R. v. Ortis, 2023 ONSC 6829

Court File No. CR-19-00020044

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

V.

CAMERON ORTIS

RULING

BEFORE THE HONOURABLE JUSTICE R. MARANGER

On September 26, 2023, at OTTAWA, Ontario

APPEARANCES:

J. Kliewer Counsel for the Federal Crown

J. MacFarlane Counsel for the Federal Crown

M. Ertel

J. Doody Counsel for the Accused, Cameron Otis

(i)

Table of Contents

ONTARIO

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

RULING...................................................Page 1

LEGEND

[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) Indicates preceding word has been spelled phonetically.

[indiscernible] Indicates preceding word/phrase was inaudible or impossible to understand.

TUESDAY, SEPTEMBER 26, 2023

RULING

MARANJER, J (Orally):

1. This was a Crown application for an order excluding the public from certain portions of the trial of Cameron J. Ortis.

2. The relevant factual background to the application can be summarized as follows:

I. Cameron Ortis stands charged with offences under the Security of Information Act and the Criminal Code. He is scheduled to go to trial on October 3, 2023, before a judge and jury.

II. Mr. Otis was a civilian member of the RCMP and held several high-ranking positions, including positions where he regularly dealt with highly classified information available to the RCMP.

III. Mr. Ortis and several of his colleagues with similar access to highly classified information are expected to give evidence at his trial.

IV. Notice was given pursuant to s. 38.01 of the Canada Evidence Act that aspects of his anticipated defence testimony would disclose sensitive and classified information that was potentially injurious to national security. The Crown also gave notice that statements given by some of their witnesses would disclose similar sensitive information.

V. This resulted in lengthy and complex s. 38 proceedings before Justice Norris of the Federal Court of Justice. They took place in the fall of 2021 and winter of 2022. The s. 38 proceedings were held in-camera.

VI. Justice Norris ultimately made a series of orders pursuant to s. 38.063 of the Canada Evidence Act, confirming the prohibition on disclosure of certain information set out in the accused’s summary of defence. The orders further prohibited certain Crown witnesses from disclosing sensitive information during their testimony.

VII. In certain instances, the court ordered substituted wording of statements in the accused’s defence summary that would avoid injury to national security or international relations.

3. In support of this application, the Crown relies on s. 486(1) one of the Criminal Code of Canada which provides as follows:

“Any proceedings against an accused shall be held in open court, but the presiding judge or justice may on application of the prosecutor or witness, or on his or her own motion, order the exclusion of all or any members of the public from the courtroom for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public if the judge or justice is of the opinion that such order is in the interest of public morals, the maintenance of order or the proper administration of justice, or as necessary to prevent injury to international relations, or national defence, or national security.”

4. The relevant factors in determining whether the order is in the interest of the proper administration of justice in this case are:

• whether effective alternatives to the making of the proposed order are available in the circumstances;

• the salutary and deleterious effects of the proposed order; and

• any other factor that the judge or justice considers relevant.

5. The proposed order here is unprecedented. It would have the public, including the media, excluded from the court during the viva voce testimony of Dan Morris, Gregory Ohanian, Walter Mendonca, and the accused Cameron Otis. Their testimony would then be transcribed and if necessary, redacted or vetted in the event that anything that was said would violate the s. 38.06 orders or raise s. 38 national security concerns.

6. The Public Prosecution Service has undertaken to have the transcriptions vetted and prepared as soon as possible following the viva voce testimony.

7. The relief sought is in anticipation of the possibility of one of the witnesses inadvertently testifying in contravention of the s. 38.06 orders or national security interests. The concerns raised by the Crown are best captivated by repeating the language they used at paragraph 13 of their factum, “Despite that all efforts have been made to anticipate testimony that may be subject to a determination of nondisclosure under s. 38.06 of the Canada Evidence Act, and all efforts will be made not to disclose information subject to those orders, the dynamics of a criminal trial prevail. Questions that may be asked in direct or cross-examination have not been pre-screened. Answers given may be unanticipated and unintentionally encroach on areas that may engage concerns over disclosure of sensitive information. There remains a very real possibility that the witnesses, including the accused, whose evidence centers upon their duties and responsibilities involving access to highly classified information may inadvertently disclose sensitive information that has been prohibited from disclosure pursuant to s. 38.063, or in respect of which notice would be necessary pursuant to s. 38.012.”

