Canada (Attorney General) v. Ortis
- Citation
- 2023 FC 1361
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Federal Court
- Decision
- 12 October 2023
- Posture
- Section 38.04 Canada Evidence Act Application to Confirm Non Disclosure of Sensitive Information / Pre Trial Judicial Determination of Disclosure Claims; Interlocutory Order Prior to Criminal Trial
- Language
- English
More details
- Court
- Federal Court
- Decision
- 12 October 2023
- Posture
- Section 38.04 Canada Evidence Act Application to Confirm Non Disclosure of Sensitive Information / Pre Trial Judicial Determination of Disclosure Claims; Interlocutory Order Prior to Criminal Trial
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Applying the established principles from the earlier Ortis decisions and reviewing the in camera material, the Court concluded that the Attorney General satisfied the statutory threshold under s.38 such that the prohibition on disclosure of the remaining information identified in its notices is confirmed pursuant to s.38.06(3); exclusions noted for material relating to counts 5–8 and uncontested s.37 claims which were not litigated.
Court disposition
Prohibition on disclosure of the remaining information identified in the Attorney General's notices confirmed pursuant to subsection 38.06(3) of the Canada Evidence Act; publication of these reasons and related material prohibited until conclusion of the criminal trial.
Orders
- Pursuant to subsection 38.06(3) CEA, the prohibition on disclosure with respect to the remaining information identified in notices filed by the Attorney General of Canada is confirmed.
- This Order and Reasons shall not be published in any document, or broadcast or transmitted in any way before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded.
- The foregoing non-publication restriction does not apply to filing this Order and Reasons or any part thereof at the Ontario Superior Court of Justice.
- Subject to further Order of the Court, the Registry shall not make this Order and Reasons available to any member of the public before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded.
02
Material facts
Parties
The Attorney General of Canada
Applicant Counsel: Andre Seguin, Elizabeth RichardsCameron Jay Ortis
Respondent Counsel: Jon DoodyDirector of Public Prosecutions
Respondent Counsel: Judy Kliewer, John MacFarlane03
Procedural history
Posture
Section 38.04 Canada Evidence Act Application to Confirm Non Disclosure of Sensitive Information / Pre Trial Judicial Determination of Disclosure Claims; Interlocutory Order Prior to Criminal Trial
04
Questions and positions
Legal issues
- 01
Whether the Attorney General met the statutory threshold to confirm a prohibition on disclosure under section 38 of the Canada Evidence Act for the remaining information identified in its notices
- 02
Whether any remaining material falls outside the prohibition because of competing rights or because claims overlap with section 37
- 03
Whether publication of the reasons should be delayed until conclusion of the related criminal trial
Party arguments
- Applicant
- The Attorney General sought confirmation under s.38.04 (and order under s.38.06(3)) that specified Crown disclosure and defence-summary material was sensitive or potentially injurious and that its disclosure would be injurious to international relations, national defence or national security, warranting continued redaction and a prohibition on disclosure.
- Respondent
- The defence (and amici) sought disclosure to safeguard the accused's fair-trial rights and challenged overbroad redactions in earlier proceedings; however, the amici did not contest the redactions over the remaining information addressed in this order and some claims involving s.37 were not litigated because they were uncontested.
05
Court’s reasoning
Legal principles
- 01
Canada Evidence Act, RSC 1985, c C-5, ss.37-38.06
The statutory scheme in s.38 of the Canada Evidence Act permits non-disclosure of information that is sensitive or potentially injurious and injurious to international relations, national defence or national security
- 02
Canada (Attorney General) v. Ortis decisions and established Federal Court jurisprudence (see Ortis 2021 FC 737; Ortis 2022 FC 142; Ortis 2022 FC 477; Ortis 2022 FC 617; Ortis 2023 FC 1172)
The Attorney General bears the onus to justify non-disclosure claims under s.38 on the material filed in camera; the court must review and apply the established principles but affords appropriate deference on national security matters
- 03
Canada Evidence Act, RSC 1985, c C-5, s.38.06(3); Canada (Attorney General) v. Ortis, 2021 FC 737
Orders under s.38.06(3) may be made to confirm prohibition on disclosure; concomitant publication bans may be imposed to protect the material until related criminal proceedings conclude
06
Ratio, limits and disposition
Ratio decidendi
Applying the established principles from the earlier Ortis decisions and reviewing the in camera material, the Court concluded that the Attorney General satisfied the statutory threshold under s.38 such that the prohibition on disclosure of the remaining information identified in its notices is confirmed pursuant to s.38.06(3); exclusions noted for material relating to counts 5–8 and uncontested s.37 claims which were not litigated.
Obiter and limits
- The amici curiae did not contest the redactions over the remaining information, which informed the Court's handling of those items.
- The Court declined to restate governing principles set out in earlier orders, noting they govern this determination.
- Administrative directions limiting public access to these reasons and related materials remain appropriate until the criminal trial concludes.
