Ortis spy leak sentencing hearing
Seeking the meaning of deterrence and denunciation in an unprecedented case
The sentencing hearing in the case of Cameron Ortis, a former senior RCMP intelligence officer who was convicted by a jury on November 22, 2023 for offences under the Security of Information Act and the criminal code, got underway today. Mr. Ortis was found to have communicated sensitive intelligence to various criminal figures in Canada without any authorization.
The maximum penalty under the Security of Information Act (s14) is 14 years per count and the Crown made clear that it asks the court to impose a maximum penalty.
This is only the second time that a Canadian court has had to decide on sentencing for offences under the Security of Information Act (SOIA), since the act was passed in 2001. The previous case, under a different section of the SOIA (s16) involved the conviction of a Canadian naval intelligence officer, Jeffrey Delisle, who passed highly classified intelligence to a Russian intelligence service. Delisle pled guilty. Ortis did not, which may prove to have some bearing in sentencing. The Crown argues that Ortis’ “overall moral culpability,” because of his official position, planning, and multiple targets, was even higher than that of Jeffrey Delisle in passing secrets.
In the Delisle case, to the extent it proves to be a precedent, he was sentenced in February, 2013, in total, to 20 years in jail, less time served. There were additional sentences for Delisle of 9 years (attempting to communicate safeguarded information) and 5 years (breach of trust), but these additional sentences were imposed concurrently. Delisle was paroled in 2019 after serving one-third of his sentence. The parole board found him to be a “model inmate” and judged him unlikely to reoffend (well, he might not have much of a chance to do so).
The defence came back to the Delisle case but appeared to misunderstand how Delisle selected and provided intelligence to his GRU case officers or his reasons for doing so (it wasn’t the money). They failed to take advantage of some of the ambiguities around how the government presented evidence, through witnesses and affidavit statements, on the harms caused by Delisle (the depth of which were impossible to establish). Analogies need careful attention.
A more distant secrets case, involving a Hungarian-Canadian named Joseph Ratkai, acting as a low-level Russian agent caught in an investigative trap In Newfoundland by CSIS and the FBI, was raised by both the Crown and Defence lawyers. Ratkai, like Delisle, pled guilty to his plotting in 1988, and was sentenced to nine years in prison. Did the defence sniff an opening there? The problem, however, is that defence counsel, again, seemed not to appreciate some details of the Ratkai case, including the fact that Ratkai was simply a Russian asset not a trained intelligence officer. The “secrets” that Ratkai attempted to provide to his Russian handlers were in fact doctored “chicken feed” served up by the security agencies in Canada and the U.S. through a planted (female) informant. The best account of the Ratkai case is contained in the opening chapter of Jack Granatstein and David Stafford’s 1990 book, Spy Wars. I appreciate that the book is long out of print, but still, I suspect some local libraries have copies.
The Crown’s case for sentencing in Ortis got off to a slightly rocky start when their effort to file a “victim impact statement” on behalf of the RCMP was challenged and ultimately rebuffed by the judge, Justice Robert Maranger, who admitted he found it a bit “strange.” The Crown’s subsequent presentation, which reviewed the facts of the Ortis case in detail, stressed the gravity of Mr. Ortis’ offence, which undermined the ability of the RCMP to sustain its work in deploying intelligence in its investigations, harmed its relations with domestic and international partners, and aided serious organized crime figures to evade detection. The Crown also made much of the fact that Ortis put confidential informants at risk by disclosing, or preparing to disclose, their activities. He was painted as a person who engaged in careful and “sophisticated” planning of his crimes.
The Crown argued that sentencing needs to be based on principles of “deterrence and denunciation,” not least to send a message to our allied partners that Canada takes secrets breaches seriously. The Crown argued that the Ortis case matches the circumstances in which a maximum penalty should be imposed. That means 14 years for the security of information act offences and 10 and 5 years for criminal code breach of trust, and unauthorised use of a computer system, offences. Just to pile on the Crown argues that there should be consecutive sentences for the separate streams of security of information act offences that were targeted at different criminal entities. So that would theoretically mean 28 years (14 years X 2) behind bars for Ortis. The associated criminal code offences would be deemed concurrent sentences, so wouldn’t add to the total.
Had Mr. Ortis been convicted of providing intelligence to a “foreign entity” [state] or terrorist organization, he would have faced an even stiffer potential penalty—of life imprisonment (s15(3) of SOIA).