8. There is a strong presumption in Canada that our courts are to be open and transparent. In the recent Supreme Court of Canada decision of Sherman Estate v. Donovan, 2021 SCC 25, the court reaffirmed this principle, stating,

“This Court has been resolute in recognizing that the open court principle is protected by constitutionally entrenched right to freedom of expression and as such, it represents a central feature of liberal democracy. As a general rule, the public can attend hearings and consult court files, and the press, the eyes and ears of the public, is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable. Accordingly, there is a strong presumption in favor of open courts. It is understood that this allows for public scrutiny, which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not as a general matter enough to overturn the strong presumption that the public can attend hearings, and that court files can be consulted and reported upon by the free press.”

9. There are discretionary limits on the open court principle. In the Sherman Estate case at paragraph 38, the Supreme Court set out the test for exercising these discretionary limits.

“The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order. Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the tests around these three prerequisites without altering its essence helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed the person asking a court to exercise discretion in a way that limits the open court presumption must establish that,

1. Court openness poses a serious risk to an important public interest;

2. The order sought is necessary to prevent this serious risk to the identified interests because reasonable alternative measures will not prevent this risk; and

3. As a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness, for example, a sealing order, publication ban, an order excluding the public from a hearing or redaction order properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments.”

10. In the unique circumstances of this case, I would grant this application and for the following reasons:

I. There is a clear and defined public interest, mainly national security. The s. 38 proceedings and various orders that came from these hearings make this abundantly clear.

II. I agree with the Crown that there is a real possibility, which I would equate with being a serious risk, that during the trial, particularly during cross-examination, something is said by one of the four specified witnesses, including the accused, that would violate the s. 38.06 orders, and that could be harmful to our country's national security interests.

III. The nature of the testimony of these witnesses is such that in my estimation, the risk is a real one. Experience teaches us that trials are highly unpredictable. And that the testimony of a witness, particularly when dealing with complex evidence is very difficult to control. If something were to be said and heard by the public or the press, there is no turning back. The harm that would be done could not be undone.

IV. The suggested limitation is not to foreclose the public or the press from ever reviewing the evidence or the testimony of any of the four witnesses, but to delay that review, as a safeguard and in the interest of our country's national security. It is akin to a hybrid remedy. The result here is not that the court or the evidence in question is closed to the public or the press. It is a case where the access is delayed, not denied. It is not an ideal situation, but a byproduct of the nature of this criminal case and the evidence involved.

11. Therefore, I would grant the requested order. However, I would remove from paragraph one of the order the words “and any other witness who may testify about matters that may be subject to notice under s. 38.01 of the Canada Evidence Act.” For if other witnesses are going to require excluding the public and the press, the request will have to be made as and when those witnesses testify, and not beforehand.

12. Finally, I would grant the media's request that the following be added to the end of clause three of the Crown’s proposed order, “For clarity, members of the media are free to report to the public that they have been excluded from the courtroom after a consortium of the media opposed this measure. And the fact that they are reporting from transcripts as well as to indicate whether they have been redacted.”

Maranger J.

Form 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT

(SUBSECTION 5(2))

Evidence Act

I, LORI JELEN, certify that this document is a true and accurate transcript of the recording of the Ruling, in the matter of R. v. Cameron Ortis, in the Ontario Superior Court of Justice, 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR33_20230926_091727__10_MARANGRO.dcr, as certified in Form 1.

Date: , 2023

L. Jelen

Certified Court Transcriptionist

ACT #2900548874