Court disposition
Prohibition on disclosure of the remaining information identified in the Attorney General's notices confirmed pursuant to subsection 38.06(3) of the Canada Evidence Act; publication of these reasons and related material prohibited until conclusion of the criminal trial.
- Pursuant to subsection 38.06(3) CEA, the prohibition on disclosure with respect to the remaining information identified in notices filed by the Attorney General of Canada is confirmed.
- This Order and Reasons shall not be published in any document, or broadcast or transmitted in any way before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded.
- The foregoing non-publication restriction does not apply to filing this Order and Reasons or any part thereof at the Ontario Superior Court of Justice.
- Subject to further Order of the Court, the Registry shall not make this Order and Reasons available to any member of the public before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded.
Source and reliance status
Federal Court · 12 October 2023
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Federal Court
Judgment· 12 October 2023
Canada (Attorney General) v. Ortis Court (s) Database Federal Court Decisions Date 2023-10-12 Neutral citation 2023 FC 1361 File numbers DES-5-20 Decision Content
SUBJECT TO A PUBLICATION BAN Date: 20231012 Docket: DES-5-20 Citation: 2023 FC 1361 Ottawa, Ontario, October 12, 2023 PRESENT: Mr. Justice Norris BETWEEN:
THE ATTORNEY GENERAL OF CANADA Applicant and
CAMERON JAY ORTIS Respondent and
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
ORDER AND REASONS [1] Cameron Jay Ortis is a former civilian member of the Royal Canadian Mounted Police who has been charged with offences under the Security of Information Act, RSC 1985, c O-5, and the Criminal Code, RSC 1985, c C-46. [2] Crown disclosure provided to Mr. Ortis was redacted to protect certain information on the basis that it is sensitive or potentially injurious information as this is defined in section 38 of the Canada Evidence Act, RSC 1985, c C-5 (“CEA”). The Attorney General of Canada (AGC) then applied under section 38.04 of the CEA for an order confirming the prohibition on disclosure of information on the basis that its release would be injurious to international relations, national defence or national security. [3] The Court’s adjudication of the AGC’s section 38 claims over information in Crown disclosure as well as information in defence summaries has proceeded in stages: see Canada (Attorney General) v Ortis, 2022 FC 142; Canada (Attorney General) v Ortis, 2022 FC 477; Canada (Attorney General) v Ortis, 2022 FC 617; and Canada (Attorney General) v Ortis, 2023 FC 1172 (Ortis 2023). [4] The governing legal principles are set out in these earlier Orders and Reasons. There is no need to repeat them here. [5] Applying these principles, and subject to paragraph 6, below, I am satisfied that the prohibition on disclosure of all remaining information
identified in the notices filed by the AGC but which has not yet been dealt with by the Court should be confirmed. I note that the amici curiae who were appointed to assist the Court in this matter did not contest the redactions over any of this remaining information. [6] For greater certainty, this Order does not include the information relevant to counts 5 to 8 in the indictment dated March 10, 2020, referred to in paragraph 6 of Ortis 2023. Nor does it include any information over which claims were made under both section 37 and section 38 of the CEA. Since these section 37 claims were not contested, it was not necessary to address the underlying section 38 claims. ORDER IN DES-5-20 THIS COURT ORDERS that Pursuant to subsection 38.06(3) of the Canada Evidence Act, the prohibition on disclosure with respect to the remaining information identified in notices filed by the Attorney General of Canada is confirmed. For the reasons stated in Canada (Attorney General) v Ortis, 2021 FC 737, this Order and Reasons shall not be published in any document, or broadcast or transmitted in any way before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded. For greater certainty, the foregoing term does not apply to the filing of this Order and Reasons or any part thereof at the Ontario Superior Court of Justice. Subject to further Order of the Court, the Registry shall not make this Order and Reasons available to any member of the public before the criminal trial of Cameron Jay Ortis in the Ontario Superior Court of Justice has concluded. “John Norris” Judge
FEDERAL COURT
SOLICITORS OF RECORD DOCKET: DES-5-20 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v CAMERON JAY ORTIS ET AL PUBLIC HEARING DATES: September 20, 21, 2021 Ex parte in camera HEARING DATES: October 4, 5, 6, 21, 2021 November 2, 3, 2021 December 1, 2, 3, 13, 2021 January 20, 21, 2022 ORDER AND REASONS: NORRIS J. DATED: OCTOBER 12, 2023 APPEARANCES: Andre Seguin Elizabeth Richards For The Applicant Jon Doody For The Respondent, CAMERON JAY ORTIS Judy Kliewer John MacFarlane For The Respondent, DIRECTOR OF PUBLIC PROSECUTIONS Howard Krongold AMICus CURIAE SOLICITORS OF RECORD: Attorney General of Canada Toronto, Ontario For The Applicant Bayne, Sellar, Ertel, Carter Ottawa, Ontario For The Respondent, CAMERON JAY ORTIS Public Prosecution Service of Canada Ottawa, Ontario For The Respondent, DIRECTOR OF PUBLIC PROSECUTIONS Howard Krongold Ottawa, Ontario AMICUs CURIAE
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