Court File and Parties

COURT FILE NO.: 19-20044 DATE: 2023/05/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – CAMERON ORTIS

BEFORE: Maranger J.

COUNSEL: Judy Kliewer and John MacFarlane, for the Public Prosecution Service of Canada. Mark Ertel and Jon Doody, for Cameron Ortis. Howard Krongold, Amicus Curiae

HEARD: June 20 to June 24 and September 8 and 9, 2022.

Reasons for Decision on Section 38.14 of the Canada Evidence Act Application

Introduction

[1] This was a defence application for a stay of proceedings brought pursuant to section 38.14 (1) and (2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the CEA).

[2] On October 13, 2022, I delivered an oral decision in this matter, whereby I dismissed counts 5 to 8 on a 10-count indictment charging Cameron Ortis with eight separate offences contrary to the Security of Information Act, R.S.C. 1985, c. O-5 (the SOIA) and two offences contrary to the Criminal Code, R.S.C. 1985, c. C-46. The request for a stay of proceedings was denied and the matter is to go forward on counts 1 to 4, 9, and 10 of the indictment. The trial is scheduled to proceed before a Judge (myself) and jury commencing October 2, 2023, for 4 to 5 weeks. My oral decision stipulated that more fulsome written reasons would be provided in due course. These are those reasons.

[3] The application and the ultimate ruling were unusual because the remedy I granted under section 38.14 (2) (a) of the CEA is without a direct precedent. The hearing was held in camera at a secure facility over the course of seven days; it included very highly classified information and evidence. That information and evidence cannot be included in a published decision. In fact, by reason of its highly classified nature it can only be referenced or reviewed at a secure facility.

[4] Writing meaningful and reviewable reasons in this context was a daunting task. Any reference to classified information will necessarily be contained in supplementary reasons that can only be reviewed at a secure facility.

Overview of Charges

[5] Mr. Ortis stood charged with the following 10 offences:

I. Counts 1 to 4 allege offences contrary 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 allege 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: count 5 (gain access to) count 6 (obtain) and count 7 (retain) 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.

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.

[6] Mr. 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 timeframe Mr. 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.

[7] 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.

[8] In general terms counts 1 to 4 of the indictment are allegations that during his employment Mr. Ortis disclosed or attempted to disclose special operational information to certain specified unauthorized persons.

[9] Counts 5 to 8 are allegations that during his employment he printed copies of documents containing classified information from the Canadian Top Secret Network, a highly restricted database to which he had access and scanned the documents and stored them on his own electronic devices. Further, he allegedly took preparatory steps to communicate the information intentionally and unlawfully to a foreign entity.

[10] Counts 9 and 10 are allegations that relate to the alleged unlawful conduct by the accused during his employment, in terms of the unlawful use of his computer, and the actions he took in his capacity as a high-ranking civilian RCMP employee.

[11] The nature of the allegations and charges meant that the Crown disclosure contained a great deal of highly classified information. The Crown took the position that the disclosure of this information could be injurious to international relations, national defence, or national security. These circumstances brought into play the scheme governing classified information set out at sections 38.01(1) to section 38.17 of the CEA.

[12] The Attorney General of Canada (the AGC) was given notice pursuant to section 38.01 of the CEA. They prohibited disclosure pursuant to section 38.03 and in turn applied under section 38.04 of the scheme for an order confirming the claims for the prohibition of Crown disclosure and of certain redacted information. Furthermore, the same claim was made over certain information contained in a summary of the anticipated evidence that Mr. Ortis indicated he would be presenting at his trial in defence of the charges.

[13] In accordance with the scheme set out in section 38, the AGC’s application was to be decided by a designated judge. In this case Norris J. of the Federal Court of Canada decided the application.

[14] The proceedings before Norris J. resulted in his providing decisions in three separate phases. Deciding the AGC’s application was a long and complex exercise. Ultimately, Norris J. granted orders confirming the prohibition against disclosure and allowing for the redactions pursuant to section 38.06(3) of the CEA.

[15] The stated impact of Norris J.’s. 38 orders on the fair trial rights of Mr. Ortis, resulted in this application for a stay of proceedings pursuant to section 38.14, and the order granted on October 13, 2022, dismissing counts 5 to 8.

Framework for the Reasons for Decision

[16] This decision will be divided into the following sections:

A. Overview of section 38. B. Overview of the prosecution’s case. C. Overview of the defence. D. A review of the section 38 decisions, orders, and analysis of Norris J. E. A review of section 38.14 including an analysis of the appropriate test to be used in determining an application and what the appropriate remedy should be in each case. F. An analysis of the impact of the section 38 confirmation orders on the accused’s right to a fair trial regarding counts 1 to 4, and 9 to 10 of the indictment. G. An analysis of the impact of the section 38 confirmation orders on the accused’s right to a fair trial regarding counts 5 to 8 of the indictment. H. My conclusion.

[17] The decision will include supplementary reasons that will be kept at the Federal Court’s secure facility by reason of the highly classified nature of some of the information.

A) Section 38 of the CEA

[18] Section 38 of the CEA provides a procedure respecting the use and protection of “sensitive” or “potentially injurious information” as it relates to the national security interests of Canada.

[19] In a criminal proceeding the participants have an obligation to notify the AGC of the potential use or disclosure of this type of information.

[20] The AGC in turn may decide to not authorize the disclosure of the information.

[21] If the AGC does not authorize the disclosure of the information, the issue may be taken before the Federal Court. The Federal Court determines whether disclosure should be provided or prohibited.

[22] In determining the order to be made pursuant to section 38.06, a designated judge engages in a three-step process as set out in Ribic v. Canada (Attorney General), 2003 FCA 246, [2005] 1 F.C.R. 33. When considering the information and what order, if any, should be made the court must:

a) determine the information’s relevance in the underlying proceeding. b) determine whether disclosure of the information would be injurious to international relations, national defence, or national security; and c) where the evidence is both relevant and injurious, determine whether the public interest in disclosure is outweighed by the public interest in protecting the information.

