was released to the custody of his parents in Abbotsford, British Columbia where they would act as his two sureties with certain conditions imposed restricting his mobility, and access to computer technology.
• On October 30, 2019, a bail review application was heard by Justice Labrosse and for reasons delivered in writing on November 8, 2019, the applicant was detained on the basis that the Justice of the Peace erred in law in concluding that Mr. Ortis had met his onus that he could be released on the secondary and tertiary grounds in the circumstances of his case.
• In his decision, reversing Justice of the Peace Legault, Justice Labrosse highlighted in part the following errors that led to his conclusion:
i. That he failed to consider the limitations on Mr. Ortis’s parents ability to supervise him given his technological computer skills.
ii. That he failed to impose sufficient restrictions: on Mr. Ortis’s ability to use the landline telephone at his parents’ residence, on third parties visiting him at his parents’ residence, on leaving the residence with one of his sureties, and on his interactions with third parties in public while with one of his sureties.
iii. That the order of release did not address the accused ability to communicate information he had in his own memory, or his ability to direct third parties to gain access to information about undercover officers and information about investigations that were not limited to the documents found in his possession.
iv. Finally, that he placed insufficient weight on the gravity of the offences and the circumstances in which they were committed.
• The applicant has been in custody since September 12, 2019, (except for the period October 22, 2019, to November 8, 2019). At the time of the hearing before me he would have been in custody for a period of over three years and two months. The trial of the matter is scheduled for October 2, 2023, for 4 to 5 weeks before a Judge (myself) and a jury.
• Over the course of the year 2022, the court heard an application pursuant to section 38.14 of the Canada Evidence Act, R.S.C., 1985, c. C-5, whereby the accused sought a stay of proceedings as a remedy under that legislation. The thrust of the application was that by virtue of certain federal court orders prohibiting the use of specified classified information at his trial, the accused would be deprived of the right to a fair trial.
• On October 13, 2022, I delivered an oral decision (with the understanding that written reasons would follow in due course) granting the application in part, in that counts 5 to 8 being a specific group of charges under the SOIA were dismissed, while the balance of the counts on the indictment being counts 1 to 4, 9 and 10 would proceed to trial.
• It was conceded by the Crown that this turn of events constituted a material change in circumstances allowing for a review of the detention order.
Relevant Factual Background
[4] Cameron Ortis was arrested on September 12, 2019. The charges relate to his conduct between January 1, 2014, and September 2019 when he was employed as a civilian member of the Royal Canadian Mounted Police (“RCMP”). During that time frame Cameron Ortis rose to the position of Director General of the RCMP’s National Intelligence Coordination Centre. Prior to that he was the officer in charge of operations research relating to the RCMP’s national security mandate.
[5] Cameron Ortis holds a PhD in political science with a specialization in cybersecurity. He is highly intelligent and very knowledgeable in computer technology including sophisticated software respecting the processing of information including the encryption thereof.
[6] The nature of his work granted him authorized access to highly classified information from a variety of sources including international partners. This included access to highly sensitive information that was considered very highly classified or top secret.
[7] The specific allegations in the indictment were as follows:
i. Counts 1 to 4 are charges pursuant to section 14 (1) of the SOIA, namely that Cameron Ortis did on four separate occasions intentionally and without authority communicate special operational information to four different individuals.
ii. Counts 5 to 7 alleged offences contrary to section 22 (1)(b) of the SOIA namely that Cameron Ortis did for the purpose of committing an offence under section 16 of the act: gain access to (count 5), obtain (count 6), and retain (count 7) information specifically towards or in preparation of the commission of an offence. Count 8 is contrary to section 22(1)(e) of the SOIA stipulating the same dates but alleging that he did possess a device, apparatus, or software useful for concealing the content of information or for surreptitiously communicating, obtaining, or retaining information specifically towards or in preparation of the commission of an offence.
iii. Count 9 alleges that Cameron Ortis did fraudulently and without colour of right, obtain directly or indirectly, a computer service, contrary to section 342.1 (1) of the Criminal Code of Canada.
iv. Count 10 alleges that Cameron Ortis did commit a breach of trust in connection with the duties of his office, contrary to section 122 of the Criminal Code of Canada.
