Why the history-making Ortis espionage trial left prosecutors ‘walking on eggshells’

When jurors convicted former RCMP official Cameron Ortis of leaking secret information to police targets earlier this week, they didn’t just seal his fate — they made history.

Ortis’s trial was the first to test charges under the 20-year-old Security of Information Act in court.

“We learned that offences can be contested and successfully prosecuted, which we did not know before, which is great. We also learned that it takes a lot of creativity and flexibility,” said Leah West, who teaches national security law at Carleton University.

“I think there’s a couple of things about this trial that also make it unique.”

The Security of Information Act was born out of Canada’s response to the 9/11 terrorist attacks and was adopted by Parliament on Christmas Eve of 2001. It amended and renamed what had for years been known as the Official Secrets Act.

The act makes it an offence to share safeguarded information or “special operational information.” It includes harsh penalties for those caught leaking to a foreign entity or terrorist group.

In a verdict delivered Wednesday, Ortis was found guilty of three counts of violating the act and one count of attempting to do so. Jurors also found him guilty of breach of trust and fraudulent use of a computer.

The nature of the case made for an unusual trial. Certain evidence was excluded from the trial due to national security concerns.

And in a rare move, Ortis testified behind closed doors. Members of the public, including journalists, were locked out of the courtroom and had to rely on redacted transcripts.

Crown lawyer Judy Kliewer compared her work during the trial to “walking on eggshells.”

“Because of the national security issues, because you’re worried about what you can and cannot put into evidence,” she said.

Defence lawyer Jon Doody argued the evidence rules handcuffed Ortis’s defence.

“It becomes a difficult dichotomy between protecting Canada’s national security and prosecuting people who may have offended that act. And so it’s a difficult decision and some individuals might argue that in order to protect Canada’s national security, you have to give up trying to prosecute someone for it,” he told reporters before the verdict. 

“It’s very difficult to try and walk both lines … and we are seeing that difficulty play out here.”

Other charges dropped

Another unique aspect of the case was how the Crown and defence teams largely agreed on the facts that were presented to the jury.

Ortis testified that he did share special operational information but argued he had the authority to do so. He told the jury he was acting to protect Canada from a grave threat shared with him by a foreign agency.

Ortis initially faced four other charges under section 16 of the Security of Information Act, which deals with communications with foreign entities or terrorist organizations.

The Crown argued back in 2019 that Ortis was “on the cusp” of passing state secrets to a foreign entity. Court documents from 2020 suggest the RCMP feared he was preparing to leak to Chinese officials. 

Those charges were dropped before the trial began. In a ruling that was under a publication ban until Wednesday, the court concluded that restrictions on the use of classified information would prevent Ortis from presenting a full defence on those charges.

West said that raises concerns about the Attorney General’s chances of pursuing more complicated and contested national security cases — especially ones involving intelligence from the Canadian Security Intelligence Agency (CSIS).

“That really remains to be seen. This didn’t end up being a hard case,” West said, adding that a case involving more sensitive intelligence might be a lot harder to prosecute successfully.

Former intelligence analyst Jess Davis said she still thinks the conviction sends a message to those working in the security and intelligence community.

“The RCMP has demonstrated its competence and ability — and willingness, frankly — to investigate and prosecute individuals,” she said.

“That means anybody who’s involved in leaking material in an unauthorized manner to newspapers, to journalists … they’ve now been told, in no uncertain terms, that this is something we can take action on, and we will.”

Only one other Canadian has been convicted

Ortis joins a small club of Canadians charged under the act and is the first of them to be found guilty by a jury.

In 2012, Jeffrey Delisle, a Canadian naval officer, pleaded guilty to violating the act and was sentenced to 20 years in prison. Delisle sold secret material to Russia in exchange for upwards of $110,000 over more than four years.

He told an RCMP interrogator that he was “so dead inside” after his wife cheated on him.

More than eight years ago, Qing Quentin Huang, who worked for a subcontractor to Irving Shipbuilding Inc., was accused of offering secrets to China. A judge stayed the proceedings in 2021.

Two Security of Information Act cases are still working their way through the court system.

This summer, police charged retired RCMP employee William Majcher with two counts under the act. He has been granted bail and has not formally entered a plea.

An RCMP news release alleged Majcher “used his knowledge and his extensive network of contacts in Canada to obtain intelligence or services to benefit the People’s Republic of China.”

Last year, the RCMP charged Yuesheng Wang with economic espionage under the act. The former Hydro-Québec researcher is accused of obtaining trade secrets for the benefit of China.

Davis, now president of Insight Threat Intelligence, said the verdict also signals to Canada’s allies — whose intelligence was leaked by Ortis — that “we can keep our side of the street clean.”

“No one has the expectation that there’s going to be no leaks or no insider threats in any country. This is a common problem that we all deal with,” she said.

“What our allies really wanted to see was to make sure that when push came to shove, that we were able to clean house and make sure that the people who are involved in these kinds of activities actually face consequences … Because if they don’t face any consequences, the problem just gets worse and worse.”

Act needs an update: West

West said that despite the successful prosecution of Ortis, the act still needs an update.

“It’s old,” she said, pointing to parts of the act that were deemed unconstitutional in 2006 by the Ontario Superior Court after Mounties raided a reporter’s home.

In 2004, the RCMP combed through Ottawa Citizen reporter Juliet O’Neill’s home and office in an attempt to find the source of her information about the Maher Arar affair, after O’Neill ran a story offering details of what Arar allegedly told his Syrian captors. The story cited a “security source” and a leaked document.

A judge later struck down Section 4 of the Security of Information Act as “unconstitutionally vague” and an infringement of freedom of expression.

“So you know, if you actually wanted to prosecute a leakage case, could it work?” asked West. “There’s definitely room to improve this old legislation.”

The Crown said it will seek a severe prison sentence for Ortis in the range of 20 years or more. The defence said Ortis already served three years waiting for the trial.

“Mr. Ortis has served enough time and there’s no basis to further incarcerate him,” Mark Ertel told reporters after the verdict.  

A sentencing hearing is scheduled for January.