The lawyer for an RCMP official accused of preparing to leak sensitive information is seeking to have at least part of the case against him stayed.
Cameron Ortis, who served as director general of the RCMP’s national intelligence co-ordination centre, is charged with violating the Security of Information Act. He was arrested in September 2019 and is accused of trying to share sensitive information with a foreign entity or terrorist organization. He’s also charged with sharing operational information in 2015.
Ahead of his criminal trial this fall, the Federal Court has been looking at the Canada Evidence Act, which balances protection of national security with the constitutional right of the accused to a fair trial.
For months now, that court has been looking into whether sensitive and potentially injurious information could be disclosed in open court or should be protected for national security reasons.
Federal Court Justice John Norris has so far delivered one of three decisions on the disclosure of sensitive information in Ortis’ case. In that decision he prohibited disclosure, although his reasons are covered by a publication ban.
On Thursday in Superior Court, Ortis’ lawyer Ian Carter said he is seeking a stay of the proceedings on the grounds that his client has the right to a fair trial.
A stay of proceedings puts a hold on a legal process. It can be temporary or permanent.
It’s not clear yet whether Carter will seek a total stay in proceedings or a partial stay.
“I am still awaiting additional … decisions so cannot say for certain until I receive those decisions,” he told CBC News in an email.
The hearing on a possible stay of proceedings is scheduled for mid-April. On Thursday, an Ontario Superior Court judge granted the Crown’s request to move the details of that hearing behind closed doors.
Crown Prosecutor Judy Kliewer moved to have the public excluded from the courtroom when both she and Carter make their arguments about staying the case. She also called for a ban on access to the materials and any transcriptions and recordings, which was granted.
It “is necessary to prevent injury to national security through disclosure of the sensitive information,” she wrote in a notice of application filed with the Superior Court.
She also asked that any decision made at the end of the stay application proceedings not be published until the jury retires to consider its verdict or the case otherwise concludes.
The Crown argued that the openness of court “poses a serious risk to an important public interest” and that “it is necessary to prevent this serious risk.”
“As a matter of proportionality, the benefits of the order outweigh its negative effects,” said the court documents.
National security cases hard to prosecute: lawyer
Aaron Shull, manager and general counsel for the Centre for International Governance Innovation, said the trial judge now has to decide on the appropriate mechanism to protect the rights of the accused to a fair trial — which could include issuing an order regarding disclosure, dismissing certain counts or throwing out the entire case.
“If the non-disclosure will impact trial fairness in a significant or irreparable way, that’s it. Show’s over,” he said.
Shull said not all instances of non-disclosure contribute to an unfair trial, so it will be up to the judge to sort through the merits of the arguments.
“If the judge can’t decide whether or not it would impinge the right to a fair trial, including the right of the accused to make a full answer in defence, then basically they’ll dismiss the case,” he said.
Shull said the Ortis case illustrates the difficulty involved in prosecuting national security cases in Canada.
Late last year, the Ontario Superior Court stayed criminal proceedings against Canadian engineer Qing Quentin Huang — who was accused of offering to provide Canadian military secrets to China — due to unreasonable delays. The case spent 33 months in Federal Court dealing with national security disclosures.
“I appreciate the intricacies here at the interplay between evidence and intelligence and [the Charter of Rights], but at the end of the day we will have to determine a way to get through this,” Shull said.
“This strikes the … core interests of Canada as a country. If we’re unable to prosecute these types of cases, it sends the wrong messages to allies, it sends the wrong messages to Canadians, and it sends the wrong messages to would-be spies.”
Ortis, who remains in custody and has not entered a plea, is scheduled for an eight-week jury trial starting Sept. 6.