[8] Therefore, the context of the bail review is that the applicant is now scheduled to go to trial on 6 of the original 10 counts. Furthermore, he has been in custody awaiting his trial for over three years and two months.
Position of the Parties
[9] Counsel for Mr. Ortis has proposed and put forward the following specific arguments in favour of release:
i. That this court is entitled to conduct a bail review de novo based upon significant changes in circumstances since the decision of Labrosse J. These included the dismissal of four of the charges against him and the ability through the passage of time to review the Crown disclosure and for Mr. Ortis to put forward his defence to the charges which has been disclosed as an affirmative defence.
ii. That the national security concerns that were before Justice Labrosse have substantially diminished by reason of the passage of time. Including the proposition that the applicant was going to imminently meet and disclose national security information to a foreign entity at the time of his arrest.
iii. Furthermore, at the bail review in October 2019 the Crown submitted that the RCMP believed that there was a very real possibility that Mr. Ortis had information of a highly sensitive nature stored in the cloud, that only he could access and thereby reoffend. After three years of investigation the RCMP’s position has changed in that they now indicate that it is unknown if Mr. Ortis has stored copies of classified information in any other location, including on a cloud-based server.
iv. That the passage of time regarding counts 1 to 4, have altered the landscape and substantially reduced pre-existing levels of concern under the secondary and tertiary grounds.
v. That an appropriate release order with strict conditions could adequately address the primary, secondary and tertiary grounds in this case.
[10] The Crown strongly opposed the granting of any release order arguing that the primary, secondary and tertiary grounds remain sufficiently concerning to warrant his continued detention. Their arguments included the following:
i. That the gravity of the offences at play could not be overstated. The level of security clearance that Mr. Ortis had, the sophisticated manner with which he concealed his activities, and the international ramifications – i.e. the loss of confidence in Canada’s security network in the eyes of some of its international security partners – must be very carefully considered when examining the issue of bail in this extraordinary case.
ii. The Crown submitted that on the primary ground; Ortis is a flight risk in the sense that he has nothing to lose given his loss of employment, reputation, and prospect of a lengthy term of imprisonment. Furthermore, because of the depth of his knowledge in intelligence matters and the potential value of that information to Canada’s adversaries, he could seek asylum in any foreign embassy in Canada.
iii. With respect to the secondary ground the Crown submitted in general terms that Ortis’ past, while absent a criminal record, showed a wanton disregard for solemn undertakings, and promises to the RCMP regarding how we would fulfill his responsibilities. That his history should be a consideration with respect to any promises made to comply with a bail order. Furthermore, his level of knowledge and technical sophistication with respect computer technology must be a concern, and that the sureties that are being offered would be incapable of supervising him.
iv. It was further submitted that in the circumstances of this case, even if the court disagreed that there was a substantial likelihood of reoffending, the danger posed by any breach no matter how unlikely, would have exceptionally grave consequences for the public.
v. The Crown submitted that the primary proposed sureties, Mr. Ortis’ parents, were inappropriate. In doing so, they filed as exhibits a series of emails sent by his parents to various politicians including the Attorney General, the prime minister and other political leaders. In general terms the emails are statements concerning their strongly held belief that their son is innocent; that the justice system has moved too slowly; that he has been wrongfully incarcerated for more than three years; that he was a scapegoat for the RCMP; and that the justice system is failing which may result in a wrongful conviction in his case.
vi. Finally, the Crown submitted that continued detention was justified in the circumstances of this case on the tertiary ground. That the accused is charged with extremely grave offences and should be considered one of the most serious offenders. That the Crown’s case is strong, that the offence was exceptionally grave, that the circumstances of the offence constituted an egregious violation of trust, and that he is liable to a lengthy period of imprisonment.
