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0 The trial for Cameron Ortis, the former director general of RCMP intelligence charged with leaking top-secret information, is set to get underway this morning.
The 51-year-old faces four counts under the Security of Information Act (SOIA), legislation reserved for some of Canada’s most delicate national security matters: espionage, terrorism and insider threats.
His trial pushes the decades-old law into the spotlight.
SOIA meant to safeguard state secrets
The Security of Information Act was born out of Canada’s response to the 9/11 terrorist attacks and was adopted by Parliament on Christmas Eve of 2001. It amended and renamed what had for years been known as the Official Secrets Act.
“The Security of Information Act is designed to criminalize essentially leaking or selling or sharing information that is classified,” said Leah West, who practises national security law and teaches at Carleton University’s Norman Paterson School of International Affairs.
“It is the stick, if you will, to keep people from unlawful or unauthorized sharing, leaking, selling, etc.”
The act makes it an offence to share safeguarded information or “special operational information” with a foreign entity or a terrorist group.
It also makes certain people “permanently bound to secrecy,” according to the wording of the law.
Some government employees are automatically covered by the act. They include employees at the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE) and certain departments of the RCMP, and those working in military intelligence.
Others can be bound to secrecy under the act if their jobs deal with special operational information or if a deputy head of a federal government department believes doing so is in the interest of national security.
The penalties for breaking the law are severe. Ortis faces up to 14 years in prison. Other offences under the act can lead to life sentences.
Andrew House, who co-leads the national security group at Fasken Law, said those who fall under the act make up a relatively small circle in government.
Canada is known as a “net importer of intelligence,” he said — meaning those covered by the act may not be looking only at Canadian intelligence.
“Sometimes the information collected is not collected by Canadian officials, but it’s collected abroad and shared with Canada,” he said.
“This is pretty exotic stuff.”
Convictions are rare
Charges under the act are rare. Trials and convictions are rarer still.
To date, there has been only one conviction under the act. In 2012, Jeffrey Delisle, a Canadian naval officer, pleaded guilty to violating the act and was sentenced to 20 years in prison. Delisle sold secret material to Russia in exchange for upward of $110,000 over more than four years.
He told an RCMP interrogator that he was “so dead inside” after his wife cheated on him.
House was serving as the chief of staff to the minister of public safety at the time.
“You have a certain horror at what has happened, but also a relief and a sense of pride that there are systems in place, including with our Five Eyes allies, to catch people like this,” he said.
The Five Eyes is an intelligence sharing network made up of the U.S., the U.K., Canada, Australia and New Zealand.
While there have been other charges under the act, Ortis’s trial will mark the first time SOIA charges are tested in court.
More than eight years ago, Qing Quentin Huang, who worked for a subcontractor to Irving Shipbuilding Inc., was accused of offering secrets to China. A judge stayed the proceedings in 2021.
Two SOIA cases are working their way through the court system.
This summer, police charged retired RCMP employee William Majcher with two counts under the act. He has been granted bail and has not formally entered a plea.
An RCMP news release alleges Majcher “used his knowledge and his extensive network of contacts in Canada to obtain intelligence or services to benefit the People’s Republic of China.”
Ortis trial is a ‘test case’
The law also makes it an offence to steal or destroy a trade secret to the detriment of Canada’s economic interests for the benefit of, or in association with, a foreign economic entity.
That provision was used for the first time last year when the RCMP charged Yuesheng Wang with economic espionage. The former Hydro-Québec researcher is accused of obtaining trade secrets for the benefit of China.
“I think we may see this offence used more frequently, given [the] threats to our economic security on which the government is now focused with quite a degree of precision,” said House.
“It’s great that it is in the arsenal of the Crown prosecutors.”
West said Ortis’s trial will be “a test case to see if our current legislative framework around the protection of evidence, and the protection of open court and what discretion that judge has — if it can all actually work in a trial for espionage.
“What do you do with a jury who accidentally hear confidential information? Just ask them really nicely to not share it? It’s all interesting.”
West said she will be watching to see how the judge “is going to thread the needle between” protecting the open court principle and shielding state secrets.
“This is a complicated task,” she said.
SOIA and foreign interference leaks
The Security of Information Act has also been raised in relation to the unnamed security official who leaked sensitive information to the media about attempts by China’s government to interfere in Canadian politics.
Starting in late 2022, a series of articles appearing in Global News and the Globe and Mail described alleged Chinese foreign interference in Canadian elections. In some cases, the reports were based on leaked top-secret intelligence. The Globe and Mail eventually published a piece written by a national security source who provided information to the paper.
Jody Thomas, the prime minister’s national security and intelligence adviser, said she expects the leaker will be caught and punished.
“The law has been broken. Sources, techniques have been put at risk. Our credibility with Five Eyes allies has been put at risk,” she said earlier this year.
In an open letter in the Globe and Mail, the unidentified leaker defended their actions, saying the federal government was not heeding calls to act on allegations of foreign interference.
Controversy
Parts of the act were deemed unconstitutional in 2006 by the Ontario Superior Court after Mounties raided a reporter’s home.
In 2004, the RCMP combed through Ottawa Citizen reporter Juliet O’Neill’s home and office in an attempt to find the source of her information about the Maher Arar affair after O’Neill ran a story offering details of what Arar allegedly told his Syrian captors. The story cited a “security source” and a leaked document.
Arar, a Canadian-Syrian telecommunications engineer who had been living in Ottawa, was detained at a New York airport in 2002. He spent months behind bars in Damascus after being deported to his Syrian birthplace by U.S. authorities.
O’Neill’s legal team argued the Security of Information Act provisions used to obtain the RCMP search warrants violated the Charter of Rights and Freedoms.
In her decision, Justice Lynn Ratushny struck down Section 4 of the Security of Information Act as “unconstitutionally vague” and an infringement of freedom of expression.
The Conservative government of the day did not challenge Ratushny’s ruling.
House said the Ortis trial could raise questions about whether the act needs to be updated.
“People are increasingly interested in the use of the act,” he said. “I think this is an act that we as a country are getting to know.”