[23] First, the party seeking disclosure must establish relevance. Second, the onus shifts to the AGC to demonstrate injury. Third, the party seeking disclosure must demonstrate that the public interest favours disclosure. Consequently, information may be protected for national security reasons regardless of its importance to an accused person in making full answer and defence.

[24] If national security interests and the right to make full answer and defence become irreconcilable, as can happen, section 38.14 is potentially triggered and may be applied.

[25] Section 38.14(1) reads as follows:

Protection of right to a fair trial

38.14 (1) The person presiding at 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 complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence; (b) an order effecting a stay of the proceedings; and (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

[26] R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, is one of the leading decisions on section 38. In Ahmad, the Supreme Court recognized the importance of protecting an accused person’s right to a fair trial in circumstances where information had to be withheld for national security reasons. The court in that decision said, at para. 2, “where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised.”

[27] The Ahmad decision will be analysed in more detail when I deal with the applicable test and my findings under section 38.14.

B) Overview of the Prosecution’s Case

[28] Counsel for the Public Prosecution Service of Canada (PPSC) provided the court with a 50-page summary of the evidence they anticipated presenting at the trial against Mr. Ortis. The evidence is highly technical and detailed. The overview that follows is a simplified review of the gist of the allegations against the accused.

[29] The evidence that the prosecution intends to present differs according to the counts set out in the indictment, particularly as they relate to the SOIA counts.

[30] Counts 1 to 4 are charges contrary to section 14(1) of the SOIA. Count 1 reads: Cameron Jay Ortis, being a person permanently bound to secrecy, on or between 1 February 2015 and 31 May 2015, did, in the city of Ottawa, Ontario, intentionally and without authority, communicate special operational information to V.R., contrary to section 14(1) the SOIA. Counts 2, 3, and 4 allege the same offence but with different time frames and information recipients.

[31] Some of the evidence the prosecution intends to present in connection with the first four counts can be summarised as follows:

• Records outlining Mr. Ortis’s employment history as a civilian member of the RCMP from his position as the officer in charge of operations research within RCMP National Security to his appointment as the Director General of National Intelligence. These records, it is said, will disclose that as part of his duties he had access to RCMP information technology systems and data in a manner authorized for performance of his duties and to classified information, including Top Secret and GAMMA classified Signals Intelligence.
• Records supporting the proposition that Mr. Ortis, by virtue of his employment, was permanently bound to secrecy pursuant to section 8(1) of the SOIA. Further, as a matter of protocol he was required to accept and acknowledge that he was subject to the principles of authorized used and need to know whenever accessing Top Secret Signals Intelligence information.

[32] Some of the evidence the prosecution intends to present in connection with count 1 can be summarised as follows:

• Evidence that since 2013 the RCMP worked with Five Eyes law enforcement agencies, including the Federal Bureau of Investigation (FBI), to address Canadian companies providing encrypted communication devices to transnational organized crime clients, one of the companies being investigated had an individual named Vincent Ramos as its chief executive officer. Although the project and target wound down in 2016, the RCMP continued to provide technical assistance to the FBI. On March 3, 2018, the FBI arrested Ramos in Las Vegas, Nevada, on Racketeer Influenced and Corrupt Organizations Act (RICO) charges. The RCMP were present at the arrest because they were providing technical assistance. They were tasked with examining Ramos’s MacBook.
• This arrest and examination of Vincent Ramos’s MacBook led to a series of discoveries including a chain of emails sent to Ramos between February 5, 2015, to April 29, 2015, that were said to emanate from email accounts titled newvector@posteo.de and vaiablewinds@tutanota.de. These emails were later identified to belong to Mr. Ortis. The emails offered operational intelligence information.
• Examples of the subject emails include the sender stipulating the following: a) “You don’t know me. I have information that I am confident you will find very valuable” and that he could provide “Intel about your associates and individuals using their network internationally”. b) “I am in the business of acquiring hard to get information that individuals in unique high-risk businesses find valuable. I sell that information to them.” c) An email sent on March 21, 2015, the contents of which suggested that Vincent Ramos was being warned about an undercover operation. d) An April 29, 2015, email containing 10 attachments including advice that the email had embargoed copies of Canadian law enforcement intelligence that was targeting Ramos’s company. Later an email sent on May 7, 2015, requested a $20,000 fee for the unembargoed versions of the documents that had been emailed on April 29th and advised that the emails could include information about the complete embargoed documents that could help Ramos thwart law enforcement.
• The PPSC will also call evidence to support the propositions that Mr. Ortis was the author of these emails, that he accessed documents that were leaked to Vincent Ramos, and that he accessed the National Crime Databank querying six names including Vincent Ramos’s name.
• That an authorized search of Mr. Ortis’s residence yielded a USB flash drive that was found to contain an encrypted Tails (the Amnesic Incognito Live System) operating system. Parts of the flash drive were successfully decrypted which provided evidence that Mr. Ortis collected special operational information and disclosed it to Ramos. A folder entitled “The Project” contained documents listing the login credentials for email accounts including “variable winds” and “new vector”.
• A subfolder within the Project entitled “Bootstrap-1” contained copies of the embargoed documents that were sent to Vincent Ramos and a document containing a to-do list dated January 18, 2015, which contained plans to make first email contact.
• The USB Tails drive also contained other documents and emails disclosing Mr. Ortis’s methodology and the materials/information he seemed intent on providing or sharing with Vincent Ramos.