[11] After considering the written submissions of counsel and their able arguments, I concluded that a release order, with conditions considerably more restrictive than those proposed by the applicant was appropriate in this case. I came to that conclusion based upon the following analysis:
i. The circumstances since Mr. Ortis detention in October 2019 have changed considerably. Four of the ten charges he faced have been dismissed and he has been in custody for well over three years.
ii. The passage of time has to a certain degree diminished some of the security and other concerns argued before Justice Labrosse in 2019. For example, the imminent meetings with foreign entities argued to support the 2019 detention decision are no longer a legitimate concern and the RCMP’s further investigations have failed to yield any evidence to support the proposition that Mr. Ortis had stored further classified information in other locations.
iii. With respect to the primary ground, Mr. Ortis was not detained on this ground by Justice Labrosse, and the proposed plan of release with my additional conditions adequately addresses any concerns. House arrest, GPS monitoring, the surrender of any travel documents, and his parents pledging $250,000 in bond are examples of the conditions that in my estimation substantially reduce the risk of flight or non-attendance for his trial. Mr. Ortis has met his onus on the primary ground.
iv. With respect to the secondary ground, the change in the landscape by reason of the passage of time, the fact that no further evidence of stored classified information by Mr. Ortis has been found by the RCMP during three years of investigation, Mr. Ortis having spent 3 plus years awaiting his trial, all act in concert to reduce his risk of reoffending to the extent in my estimation that he no longer poses a substantial risk to reoffend.
v. The court understands the concerns expressed by the Crown regarding the highly sophisticated nature of the alleged crimes and the consequences and impact any breach could have on public safety. However, these risks do not require his continued detention. Mr. Ortis has met his onus, in that any risk under the secondary ground can be placated by stringent conditions severely restricting his ability to access any information, engage with third parties, or utilize any personal computer.
vi. The tertiary ground since the Supreme Court of Canada decision of R v. St. Cloud, 2015 SCC 27, is to be looked upon as a standalone ground that is no longer reserved for rare or exceptional circumstances or certain types of crimes.
vii. The court must examine the combined effect of the four listed factors in section 515 (10)(c) of the Criminal Code namely the strength of the Crown’s case, the gravity of the offences, the circumstances of the offences and the accused’s potential liability to a lengthy term of imprisonment, and whether in the specific case it is necessary to detain the accused to maintain confidence in the administration of justice.
viii. The Crown argued in this case that there were international ramifications to his release, that Canada’s security partners worldwide could lose confidence, and that the public’s confidence in the administration of justice mandated his continued detention.
ix. While the Crown’s argument on the tertiary ground was compelling, and had considerable merit, the changes in this case since the decision of Justice Labrosse in November 2019 including: the dismissal of four counts, the amount of presentence custody, and the disclosure of an affirmative defence on the part of Mr. Ortis, all act in concert to sufficiently reduce the concerns on the tertiary ground, and allow me to conclude that he has met his onus and that detention was no longer necessary to maintain confidence in the administration of justice.
x. Finally, on the facts of this specific and unusual case, at this time, I find that a release order with detailed and very strict conditions is appropriate, and that Mr. Ortis has met his onus; and as the Supreme Court of Canada indicated in R v. Antic, 2017 SCC at para. 1:
“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons”
[12] Therefore, the application for bail was granted, and the specifications of the bail order were those contained in the order of release signed by me on December 21, 2022.
Maranger J.
Date: January 16, 2022
COURT FILE NO.: CR-19-20044
DATE: 2023/01/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: His Majesty the King
and
Cameron Ortis
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Judy Kliewer and John MacFarlane, for the Public Prosecution Service of Canada
Mark Ertel and Jon Doody, for Cameron Ortis.
REASONS FOR DECISION ON BAIL REVIEW
Maranger J.
Released: January 16, 2023