When a jury found former RCMP officer Cameron Ortiz guilty of leaking classified information to a police target earlier this week, they not only sealed his fate, they made history.
Ortiz’s trial was the first to test charges under the 20-year-old Information Security Act in court.
Leah West, who teaches national security law at Carleton University, said: “We learned that crimes can be challenged and prosecuted, which is a great thing that we didn’t know before.” “I also learned that it requires a lot of creativity and flexibility.”
“I think there are several things about this trial that make it unique.”
The Information Security Act grew out of Canada’s response to the 9/11 terrorist attacks and was adopted by Parliament on Christmas Eve 2001. What was known for many years as the Official Secrets Act has been amended and renamed.
The law makes it a crime to share protected information or “special operational information.” This includes severe penalties for anyone caught leaking information to foreign organizations or terrorist groups.
In Wednesday’s verdict, Ortiz was found guilty of three counts of violating the law and one count of attempted violation. The jury also found him guilty of breach of trust and computer fraud.
The trial was unusual due to the nature of the case. Certain evidence was excluded from the trial due to national security concerns.
And in an unusual move, Ortiz testified behind closed doors. Members of the public, including journalists, were barred from courtrooms and had to rely on redacted records.
Crown attorney Judy Kriewer compared her job during the trial to “walking on eggshells.”
“Because we’re concerned about what can and cannot be put into evidence because of national security issues,” she said.
Defense attorney John Doody argued that the evidence handcuffs Ortiz’s defense.
“It’s a difficult dichotomy between protecting Canada’s national security and prosecuting people who may have violated that law. So this is a difficult decision, and it’s important to protect Canada’s national security.” Some might argue that in order to protect the guarantees, we have to give up on prosecuting someone,” he told reporters before the verdict.
“Trying to walk both lines is very difficult…and we’re seeing that difficulty play out here.”
Other charges were dismissed
Another unique aspect of this case is that the Crown team and the defense were largely in agreement on the facts presented to the jury.
Mr. Ortiz testified that he shared special operations information, but insisted he had the authority to do so. He told the jury he was acting to protect Canada from a serious threat from a foreign entity.
Ortiz was originally charged with four other charges under Section 16 of the Information Security Act, which deals with communications with foreign or terrorist organizations.
The king claimed in 2019 that Ortiz was “on the verge” of handing over state secrets to a foreign entity. Court documents from 2020 suggest the RCMP was concerned that he was preparing to leak information to Chinese officials.
These charges were dropped before the trial began. In a decision that was subject to a publication ban until Wednesday, the court concluded that Ortiz was unable to mount a full defense to these charges due to restrictions on the use of classified information.
West said this raises concerns about the possibility of the attorney general pursuing more complex and contentious national security cases, particularly those involving information from the Canadian Security Intelligence Service (CSIS). said.
“That remains to be seen. In the end, it wasn’t a difficult case,” West said, adding that cases involving more sensitive information may be much more difficult to successfully prosecute.
Former intelligence analyst Jess Davis said she still thinks the conviction sends a message to those working in the security and intelligence communities.
“The RCMP has demonstrated the ability, ability and, frankly, willingness to investigate and prosecute individuals,” she said.
“This means that whoever was involved in fraudulently leaking information to newspapers and journalists has now been told in no uncertain terms that this is an issue on which we can take action. We will do that.”
Only one other Canadian has been convicted.
Ortiz joins a small club of Canadians charged under the law and is the first to be found guilty by a jury.
In 2012, Canadian naval officer Jeffrey Delisle pleaded guilty to violating the law and was sentenced to 20 years in prison. Delisle sold secret materials to Russia over four years in exchange for more than $110,000.
He told RCMP that he was “really dead inside” after his wife cheated on him.
More than eight years ago, Ching Quentin Huang, who worked for a subcontractor for Irving Shipbuilding, was accused of providing secrets to China. The judge halted proceedings for 2021.
Two cases related to the Information Security Act are currently being heard in court.
This summer, police charged retired RCMP officer William Machar with two offenses under the Act. He has been granted bail, but he has not entered a formal plea.
An RCMP news release alleged that Meicher “used his knowledge and extensive contacts in Canada to obtain information and services that benefited the People’s Republic of China.”
Last year, the RCMP charged Wang Yuesheng with economic espionage under the Act. A former Hydro-Québec researcher is accused of obtaining trade secrets for the benefit of China.
Davis, now president of Insight Threat Intelligence, said the ruling also sends a message to Canada’s allies whose information was leaked by Ortiz: “We can keep our streets clean.” said.
“No one expects that there will be no leaks or insider threats in any country. This is a common problem that we all deal with,” she said.
“What our allies really wanted was to make sure that when the time came, we could clean house and make sure that people who were participating in this kind of activity actually faced consequences. Because if they don’t act, if they don’t face any consequences, the problem will only get worse.”
Act requires update: West
West said that despite the successful prosecution of Ortiz, the law still needs updating.
“That’s old,” she said, referring to a part of the law that was deemed unconstitutional by the Ontario Superior Court of Justice after Mounties raided a reporter’s home in 2006.
In 2004, RCMP combed the home and office of Ottawa Citizen reporter Juliet O’Neill, trying to find her sources on the case. Maher Aral incident, after O’Neill published an article providing details of what Aral allegedly told Syrian prisoners. The article cites “security sources” and leaked documents.
The judge then condemned Article 4 of the Information Security Law as “unconstitutional and vague” and a violation of freedom of expression.
“So if you actually wanted to prosecute a leak case, would that work?” West asked. “There is definitely room for improvement in this old law.”
The Crown announced that Ortiz would be sentenced to more than 20 years in prison. Defense attorneys said Ortiz has already served three years in prison awaiting trial.
“Mr. Ortiz has served enough time and there is no basis for further incarceration,” Mark Ertell told reporters after the sentencing.
A sentencing hearing is scheduled for January.