[33] Some of the evidence the prosecution intends to present in connection with counts 2-4 can be summarised as follows:

• Counts 2 to 4 are interrelated in that the subjects Muhammad Ashraf, Farzam Mehdizadeh, and Salim Henareh were all being investigated in connection with their possible involvement with international money laundering activities headed by Altaf Khanani.
• The “Project” folder contained two further subfolders: “Bootstrap-4” and “Roscoe”. Bootstrap-4 had a note disclosing plans to warn Altaf Khanani that he was the target of an investigation and to advise him that Canadian authorities were targeting Salim Henareh, Muhammad Ashraf, and Farzam Mehdizadeh.
• With respect to count 2: the USB Tails drive contained documents to support the proposition that Mr. Ortis sent special operational information to Salim Heraneh.
• Furthermore, the PPSC will present evidence that a package was sent to Salim Heraneh via United Parcel Service (UPS) that contained documents found in the Bootstrap-4 and the Roscoe folders of the Tails USB. The package also contained special operational information including Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) reports. FINTRAC is an agency mandated, in part, to facilitate the detection of money laundering schemes.
• With respect to count 3: the Bootstrap-4 folder contained evidence to support the proposition that Mr. Ortis was intent on providing special operational information to Muhammad Ashraf including an RCMP report which identified him as part of the Altaf Khanani network.
• Evidence will be presented that Mr. Ortis sent emails between April 23 and May 21, 2015, to Muhammad Ashraf. These emails were confirmed by Ashraf. The emails in question contained excerpts from the documents found in the Bootstrap-4 folder; they contained material that could be considered special operational information including the above-mentioned RCMP report.
• With respect to count 4: the allegation is an attempt to communicate special operational information to Farzam Mehdizadeh. Bootstrap-4 contained documents and notes that Mr. Ortis made which indicated he was going to advise Mehdizadeh that he was the target of a covert investigation. The Bootstrap-4 folder also contained drafts of emails that were going to be sent to Medizadeh’s son requesting his assistance to deliver documents to his father. A production order for Medizadeh’s son’s email account was obtained disclosing that he received the said email. No evidence was obtained to support the proposition that special operational information was ever received by Farzam Mehdizadeh.

[34] The contemplated evidence relating to counts 1 to 4 is much more detailed than the above overview. In general terms, the prosecution’s case consists of emails, notes, and documents that can be said to contain special operational information, that based upon when, where, and how they were found allow for a strong circumstantial evidence case for Mr. Ortis to answer.

[35] Counts 5 to 8 are charges contrary to section 22(1) (b) of the SOIA. Count 5 reads as follows: Cameron Jay Ortis, on or between 9 September, 2018 and 12 September, 2019 in the city of Ottawa, Ontario, did for the purpose of committing an offence under section 16 of the SOIA, gain access to information specifically towards or in preparation of the commission of the offence, contrary to section 22 (1)(b) and (e) of the SOIA. Counts 6,7, and 8 reference the same time frame and preparatory act offence but reference a different act alleged to have been committed by Mr. Ortis. Count 6 alleges that he “did obtain information”. Count 7 alleges that he “did retain information”. Count 8, which is contrary to section 22(1) (e), alleges that that he did “possess a device, apparatus or software useful for concealing the content of information or for surreptitiously communicating, obtaining or retaining information”.

[36] Some of the evidence the prosecution intended on presenting in connection with counts 5 to 8 can be summarized as follows:

• The prosecution would lead evidence that Mr. Ortis was indoctrinated, by virtue of his position at the RCMP, and thus had access to the Canadian Top Secret Network (CTSN). CTSN is a highly classified network used for information sharing within the Canadian law enforcement intelligence community. It contains documents that include Secret and Top Secret Signals Intelligence and GAMMA classifications.
• The CTSN is maintained by the Communications Security Establishment (CSE) and access to it is governed by signals intelligence (SIGINT) security standards. SIGINT is technical information or intelligence composed of communications intelligence, electronic intelligence and foreign instrumentation signals intelligence. One of the conditions of partnership among CSC and Canada’s SIGINT partners, namely the Five Eyes partners, is a mutual commitment to protect each other’s information.
• Access to the CTSN is obtained via secure standalone computer terminals located within highly restricted locations.
• Individuals who have security clearance to access the highly classified material are subject to several specific rules and regulations regarding the protection of SIGINT material. For example, the material can only be shared with indoctrinated individuals in secure settings; documents from the CTSN computer cannot be stored on a USB; documents can only be printed if the printed information concerns the Top Secret nature of the document; and the name of the CTSN, the user’s name, the date, and the time must be printed on the document.
• GAMMA is a sub-control system with further limits to access which protects especially sensitive reports and related material. Access to GAMMA information requires further indoctrination and special handling standards apply.
• Pursuant to general warrants, covert searches were conducted at Mr. Ortis’s residence between August 26, 2019, and September 11, 2019. A laptop was found with a user folder entitled “Batman.” It contained 400 classified documents respecting national security that had been accessed and printed from a CTSN computer terminal. The documents were stored in subfolders entitled “Processed” and “Un-processed” stored by month. The “Processed” classified documents had been stripped of their identifying marks and converted to PDF format using a computer software.
• On September 12, 2019, a search warrant was executed, and all devices, documents and additional items were seized. To-do lists, handwritten notes, and business cards for certain foreign officials were collected. These could be interpreted as circumstantial evidence of Mr. Ortis preparing to share the documents/classified material with a particular foreign entity.
• Mr. Ortis’s access badge and CTSN credentials were used to enter the CTSN terminal room to print highly classified documents from October 2018 to February 2019. The entries mostly occurred on weekends.

[37] The evidence in support of the actus reus of the section 22(1)(b) and (e) offences was abundant and arguably overwhelming.

[38] Mr. Ortis also provided a statement on September 12, 2019, acknowledging certain key facts that buttress the evidence relating to counts 5 to 8.

[39] The prosecution case in support of count 9 (the unauthorized use of computer systems) and count 10 (the breach of trust), consists of all the evidence surrounding Mr. Ortis’s alleged illegal activities while in a position of trust and how he used information gained from his place of employment and the computers therein to conduct those activities.

C) Overview of the Defence

[40] The applicant disclosed, in summary form, the anticipated defence of Mr. Ortis as part of the representations made under section 38.14. The summary in this publishable decision will be broad and will omit certain critical information because that specific information is of a highly classified nature and cannot be disclosed or published. Where required that information will be contained in the supplementary reasons and can only be reviewed at a secure facility.

[41] Mr. Ortis will present an affirmative defence, which has largely been disclosed in a 22-page summary that was provided to this court and to Norris J. during the Federal Court section 38 hearings.

[42] The essence of his defence goes to the mens rea of each count and each allegation. In general terms, the argument will be that what Mr. Ortis intended to do was not criminal. What he intended to do was part of his work.

