Ortis' defence lawyers and the Crown duke it out
Is there a winner?
Closing arguments were heard in the Cameron Ortis case on November 16 and 17. For those of you unfamiliar with the court process, closing arguments are a key opportunity for both the defence and crown prosecutors to put forward their best case for the accused’s innocence or guilt. They are addressed to, in this case, a jury. They are not part of the evidence in the case but they are submissions about that evidence. Usually they are the high water mark of a trial—the Netflix moment, if you will.
There has been excellent media coverage of the closing arguments from the likes of Catherine Tunney for CBC, Jim Bronskill for Canadian Press, Kristy Kirkup for the Globe and Mail and Chris Nardi for the National Post (sorry if I have forgotten anyone!). I refer you to your favourite source, or all of the above. I don’t plan to repeat their summary and coverage but instead try to distill the core strategies of the opposing camps.
For the defence, there were two elements. One was a portrait of Mr. Ortis, referred to familiarly as “Cam” by his counsel, as a loyal defender of Canada’s national security, who was acting in the best interests of his country. In particular, the jury heard that Mr. Ortis was driven by a desire to ensure that the RCMP was seen as a valued partner in the Five Eyes intelligence community. This led him to share sensitive intelligence in communications with various organised crime figures, based on a plan suggested to him by an unnamed) counterpart in an unnamed Five Eyes intelligence service. The details of the plan, the counterpart official, and the Five Eyes country involved were not disclosed in court by Mr. Ortis. He claimed they could not be.
A second, related element in the defence’s case was to encourage the jury to think about Mr. Ortis’ motive, and to apply their common sense. The defence called this “the most crucial question.” They referred to the fact that, according to Mr. Ortis’s testimony, the plan he embarked on to share sensitive information, called Project OR “Nudge,” was a success. Mr. Ortis never received any payment and never revealed a promised set of ”unembargoed records” beyond what he called the “snippets” that he had communicated initially to his selected contacts in the February-March 2015 time frame. Mr. Ortis’ efforts to communicate with organised crime figures ended almost as abruptly as they had begun.
Mr. Ortis’ motive, according to the defence, was clear, to act on the prompt received from the unnamed Five Eyes partner, to assist that partner in the hopes that the RCMP might benefit down the road through the receipt of enhanced criminal intelligence and that its status as a Five Eyes partner might be boosted. The effort was described as “low risk” and “low resourced” and was over quickly. Mr. Ortis, Cam, was not just innocent, as the instigator of “Nudge” he was pursuing a higher mission.
The Crown’s argument for Mr. Ortis’s guilt was, predictably, just the opposite. It was a portrait of Mr. Ortis as a fabricator, someone who concocted a story that “doesn’t have the slightest ring of truth.” According to the Crown he didn’t act from some “lofty, secret purpose,” but was engaged in a self-motivated, criminal act.
The Crown piled on with a lengthy address to the jury about seven “fundamental flaws” in the Ortis story. These included raising doubts about the nature of the “strict caveat” imposed on Mr. Ortis by his Five Eyes partner, which prevented him from sharing any aspect of the plan with his superiors, as well as the (unspecified) information about a mole or moles within the RCMP leaking information to organised crime, which allegedly supported Mr. Ortis decision to run his Project Nudge secretly and keep it from his superiors. Ortis’ selection of his organised crime targets to communicate with was also contested, on the grounds that Ortis knew all were under investigation by the RCMP. The Crown also fought back on the argument that Project Nudge was low risk. In the Crown’s view it was very high risk, allowing targets of investigations to evade law enforcement, and putting informants in personal danger. The Crown challenged the apparent contradiction in Ortis’s testimony that the sensitive information he sent to his criminal contacts was already generally known to them (which, if true, would have undermined its value as an inducement for them to cooperate).
The seventh fatal flaw (with its Ingmar Bergman ring!) was, for the Crown, the ultimate one. That the logic of Mr. Ortis’s story was empty. No organised crime figure like Vincent Ramos, making very good (bad) money from selling encrypted Blackberries to the global underworld was likely to forego all this to encourage his clients to instead adopt a free encrypted e-mail service called Tutanota (an alleged “front” for an unnamed Five Eyes intelligence service).
As counsel will (must) do, an effort was made to undermine Mr. Ortis’s credibility as a witness. The Crown described his testimony as evasive and his memory as very selective. His web browsing records, captured through a warrant, had many unexplained elements, including some basic research on Tutanota, an interest in Cambridge spies including Kim Philby, and searching for information on counter-surveillance, anonymous receipt of money, and bitcoin usage. (But who among us could fully defend our web searches!). Ortis’ claim that he was doing an assessment of the Snowden leaks two years after their occurrence and while on holidays didn’t quite make the credibility cut. Then there were Ortis’ suggestion that he tasked various people to do research for him and prepare materials for Project Nudge—the evidence for this was also called into question.
But whereas the defence made a case about Ortis’ motive and stressed to the jury it was an important consideration, the Crown reminded the jury that it does not have to demonstrate any motive on Ortis’s part. Sometimes the motive is simply unknown. Did Mr. Ortis have a profit motive?—the Crown would only say…maybe.
Bringing the case back to the charges, the Crown ended by saying that it was the jury’s task not to decide on the why of the case, but on the what—did Mr. Ortis have the authority to communicate sensitive intelligence to organised crime figures. They reminded the jury that no record was ever found in RCMP searches of Project Nudge. It was, in their views, simply Mr. Ortis’s off-the-books criminal enterprise.
Is this the last word? No, of course not. The jury decides. The jury gets to consider motive. The jury has to establish, on a unanimous basis, whether Mr. Ortis’s guilt has been established by the evidence, “beyond a reasonable doubt.” The jury will have to wrestle with whether the defence’s claims about Mr. Ortis motive have the ring of truth and how much this colours the evidence.
As the presiding judge, Robert Maranger, told the jury—you will have an interesting week ahead.