Calculations were provided of the number of days that Mr. Ortis has spent in custody. The Crown totalled this at 1,235 days (the defence agreed), with 53 of these spent when the jail was in COVID lock down. These numbers will come into play when a determination is made by the judge of how much credit to be applied for time served.
In the Crown’s concluding submission they argued for a sentence of 22-25 years, less 5 years credit for time served.
The Defence was up next. No surprise, they repeated their position that Ortis should be sentenced to time served with calculation for time credits associated with detention. They also calculated the number of days Ortis had spent in lock down at the Ottawa-Carleton Detention Centre—a total of 399 days. Ortis also spent a considerable amount of time in protective custody (PC), for reasons undisclosed. Over 1,000 of the 1,235 days in detention was spent in PC, in effect alone in a cell. Hard times, as the defence pounded home. The emotional nature of the appeal is designed to allow for even more credit (the Duncan rule) for time served beyond the usual calculation of 1.5 years credit per year in pre-trail detention. The defence would like 2 X 1 credit. Altogether that would mean 7 years, 2 months credit, so that is the sentence the defence is suggesting. That would be a sentence unprecedented in its brevity for secrets offences.
Curiously, the defence also raised issues about Ortis’ character and support, based on submitted letters, that spoke more to parole decisions down the road regarding rehabilitation of an offender.
They further argued that the principle of general deterrence really only applies to a small group of government officials who are subject to the Security of Information Act. It is not clear to me how this undermines the intended deterrent effect of a significant sentence, no matter how uncertain its real-world application might be (are insider threat actors ever deterred?).
Then there was an argument that anyone who committed SOIA offences would be equally blameworthy, and so the judge cannot pick Ortis out of such a crowd (thankfully more or less non-existent) and impose a maximum sentence. Especially as Ortis is the first person charged specifically under s14 of SOIA and has no previous criminal record (though the Defence admits that anyone with a prior criminal record would be unlikely to be granted the kind of high security clearances that Ortis once enjoyed).
Lots of legal argy-bargy. But the key point is that there is a huge gap between the Crown and the Defence on sentencing. The Defence wants calculated time served, so Ortis walks (admittedly into a very bleak future). The Crown wants 22-25 years less five, so penitentiary custody, at least at the outset.
The judge will have to wear the emotional burden of the Crown and Defence cases, as well as come up with a proportional sentence, without the assistance of much in the way of guiding precedence. Hopefully he will have more of the facts at hand about the semi-analogous Ratkai and Delisle cases raised by both the Crown and defence counsel.
Setting a precedent is itself a burden for a judge and may tilt the sentence against Ortis.
We will learn Justice Maranger’s decision on February 7. I plan to be there.
I start from the premise that I disagree with almost all sentencing about which I read. The reason is that the sentencing that is discussed in the popular press (now, there is an old fashioned phrase for you!) seems to lean very, very heavily on rehabilitation of the convicted individual and, well, "not being mean" (my interpretation of the flimflam that the lawyers seem to throw up).
In pretty much no instances that I have seen in the last few years is there a conscious thought to actual deterrence nor to the expression of society's abhorrence of the crime in the sentences meted out.
In this case, I lean heavily on the issue of deterrence and our abhorrence Ortiz's for actions and how it endangered Canada.
So, I come down very heavily on the idea of maximum concurrent sentences. After all, the scum sucker will be out relatively quickly, what with mandatory release, etc. (Yet another idea oriented NOT to protection of society.)
Short and sweet: let the guy rot!
Thank you for the update; and, yes, in a case like this one, one would expect to see a vigorous “back and forth” between counsel about their proposed disposition of the case.
Now, though, we can expect that the judge will consider those submissions, together with any helpful precedents - plus general principles like: “deterrence”, “denunciation”, and the prospects for “rehabilitation”. Then he will issue the penalty decision, together with written reasons for the conclusion that he has reached. Which (whatever he decides) may leave open the possibility of early release by the parole authorities, usually after serving 1/3 of the sentence.
However, don't forget that the convicted person canalso appeal the jury verdict, because of some legal error made by the judge during the hearing – like in his instructions to the jury - or by arguing that the jury decision is not reasonably supportable on the basis of the evidence adduced. Likewise it may be open to challenge the sentence.
Accordingly, this legal exercise may be far from over; and if it gets before an appeal court, then that body may also provide an illuminating factual or legal overview.
So stay tuned.