[43] It is anticipated that he will testify and that some of the highlights of his testimony will include the following:

• The “project” was not what the Crown says it was. “The project” really referred to a series of overlapping program development efforts that Mr. Ortis was running on his own (outside of his workplace) as a means of driving RCMP intelligence operations. He was doing this as a means of avoiding all the red tape that existed at the institution where he was employed.
• The project started as early as 2012 and continued up to the time of his arrest. The project encompassed at various times the following: international money laundering, cyber crimes, transnational organized crime, threat from certain foreign agencies, and threats to the Canadian North.
• He will testify as to the mandate of Operations Research (OR) and his role as the director of the unit.
• That in 2013 OR expanded its mandate to include Transnational Organized Crime (TOC). He will say that he began working outside of the office and outside of office hours on this mandate and that he referred to the work as being the “project”.
• The first case files developed under the project would become known as OR Skyfall/OR Dominion.
• With respect to counts 1-4 he will testify that the emails and communications with the various individuals were part of an elaborate self-created undercover operation.
• That in 2013/2014 the Five Eyes community expressed concern about the possible use by terrorist groups of secure encryption providers and international money launderers based in Canada. They were believed to be operated by an individual known as Khawani, and Safwan Polani. The main target with respect to the providing of and use of encrypted phones was Vincent Ramos.
• Mr. Ortis will say that he did an initial workup on potential targets, including compiling intelligence charts and briefing binders for his immediate superior’s meetings with Five Eyes partners. OR continued to work on these targets, however, Mr. Ortis perceived that the investigation and operation were stalled.
• Other targets of the RCMP investigations, apart from Vincent Ramos, were Muhammad Ashraf, Farzam Mehdizadeh, and Salim Henareh.
• As a director of OR he designed and executed an online undercover operation targeting these four individuals. The operation was entitled “the Nudge”.
• As part of the operation, emails were drafted and sent to each target using previously created online accounts. He will say that all the documents found on the Tails USB regarding counts 1 to 4 came from within the RCMP, and more specifically OR, and were created at the RCMP headquarters and used for the purposes of the “Nudge”.
• The information used was all low-level intelligence, poor quality and nonactionable. Some of it was inaccurate and in places misclassified.
• The defence will argue that Mr. Ortis had the authority to communicate the limited information he did in the context of this online undercover operation.
• With respect to counts 5 to 8, the thrust of the defence would be that the purpose of printing and sorting the intelligence on the Batman computer was to eventually make a pitch to senior RCMP executives on how to best respond to a certain growing problem or threat from a foreign entity.
• The concept was that key pieces of intelligence would go into a full reference binder, briefing binders, along with a PowerPoint presentation, briefing notes and strategic backgrounder.
• He never intended to communicate this information to a terrorist organization or a foreign entity.

D) Section 38 and the Decisions of Justice Norris

[44] Norris J. was tasked with considering an application brought by the AGC under section 38.04 of the CEA. He was responsible for determining whether orders should confirm the prohibition of disclosure of a great deal of redacted information that formed part of the Crown disclosure and the prosecution of Mr. Ortis. The requested prohibition orders included information that was contained in a summary of the anticipated defence evidence of Mr. Ortis.

[45] Norris J. provided his decision in three phases. The first two phases consisted of two main published decisions. The third phase consisted of a nonpublished decision containing classified information. The third phase also consisted of certain annexes to the published decisions (expanding on his reasons) that were non-publishable, classified, and remain at the Federal Court’s secure facility.

[46] The first phase dealt with information relevant to counts 5 to 8; the second phase primarily concerned information relevant to counts 1 to 4; and the third phase dealt with further information relevant to counts 5 to 8. Counts 9 and 10 overlapped and were not dealt with separately.

[47] The work performed by Norris J. was excellent. The decisions and annexes include a thorough examination of the information in question, a detailed examination of why the prohibition orders were made, including how the prohibitions could impact on Mr. Ortis’s defence. Annex B of phase 3 is a classified discussion specifically for my edification of his view of the possible impact that the prohibition orders relevant to counts 5 to 8 would have on Mr. Ortis’s fair trial rights.

[48] The ground so richly covered by Norris J. forms part of my reasons, and all his work should be read in conjunction with this decision. This is because the third prong of the Ribic test requires a careful consideration of the value of the classified information to the accused’s defence. I must undertake a similar analysis under s. 38:14.

[49] On February 9, 2022, Norris J. released his first ruling (phase 1). The highlights from that ruling can be summarized as follows:

• The first ruling dealt with information/disclosure that was primarily relevant to counts 5 to 8 of the indictment.

• The contents of the documents seized from electronic devices at Mr. Ortis’s home and relevant to these counts had been completely redacted. Only the security markings on the documents and the identity of the agency that produced the document were revealed in the Crown disclosure.

• One of the unusual features in the application was that Mr. Ortis, by virtue of his employment history and prior possession of the documents, would have specific knowledge of their contents.

• The prohibition claims by the AGC, if upheld, would preclude Mr. Ortis from relying on any of this information when testifying or defending himself at trial.

• The defence summary relevant to counts 5 to 8 was disclosed to the Crown.

• The AGC was also provided with the defence summary, and the AGC filed a version thereof with see-through redactions indicating the section 38 prohibition claims being advanced.

• The elements of the offences under section 22(1) of the SOIA were set out particularly as they relate to the allegations against Mr. Ortis in this case. At page 24 of the ruling is the following analysis:

  The acteus 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. 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.

  Section 22 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” it criminalizes conduct that precedes the commission of the offences to which it refers. There can be no doubt that, in the case of such an offence, the intention of the accused must be determined subjectively.

• The analysis regarding counts 5 to 8 concluded that the central issue at trial will be what Mr. Ortis intended to do with the safeguarded information. Evidence relating to this will have a direct bearing on whether the Crown is able to prove these offences beyond a reasonable doubt.

• The ruling provides a comprehensive review of the Ribic test. With respect to the third step, the designated judge indicated that he “must determine whether the public interest in disclosure of the information outweighs in importance the public interest in nondisclosure.”

