The Jury is out (Literally)

What happens next in the Ortis case?

Justice Robert Maranger of the Ontario Superior Court completed his instructions to the jury this morning (November 20).  The fate of Cameron Ortis now lies in the jury’s hands. The fate could be heavy.  The jury must decide on his guilt or innocence with regard to the charges laid against Ortis back in September 2019. Four of those charges, the key ones, relate to breaches of the security of information act; two more are ancillary, criminal code charges to do with the unauthorized use of computer systems and breach of trust. If found guilty on all counts, the 51-year old Ortis will face a very lengthy prison term.

The twelve-person jury, seven men and five women, have a unique task. Their job is to reach an unanimous verdict as a jury in a secrets case. The last time a Canadian jury met to deal with such charges, as best I can determine, was in the Gouzenko affair, dating back to 1946! (Thanks to Reg Whitaker for confirming this). Official secrets cases, when they go to court often bring about guilty pleas (Delisle, 2012; Ratkai, 1989; James Morrison, a.k.a. “Long Knife,” 1986).  Some don’t go to court at all. Some, famously, are tried in foreign jurisdictions, as happened in the Hugh Hambleton case, when he injudiciously decided on a vacation in the UK and ended up in the hands of MI5 and the British courts.

There is no guilty plea in the Ortis case, but instead we have an extensive “agreed statement of facts” in the case, which establishes three key elements.

One is that Ortis was a person “permanently pledged to secrecy” under the provisions of the Security of Information Act. Permanently pledged to secrecy provisions apply to a category of government officials who, in the course of their official duties, have access to the most sensitive intelligence holdings of the Canadian government, typically involving signals intelligence, Five Eyes information, and information from human sources. Anyone who is designated as a person permanently pledged to secrecy is meant to take secrets to his or her grave (that’s as permanent as it gets).

The second element in the agreed statement of facts is that Ortis communicated “special operational information” to organised crime figures in Canada. Special operational information has a loose definition in the Security of Information Act but essentially refers to all classified intelligence.

The third is simply that Ortis acted intentionally.

These three elements, on their face, might appear to be a slam dunk for the crown prosecutors. But they simply take us to different aspects of the case. If there is an admission about what Ortis did, there are still questions around whether he had the right authority to undertake his communications and why he acted as he did.

In terms of his authority to communicate sensitive intelligence to organised crime figures, there is a lot weighing against Ortis, above all the fact that he never briefed or informed his superior officers in the RCMP about his activities, that no record could be found in the RCMP archives about the project that Ortis said he created—Operation “Nudge,” and that Ortis was not permitted to conduct covert (undercover) operations.

Justice Maranger told the jury that the question of whether Ortis had the authority to share classified intelligence should be the “focus” of its deliberations. The Justice reminded them that it was not enough that Ortis might have believed he had the authority—there had to be evidence of real authority.

As the jury ponders this, where will they look?  Likely to two sources, both of which the defence has carefully led them to. One is the lengthy terms of reference of Ortis’s job description as head of Operational Research, an intelligence analysis unit in the RCMP which he headed at the time of the alleged crimes in 2015. The other is the mysterious exchange between Ortis and an unnamed counterpart official in an unnamed Five Eyes intelligence service, which alerted Ortis to what he described as a “grave threat” and which appears to have contained the outlines of a plot to ensnare organised crimes figures into using a supposed “storefront” (secretly controlled) email encryption service based in Germany as an access point into their communications and plans.

Could Ortis have conceivably been operating on the authority conveyed by this Five Eyes arrangement—the details of which have not been revealed in court?  Ortis has claimed that he cannot speak about this matter because of a “strict caveat” imposed on him by his foreign agency counterpart—the same argument he used in court for not telling his superiors anything about the matter, coupled with an unnerving suggestion that organised crime groups had penetrated the RCMP and had “moles” within it.

Whether there is some “authority” to be found in Ortis’s job description or in this exchange with a Five Eyes partner will be something the jury will have to wrestle with as it meets the test of evidence that establishes guilt “beyond a reasonable doubt.”

Then there is another layer of mystery. It is about Ortis’ motives in sending classified intelligence to organised crime figures. The crown has said, rightly, that it does not need to advance a theory about motive in order to prove Ortis’ guilt beyond a reasonable doubt.  Crown prosecutors reminded the jury that sometimes motive will simply not be known.

The defence has a different take, arguing that motive is “the most important question” and that the apparent absence of motive in the case may, in their words, be a critical reason to lead the jury to believe that Ortis’ guilt is not established beyond a reasonable doubt.

At the very least, on the available evidence, Ortis’ motives remain a puzzle and an unknown.   The jury has been encouraged to use its common sense in reaching a verdict.  But there is not much common sense available to apply to the motive element of the case. Consider that Ortis did not receive any financial payment; that he ran his “Operation Nudge” for a limited period of time in early 2015; that he did not make any known plans to further engage in breaches of the security of information act; and that the whole activity was wound down by May 2015.

This leads the defence back to the argument that Ortis’ actions were based on his working to satisfy a Five Eyes partner and to further the mission of the RCMP’s Operations Research branch, to advance the ability of the RCMP to take advantage of so-called “high-side” (highly classified) intelligence and improve the RCMP‘s standing in the Five Eyes community as a partner. Thus, it was all done in a good cause (this argument also impacts on one of the criminal code charges he faces regarding breach of trust).

As the phrase goes in Texas (apparently), does that dog hunt?

That will be for the jury to decide. They have deliberated, so far, for one afternoon. The longer the jury is out, the more likely it seems they have become entangled in these arguments about authority and motive in the secret world. Is there a Le Carre among them?