The Ortis "spy" trial

Or, what an extraordinary case this is

For this first time in modern Canadian history, a jury is hearing a “spy” case. Cameron Ortis, a former RCMP civilian intelligence officer, was charged in 2019 with six counts under  the 2001 Security of Information Act (SOIA)--an update of the much older Official Secrets Act. He is accused of the unauthorized transmission of what is called “special operational information” (as defined in the SOIA). In other words, leaking or betraying secrets. The recipient of those secrets were organized crime figures in Canada. Ortis reached out to them via email.

These actions became known following the arrest by the FBI in Las Vegas in March 2018 of a Canadian businessman named Vincent Ramos. Ramos ran a company called Phantom Secure out of a strip mall in B.C.  The business premises might not have been impressive, but Phantom Secure’s activities were and drew the attention of international intelligence and law enforcement organizations.  Why? Because Phantom Secure sold customised Blackberries with strong encryption to organized crime syndicates around the world, with the intent on helping them evade law enforcement. Law enforcement and intelligence agencies, understandably, wanted to bring down Ramos’ organization. Encrypted communications in the hands of bad guys is one of their great bugbears.

When Ramos’s seized laptop was analyzed by the RCMP it found, to its horror, that there were communications on it from someone with access to RCMP, other Canadian security agencies, and Five Eyes (the intelligence alliance between Canada, the USA, UK, Australia and New Zealand) , secret information. Eventually the RCMP hunt settled on Ortis as the culprit. On his arrest in September 2019, a trove of computers and an encrypted USB key were seized at his downtown Ottawa apartment, which provided further evidence of his communications with organized crime figures.

Closing arguments in the case began today (Thursday, November 16). They continue on Friday morning and will be followed by the Judge’s instructions to the jury, a session that is likely to run into Monday. In many ways it has been a tight and tidy trial, made possible by the defence’s willingness to admit a lot of evidence into the trial as part of an agreed “statement of Facts.”

I’ll reflect on closing arguments when they are completed.  For now, three things stand out for me in the Ortis proceedings.

One is the massive amount of material evidence made public involving RCMP practices and Ortis’ communications. Rarely have we had such a glimpse into the security operations of the Mounties, especially when it comes to the intelligence unit that Ortis headed when he communicated classified information to organized crime—something called Operational Research (OR)—since disbanded.

A second is the extraordinary rationale advanced by the defence, and in testimony by Cameron Ortis himself, about the reasons behind him supplying classified information to underworld figures. The essence of the story is that Ortis was contacted by a “counterpart” official in an unnamed foreign intelligence agency in the Fall of 2014 (via two secure telephone calls) about a window of opportunity to try to ensnare criminals by getting them to move their email communications onto a system which claimed to provide end-to-end encryption but was in fact an intelligence “front”—a “storefront.”  The claim is that this storefront service would allow the foreign intelligence service backdoor access to the communications of organized crime syndicates.

One problem with the storefront narrative is that the email service in question, Tutanota (now “Tuta”), created by a German company established in 2011 in Hannover to provide secure communications to its users, has vociferously denied being under the control of any intelligence service. I suppose you could say…’well, they would, wouldn’t they.’ But Mr. Ortis might find himself under another sort of legal jeopardy for this claim.

Ortis told the jury that he thought about what his “counterpart” had told him and ultimately devised a plan, called OR (Operations Research) “Nudge” (perhaps not the most clever of codenames). He then began to provide classified intelligence to a select set of Canadian crime figures, including Vincent Ramos and people based in the GTA involved in money-laundering, with Iranian connections, allegedly in order to encourage (nudge) them to move their communications to Tutanota where they could be exploited by the unnamed foreign intelligence agency.  

Sending the classified material, Ortis claimed, was solely to establish his bona fides as a supposed private sector “hacker” in search of paying clients. But this “hacker” had a penchant for email security and ultimately wanted his contacts to use the Tutanota service. It has to be said that Ortis was very “generous” with the material he supplied. It was hardly chickenfeed.

Though testimony was contradictory on this point, the alleged “Operation Nudge” was seemingly a one-man show, run by Ortis. He did not tell his superiors in the RCMP about the contact from a foreign intelligence partner, about the plan he devised, or about his actions. He sought no approvals or authorizations.

Why not?  This leads to the third extraordinary dimension of the Ortis trial. Ortis claimed two reasons for not informing his superiors and getting their approval (which the trial was told would never have been forthcoming). One was that he was prevented from doing so by some kind of strict caveat placed on the information given to him by his foreign intelligence counterpart. So strict he was not meant to share the information with a single soul (…come on).  

Then there was this bombshell. The other reason Ortis could tell no one about his plan was that he had been informed (by who is unclear) that there were “moles” in the RCMP feeding inside information to organized crime. So he had to keep super quiet about what he was up to to prevent these “moles” from finding out and stymieing the plan.

Mr. Ortis’ counsel has tried to make much of the alleged fact that Ortis is unable to defend himself properly, because he can’t speak about certain secrets he knows.  But this is to confuse government-imposed restrictions on trial evidence under s38 of the Canada Evidence Act, with Mr. Ortis’ own determination of what he can say (or not).

The defence has said from the outset of the case that Mr. Ortis had authority to do what he did and a “compelling” story to tell. Well, he has told it and the jury will have to decide how compelling it is and the extent to which it creates a reasonable doubt in their mind about his guilt.

To get to that point both defence counsel and crown prosecutors have urged the jury to use “common sense.” They mean radically different things by common sense, of course.

What yardsticks are suggested to them by the presiding judge, Robert Maranger, will be fascinating to hear. So, too, will be the question of what yardsticks the jury actually adopts.

Courtroom 31 in the Ottawa courthouse was not crowded today ( a few RCMP types, and journos mostly). But you can be sure Canada’s allies in the Five Eyes, including members of a sub-committee of allied reps called FELEG (Five Eyes Law Enforcement group)  are watching the outcome of this trial with great attention. It’s not just Ortis who is on the stand.

While our intelligence allies are watching, so are we all, to try to figure out the whys of this case.  Why did Ortis traffic in classified intelligence and, just as interesting, why did he stop, apparently without ever receiving the payment he requested?  Common sense approaches may not get us all the way there.