• In the context of the third step Norris J. explained that an assessment of the importance of the information to an accused and to his or her defence is required. If the information relates to the element of an offence, the designated judge should consider the potential value of the information for raising a reasonable doubt about that element. He further stipulated that “weighing on the other side of the scale is another public interest-avoiding the injury that would be caused to international relations, national defence or national security by the disclosure of the information in question.”

• With respect to the third step in Ribic, the ruling canvassed the test to be applied to the balancing of the accused’s and public interests. The PPSC argued that the innocence at stake test should be applied when considering whether the relevant information should be disclosed. Norris J. rejected this approach and preferred a case-by-case analysis. He reasoned that “injurious information can assist an accused in other ways besides going directly to core issues relating to the guilt of the accused. It could for example apart from going to the innocence of the accused, nonetheless, be relevant or an integral part of his right to make full answer and defence”. He concluded that innocence at stake should not be considered a necessary condition for the disclosure of injurious information under subsection 38.06(2).

• Norris J. concluded that for reasons contained in a classified annex that the public interest in nondisclosure outweighed the public interest in disclosure of the information at issue at this stage. He further indicated that this conclusion was reached despite his view that the information was of immense importance to Mr. Ortis’s ability to make full answer and defence to counts 5 to 8. Norris J. further concluded that the evidence was highly probative of Mr. Ortis’s mens rea and can raise a reasonable doubt about his guilt on these counts. Despite this, the injury to national security that could be caused by disclosure of the information was so grave that the public interest in nondisclosure outweighed the public interest in disclosure.

[50] The supplementary classified reasons will reference information contained in Norris J’s Phase 3 Annex B, the reasons will be located at the Federal Court secure facility.

[51] With respect to the section 38.14 analysis, what I took from Norris J.’s phase 3 ruling, particularly after considering his Annex B, was that he was of the very strong view that the prohibition orders, particularly in connection with certain specified documents, act as a serious impediment to Mr. Ortis’s ability to testify as to what he intended to do with the documents and material that were located at his residence and on electronic devices. In his words “they were of immense importance to his defence.”

[52] On April 8, 2022, Norris J. released his second ruling (phase 2). The highlights from that ruling can be summarized as follows:

• The ruling dealt with disclosure and information that was relevant to counts 1 to 4 in the indictment.
• The ruling described the elements of the offence under subsection 14(1) of the SOIA, namely that it is an offence for a person permanently bound to secrecy to “intentionally and without authority” communicate or confirm special operational information. The expressions “person permanently bound to secrecy” and “special operational information” are defined in subsection 8(1) of the SOIA.
• The charges against Mr. Ortis were then summarized in terms of each count and the allegation supporting each count.
• The anticipated defence was explained, namely that the sharing of information alleged in each count was part of an undercover operation within the scope of his authority or that he honestly but mistakenly believed was within the scope of his authority.
• The third step of the Ribic test and its application to the disclosure on these counts was summarized to the extent possible in unclassified reasons. Norris J. found that the prohibition/disclosure orders in the second ruling were more varied than in the first ruling because, while there were prohibition orders, there were also orders that certain information could be disclosed despite the AGC taking the position that it should not be. The public interest in disclosure of certain information outweighed the public interest in nondisclosure.
• In terms of the impact of the nondisclosure orders on the ability to make full answer and defence; the defence position argued before Norris J. was that Mr. Ortis needed the redacted information to show to the jury that what he shared with the named individuals was “low value” intelligence. Further, he needed the redacted information to be able to counter the potential prejudicial effect of the Crown introducing heavily redacted documents in evidence at his trial.
• He would use the redacted information to show to the jury examples of “sensitive information” that he had in his possession at the time and did not share with the individuals in counts 1 to 4. He would do this to support the proposition that he was sharing only low-grade intelligence, which he argues buttresses the notion that he was acting in an undercover capacity.
• Defence counsel provided an example relating to count 3. Counsel submitted that Mr. Ortis needed to show the jury the redacted excerpts in his letter to Mr. Ashraf and the reports from which the information was taken to demonstrate that he selected only low-grade intelligence.
• Norris J. rejected the “low value of the information shared” argument as a means of ordering further disclosure. First, he found that the disclosure of the information requested would be highly injurious to national security. The information must be very important to the defence to warrant disclosure. Second, he found that the so-called value of the information is irrelevant to whether he shared special operational information. Third, regarding count 3, he found that having access to the excerpts would not rebut the fact that the information shared was classified. Fourth, he found that the redacted information is incapable of establishing a fact crucial to Mr. Ortis’s defence with respect to the question of whether he shared operational information without authority.
• The prejudicial effect argument was rejected in terms of justifying further disclosure because, with respect to counts 1 to 4, the Crown was not intending to put the redacted documents into evidence at this time. Should that position change during the trial, then the issue should be brought before the trial judge. The trial judge’s role as gatekeeper would be to determine the prejudicial effect of any such evidence going before a jury juxtaposed to its probative value.

[53] In Norris J.’s phase 2 ruling, I understand his view to be that the ordered nondisclosure information was of only marginal value to the anticipated defence of Mr. Ortis regarding counts 1 to 4.

[54] The supplementary classified reasons will reference information contained in Norris J.’s classified annexes respecting his analysis of counts 1 to 4 in terms of how it impacted my section 38.14 decision.

E) The Test Under Subsection 38.14(1) and (2) of the CEA

[55] In Ahmad, the Supreme Court emphasized the importance of maintaining an accused person’s right to a fair trial in circumstances where information must be withheld for national security purposes. The strength of the language used by the court in making this point informs the approach that trial courts should take when considering a section 38.14 application. The Court wrote at paras. 2 and 7:

We acknowledge at the outset that in some situations, the prosecution’s refusal to disclose relevant (if sensitive or potentially injurious) information in the course of a criminal trial may on the facts of a particular case prejudice the constitutional right of every accused to “a fair and public hearing” and the separately guaranteed right “to be tried within a reasonable time” (Charter, ss. 11(d) and (b), respectively). Where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised. However, s. 38, as we interpret it, preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where he or she deems it necessary, to enter a stay of proceedings

In criminal cases, the court’s vigilance to ensure fairness is all the more essential. Nevertheless, as we interpret s. 38, the net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free. While we stress this critical protection of the accused’s fair trial rights, we also note that, notwithstanding serious criticisms of the operation of these provisions, they permit considerable flexibility as to how to reconcile the accused’s rights and the state’s need to prevent disclosure.

[56] The provisions of section 38 and the Ahmad decision do not set out a specific test to determine when a nondisclosure order impacts 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.

[57] The parties have each urged the court to adopt and apply a different test.

Applicant’s Proposed Test

[58] The applicant argued that the impact of nondisclosure on trial fairness should be measured based on the “usefulness” of the nondisclosed evidence to the defence.

[59] The reasoning advanced for this proposition can be summarized as follows:

• The right to a fair trial encompasses an accused’s ability to make full answer and defence. That right includes the right to disclosure of relevant materials in the Crown’s possession and the right to testify and call evidence in support of any defences.
• In this case a significant majority of the nondisclosed information consists of documents seized from electronic devices belonging to Mr. Ortis, for example, the Tails USB key and the Batman computer. All the material seized is presumptively relevant.
• The accused is prevented from testifying about areas that are relevant to his defence because of the section 38 nondisclosure orders.
• R. v. Ribic, 2008 ONCA 790, 238 C.C.C. (3d) 225, and R. v. Huang, 2021 ONSC 2654, were cited as authority for the proposition that the nondisclosed information or withheld evidence should be measured or considered from the perspective of its usefulness.
• According to the appellate caselaw, a trial judge should undertake the type of exercise when considering a section 38.14 application as the court would undertake to assess the impact of nondisclosure on the accused’s right to a fair trial if it is discovered after trial that relevant evidence was withheld by the Crown. The court must consider the reasonably possible uses of the nondisclosed evidence or the reasonably possible avenues of investigation that are closed because of the nondisclosure.
• In assessing the effect or impact of the withheld evidence on the accused’s ability to testify, the court must determine whether the prohibited testimony would be useful in the sense that it is more than of trifling probative value.
• The usefulness analysis should include the court’s consideration of how the withheld information could impact the accused’s ability to testify about specific details to bolster a defence and enhance credibility. This is especially so before a jury.
• The merits of the defence are not a consideration in the section 38.14 application. The air of reality test only applies to affirmative defences advanced by an accused person. The air of reality test does not apply to situations where an accused is seeking to call evidence to raise a reasonable doubt about specific elements of the offence.

[60] As I understand it, the proposed test of “usefulness” essentially asks the court to examine the withheld information from the perspective of how it might be useful to the defence in broad terms and how the prohibition against using that evidence would impact on the accused’s ability to make full answer and defence. The usefulness test’s application in this specific case would include an analysis of how the withheld evidence could impact on the accused’s ability to testify in defence of the charges, such as the accused’s ability to provide specific details from the withheld evidence to assist in bolstering his testimony and credibility.

The Crown’s Position on the Appropriate Test

[61] The Crown submitted that a stay of proceedings (or the dismissal of a count) should not be ordered unless the withheld evidence is critical or essential to a fair trial.

[62] The arguments supporting this proposition can be summarized as follows:

• In R. v. Kevork (1986), 27 C.C.C. (3d) 523 (Ont. H.C.), Smith J. rejected the notion that mere withholding of information would constitute a violation of the right to make full answer and defence. He further found that a stay of proceedings should not be ordered unless the evidence withheld is critical or essential to a fair trial.
• The Ahmad decision held, at paras. 2 and 30, that “section 38, as we interpret it, preserves the full authority and independence of the judge presiding over the criminal court to do justice between the parties” and that “[l]ack of disclosure in this context cannot necessarily be equated with the denial of the right to make full answer and defence resulting in an unfair trial.”
• Ultimately, the accused is entitled to a fundamentally fair trial not a perfect trial. The test is not whether the classified information could be useful to the defence, but whether it is critical or essential to his trial being fundamentally fair.

[63] Before the court orders the extreme remedy of a stay of proceedings or the dismissal of a count, a finding must be made that the withheld evidence is essential or critical to allowing the accused to have a fair trial.

The Appropriate Test Under Section 38.14

[64] The language of section 38.14 confers a wide range of powers on the trial judge to “protect the right of the accused to a fair trial” provided the trial judge strictly complies with the prohibition/nondisclosure orders made by the Federal Court.

[65] In Ahmad the Supreme Court said the following regarding remedies under section 38.14, at para. 35:

This leads us to the further observation that the stay of proceedings remedy in s. 38.14 is a statutory remedy to be considered and applied in its own context. It should not be burdened with the non-statutory “clearest of cases” test for a stay outlined in R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. O’Connor, [1995] 4 S.C.R. 411; and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. The criminal court judge may be placed in a position of trying to determine an appropriate remedy where lack of disclosure has made it impossible to determine whether proceeding with a trial in its absence would truly violate “the community’s sense of fair play and decency” (Jewitt, at p. 135). Nevertheless, the legislative compromise made in s. 38 will require a stay in such circumstances if the trial judge is simply unable to conclude affirmatively that the right to a fair trial, including the right of the accused to a full and fair defence, has not been compromised.

[66] The Supreme Court seemingly provides for a lower threshold for the imposition of a stay under section 38.14 than the ‘clearest of cases’ test. The ordering of a stay or the dismissal of a count is nonetheless an extreme remedy because it eliminates a trial on the merits. Therefore, it seems to me that some type of a measurement or quantification of the impact on the accused’s fair trial rights must be arrived at before this drastic remedy is imposed. In other words, the impact would have to be severe enough to warrant the remedy.

[67] In my view, the analysis should centre around the following question: How will the nondisclosure order/withheld evidence impact the accused’s right to have a fair trial? The analysis will necessarily be case-specific. An understanding of the intended defence will usually be necessary. The ability to make full answer and defence is one of the cornerstones of a fair trial. If it is meaningfully compromised, then in many instances so is the right to a fair trial.

What is the Right to Make Full Answer and Defence?

[68] The Supreme Court jurisprudence as to the meaning of full answer and defence and a fair trial is informative.

[69] In R. v. Rose, [1998] 3 S.C.R. 262, the Supreme Court wrote the following, at para. 98:

The right to make full answer and defence is protected under s. 7 of the Charter. It is one of the principles of fundamental justice. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336, Sopinka J., writing for the Court, described this right as "one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted". The right to make full answer and defence manifests itself in several more specific rights and principles, such as the right to full and timely disclosure, the right to know the case to be met before opening one’s defence, the principles governing the re‑opening of the Crown’s case, as well as various rights of cross‑examination, among others. The right is integrally linked to other principles of fundamental justice, such as the presumption of innocence, the right to a fair trial, and the principle against self‑incrimination.

[70] In R. v. Mills, [1999] 3 S.C.R. 668, at para. 76, the Court set out three principles relating to the right to make full answer and defence:

Several principles regarding the right to make full answer and defence emerge from the preceding discussion. First, the right to make full answer and defence is crucial to ensuring that the innocent are not convicted. To that end, courts must consider the danger of placing the accused in a Catch-22 situation as a condition of making full answer and defence, and will even override competing considerations in order to protect the right to make full answer and defence in certain circumstances, such as the “innocence at stake” exception to informer privilege. Second, the accused’s right must be defined in a context that includes other principles of fundamental justice and Charter provisions. Third, full answer and defence does not include the right to evidence that would distort the search for truth inherent in the trial process.

What is a Fair Trial?

[71] In R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, Rothstein J., offered the following instruction concerning trial fairness, at para. 22:

While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added]

Fundamental Principles and Their Application

[72] When discussing the concepts of a fair criminal trial or making full answer and defence, the presumption of innocence and the burden on the Crown to prove a charge beyond a reasonable doubt should be overarching considerations.

[73] In the context of the withholding of evidence, it seems to me that a fair trial and the right to full answer and defence include the ability to meaningfully present evidence that can raise a reasonable doubt respecting any essential element of an offence charged.

[74] The crux of the analysis is whether the right is breached to the extent that the only remedy is a stay of proceedings or dismissal of a count.

[75] Counsel for the applicant provided a summary of their anticipated defence. The exercise here was to measure the effect the nondisclosed information could have on the accused’s anticipated testimony.

[76] In the case of Mr. Ortis, I would frame the test by posing two questions: 1) Does the nondisclosure order impact the accused’s ability to raise a reasonable doubt as to an essential element of the offence? 2) If it does, is the impact sufficiently meaningful to warrant the extreme remedy of a stay of proceedings or dismissal of the count?

F) Impact Analysis of Counts 1 to 4 and 9 to 10

[77] The analysis in this case is in the context of a jury trial. My reasoning in this publishable decision will be broad because what the defence says they want to specifically rely upon cannot be included (the supplementary reasons will allow for more specificity).

[78] Counts 1 to 4 in the indictment charge offences under subsection 14(1) of the SOIA.

[79] Subsection 14(1) of the SOIA provides that it is an offence for a person permanently bound to secrecy to “intentionally and without authority” communicate or confirm special operational information. Subsection 14(2) provides that anyone who commits this offence is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years.

[80] The elements of the offence for the purposes of a jury instruction could be formatted as follows:

To sustain a conviction the Crown must prove the following beyond a reasonable doubt:

a) That the accused is a person permanently bound to secrecy. b) That the accused intentionally and without authority communicated information. c) That the accused knew he was acting without authority. d) That the information communicated was special operational information.

[81] The defence as disclosed in their summary will be an affirmative one. That Mr. Ortis was permanently bound to secrecy, or that he communicated special operational information do not appear to be issues that are going to be disputed.

[82] The essence of the defence will require Mr. Ortis to testify that during the relevant times in question, he was engaged in an undercover operation, that he was acting within the scope of his authority, and consequently his actions were not unlawful, and that the information was not communicated “without authority”.

[83] Alternatively, if he was wrong about the scope of his authority, he honestly but mistakenly believed he was acting within the scope of his authority at the time.

[84] The nondisclosure order confirms a great deal of redacted information. The thrust of the redacted information contains sensitive information that was in Mr. Ortis’s possession.

[85] The usefulness or need to reference the prohibited disclosure claimed by Mr. Ortis for his defence can be summarized as follows:

• It is required to show the jury the precise nature of the information to demonstrate that he only shared innocuous or low value intelligence with the named individuals. This buttresses his argument that he was engaged in a legitimate undercover operation.
• Furthermore, the fact that he had access to more sensitive or valuable information that was not disclosed rebuts the suggestion that he was motivated by financial gain or acting outside the law. He requires access to this redacted classified information to be able to show the jury examples of the type of sensitive information that he did not share or attempt to share with the individuals listed in counts 1 to 4.
• The need to provide detail about the undercover operation and use classified documents/material to corroborate his testimony goes to the heart of his defence and would serve to bolster his credibility and reliability.
• It is required to properly advance his defence, to be able to explain the five W’s: the who, what, when, where and why of the undercover operation.
• By not being able to reference certain interrelated documents on the Tails USB Mr. Ortis will be incapable of contextualizing certain documents that the Crown will rely upon at trial and put before the jury.

[86] Does the nondisclosure order impact the accused’s ability to raise a reasonable doubt about an essential element of the offence? In this case the essential element is that he was acting without authority and knew he was acting without authority. In my view this essential element would be somewhat impacted by not having access to the classified information while testifying in his defence.

[87] However, it would not impact that ability to the extent that the extreme remedy of a dismissal or stay of the counts is warranted in the circumstances of this case.

[88] I arrive at that conclusion based upon the following analysis:

• The thrust of Mr. Ortis’s defence, the explanation that it was an undercover operation and that he was acting lawfully and within the scope of his authority, or that he honestly but mistakenly believed he was, can still be presented before the jury through his testimony. He is not prevented from doing so by Norris J.’s prohibition orders.
• The stated requirement of being able to reference prohibited/classified documents as a means of comparing the relative value of what could have been shared and what was shared, does not to any significant degree impact Mr. Ortis’s ability to testify that this was the case.
• In essence, the nature of the redacted information shared or not shared does not go to the issue of whether he had authority or believed he had authority to communicate special operational information.
• Nothing prevents Mr. Ortis from testifying as to why he was doing what he was doing or to explain what he intended at the time. The defence of an undercover operation being within the scope of his authority or the honest but mistaken belief that it was is not corroborated or enhanced by his pointing to specific classified information. It would not assist the jury in determining what Mr. Ortis intended when he communicated the special operational information.
• The approved/suggested summaries set out in annex c indicating what Mr. Ortis can testify to or say sufficiently reduce the impact of the prohibition orders to allow him to present his stated defence.
• Finally, as the trial proceeds, any prejudicial effect including the impact the prohibition/nondisclosure orders have on Mr. Ortis’s ability to testify as to his intentions may be reduced by appropriate mid-trial jury instructions should the need arise. For example, and subject to the input of counsel, the accused’s inability to reference specific information may have to be explained.

[89] The supplementary reasons will reference specific examples of the classified material at issue.

[90] With respect to counts 9 and 10, the issues are the same. The question of Mr. Ortis’s authority or belief in his authority to do what he did would be significant considerations in determining whether the Crown has proven those counts beyond a reasonable doubt. The prohibition/nondisclosure orders do not impact Mr. Ortis’s ability to respond to those allegations to the extent that his right to a fair trial is meaningfully compromised in the circumstances of this case.

[91] I would remark that the analysis here is by necessity anticipatory. A criminal jury trial has several moving parts. This determination is based upon what is expected to take place during the trial. Whether the landscape changes during the trial is a consideration.

G) Impact Analysis of Counts 5 to 8

[92] Counts 5 to 8 in the indictment charge offences contrary to subsections 22(1) (b) and (e) of the SOIA. The allegations are that Mr. Ortis engaged in conduct that constitutes preparatory acts in relation to the commission of an offence under section 16.

[93] The relevant parts of section 22 of the SOIA provide:

Preparatory Acts

22 (1) Every person commits an offence who, for the purpose of committing an offence under subsection 16(1) or (2), 17(1), 19(1) or 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including

(b) obtaining, retaining or gaining access to any information; (e) possessing any device, apparatus or software useful for concealing the content of information or for surreptitiously communicating, obtaining or retaining information.

Punishment

(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.

[94] The PPSC’s summary of the case indicates that subsection 16(2) of the SOIA was the offence for which the preparatory acts were allegedly committed. It provides:

Communicating safeguarded information

16 (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

(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 (b) harm to Canadian interests results.

[95] I agree with and adopt Norris J.’s analysis of the essential elements of section 22 of the SOIA as set out at paragraphs 50 to 55 of his reasons dated February 9, 2022. I agree that the intention of the accused must be determined subjectively. He must be shown to engage in the prohibited conduct with the specific intent of preparing to commit one of the listed offences. In this case communicating the safeguarded information to a foreign entity.

[96] In the context of instructions to a jury the essential elements could be formatted as follows:

To sustain a conviction the Crown must prove the following elements beyond a reasonable doubt:

a) In the case of Mr. Ortis each of the four counts alleges a specific preparatory act. The specified act must be proven beyond a reasonable doubt. That he (obtained) or (retained) or (gained) access to information. Or possessed any device, apparatus, or software useful for concealing the content of information and/or for surreptitiously communicating, obtaining, or retaining information. b) That the accused did so for the purpose of committing an offence, in this case intentionally and without lawful authority communicating safeguarded information to a terrorist organization or foreign entity.

[97] The intention to communicate the safeguarded information to a terrorist organization or foreign entity is an element that must be proven beyond a reasonable doubt.

[98] The defence summary provided on behalf of Mr. Ortis disclosed an affirmative defence that goes directly to the issue of what he intended to do with the information. That the acts were committed does not appear to be disputed. At trial, he would testify that he never intended to communicate the information to a terrorist organization or a foreign entity.

[99] At trial, Mr, Ortis would testify that the gathering of the information/the preparatory acts were for another purpose. Mr. Ortis gathered this intelligence to eventually make a comprehensive presentation to senior RCMP members, concerning how to best respond to the growing threat from a specific foreign entity. He would testify as to the details of what he was doing and why.

[100] The impact of the prohibition/nondisclosure order on Mr. Ortis’s ability to make full answer and defence on these counts has been proven to be very significant. Highly compelling evidence cannot be disclosed, cannot be used by the defence, and can raise a reasonable doubt as to what Mr. Ortis intended to do with the safeguarded information.

[101] The classified information prohibited from disclosure relates to a specific foreign entity. It is detailed and unequivocal. When examined together with the factual allegations being put forward by the Crown in support of these counts, and the proposed defence on the specific issue of intention the value of the information is powerful and obvious.

[102] The PPSC has proposed an alternative remedy. The remedy being a brief general admission meant to address the issue. The suggested remedy does not alleviate the problem. It does not improve Mr. Ortis’s ability to make full answer and defence. The details of the classified information prohibited from disclosure matter because they can support Mr. Ortis’s testimony and raise a reasonable doubt on the mens rea element of these offences.

[103] The supplementary classified reasons will refer to the information at issue and will contain further analysis of its utility juxtaposed to the proposed admission as suggested by the prosecution.

[104] Ultimately, the impact analysis concerning counts 5 to 8 and my responses to the two questions posed would be as follows: the nondisclosure order impacts Mr. Ortis’s ability to raise a reasonable doubt as to an essential element of the offence. The impact is sufficiently meaningful to warrant a dismissal of the counts.

[105] The fact is that depriving Mr. Ortis of the use of this information would deprive him of the right to make full answer and defence and a fair trial. This is a case where the national security interests requiring nondisclosure and the right to make full answer and defence are irreconcilable.

Conclusion

[106] This was a difficult ruling, to dismiss 4 counts on an indictment without a trial on the merits is not something that was taken lightly. I could find no other option.

[107] These reasons must be read in conjunction with the supplementary classified reasons, as well as the section 38 decisions of Norris J., both classified and unclassified. My decision here is a result of having considered all the information presented and read at the Federal Courts secure facility.

Maranger J. Released: May 24, 2023