In 1977, the Toronto Globe and Mail newspaper reported:
M.D.'s Worried Scientologists Breaking Law: The College of Physicians and Surgeons of Ontario will be asked to investigate whether members of the Church of Scientology had been practising medicine without a licence. The Ontario Medical Association Counsel said yesterday some of its psychiatrist members were concerned when told Scientologists had been offering passers-by on Avenue Road personality tests. The psychiatrists felt this constituted practicising medicine without a license.
The Church of Scientology of Toronto then sued the Globe & Mail for libel and slander. While a non-profit corporation can sue for libel, its right depends on whether, as a corporate body, it can exercise the function which it claims was libeled. The decision of the High Court of Justice, reported in volume 19 of _Ontario Reports_, pages 62-66, was that the corporation could not practice medicine (members could, the corporation could not), and so the statement of claim was struck out, and Scientology lost the case.
The Church of Scientology decided to infiltrate the offices of the Ontario Medical Association, and in 1985, after three years of pretrial motions, a woman was convicted of stealing documents from the OMA at the Church's behest. Here is an article from the Toronto Sun newspaper, dated December 15, 1985:
Church used her to spy: A woman who was "pressured into crime" by leaders of the Church of Scientology has been given an absolute discharge in provincial court. Nanna Anderson, 39, of Scadding Court, pleaded guilty to possession of documents belonging to the Ontario Medical Association knowing that they had been stolen. The offence occurred between November 1976 and March 1983. Judge Lorenzo DiCecco granted the woman an absolute discharge, stating she had suffered enough. Crown attorney John Pearson had told the court the woman was "pressured into crime by senior representatives of the Church of Scientology of Toronto." Anderson, who worked for the OMA, admitted taking the documents and giving them to a Scientology member to be photocopied and then returning the file. Anderson said she was asked to get a file with more "meat" in it, but did not comply with the request. Often testifying in tears, Anderson testified on "15 years of unbelievable stories" during her association with the Church of Scientology, beginning when she was 17. In 1979, she said, a doctor who was a member of the church led her to believe she had cancer and asked her to obtain funds from her relatives for medical treatment. She alleged 10% of the money would have gone to him. After moving to Canada from England, Pearson said she did not work for the church initially. But the church representatives approached her through her husband, a church member, and reminded her she had signed a long-term contract while living in England. She was hired by the OMA and church representatives said they were interested in obtaining information from the OMA because the association was looking into whether the Church was practising medicine. While Anderson was employed at the OMA, she received a letter from Herbert Parkhouse, a senior official of the church in England thanking her for the work she was doing, court heard. Anderson said she divorced her first husband in England in 1974 because Parkhouse had said he was "bad for me." She said she wed Paul Anderson because Parkhouse said Anderson wanted to marry her. "If they said march, I would march."
On March 1st, 1983, a Sergeant from the Ontario Provincial Police [O.P.P.] Anti-Rackets Branch swore an information before His Honour Chief Justice F. Hayes of the Provincial Court (Criminal Division) to obtain a warrant to search the premises of The Church of Scientology of Toronto [hereafter referred to as "Scientology"]. The information had a total length of more than 1,000 pages, including several appendices. On the same day, Chief Judge Hayes issued a warrant authorizing a search of the premises on March 3rd and 4th.
The information presented to Judge Hayes proposed three allegations of criminality:
Count 1 [tax fraud]:
... that he has reasonable grounds to believe that the above described things to be searched for will afford evidence in respect to the commission of offences against the Criminal Code of Canada, to wit: that L. Ron HUBBARD, Mary Sue HUBBARD, CHURCH OF SCIENTOLOGY of Toronto and Garry JEPSON (President), Dan CROCINI (Secretary), Arnelle PEARSE (Treasurer), Kathy WHITMORE (Past Secretary), and others unlawfully did between January 1, 1976 and February 15, 1983 at the City of Toronto, in the Judicial District of York and elsewhere in Canada commit an indictable offence, to wit: by deceit, falsehood or other fraudulent means did defraud Her Majesty the Queen in Right of the Province of Ontario (Province of Ontario, Ministry of Revenue) and Her Majesty the Queen in Right of Canada (Government of Canada, Department of National Revenue, Taxation) of money, property, valuable securities of a value exceeding $200.00 by representing to those officials responsible for registration of non-profit corporations under the Corporations Tax Act of Ontario and the Income Tax Act of Canada that SCIENTOLOGY was a non-profit organization, collecting "donations" from its members, without distribution of profit to any of its proprietors or members thereby obtaining non-profit status and exemption from corporate taxes otherwise payable while said SCIENTOLOGY in fact distributed and paid monies or profits raised by the Church of Scientology to the personal use of L. Ronald HUBBARD, Mary Sue HUBBARD and other members of the Church of Scientology, such profits arising from the sale of courses and other materials, contary to Section 338(1)(a) of the Criminal Code of Canada.
Count 2 [fraud]:
and further that L. Ron HUBBARD, Mary Sue HUBBARD, CHURCH OF SCIENTOLOGY of Toronto, Gerry JEPSON (President), Dan CROCINI (Secretary), Arnelle PEARSE (Treasurer), Kathy WHITMORE (Past Secretary) and others unlawfully did between January 1, 1976 and February 15, 1983 at the City of Toronto, in the Judicial District of York and elsewhere in Canada, commit an indictable offence, to wit: did defraud the public, more specifically persons to whom Scientology made representations concerning the qualities of and benefits receivable from, courses, including the Purification Rundown, and from E-Meters, for sale at costly prices in no way related to the real value of such things, such things being without the represented benefits, thus by deceit, falsehood or other fraudulent means defrauding such persons of money, property or valuable security of a value exceeding $200.00 contary to Section 338(1)(a) of the Criminal Code of Canada.
Count 3 [conspiracy]:
And further that L. Ron HUBBARD, Mary Sue HUBBARD, CHURCH OF SCIENTOLOGY of Toronto, Hilarie ROCKL, Scott CARMICHAEL, Harvey SHMIEDEKE, Nicole CRELLIN, Marion EVOY, William O'MEARA, Gerry JEPSON, Dan CROCINI, Arnelle PEARSE, and others unlawfully did between January 1, 1972 and February 15, 1983 at Toronto, in the Judicial District of York and elsewhere in Canada, commit an indictable offence, to wit: did conspire together and with other persons to effect a lawful purpose, the operation of Scientology-owned and controlled companies and organizations, by unlawful means, to wit: the use of the GUARDIAN OFFICE OF SCIENTOLOGY to commit indictable offences, including theft and break, enter and theft, when perceived necessary by the said persons to protect the interests of Scientology contary to Section 423(2)(b) of the Criminal Code of Canada.
On March 3rd, an additional information was sworn before Justice of the Peace A. Kosteka, to obtain a warrant to search the premises of Michael P. Zaharia. The warrant was issued the same day.
The search warrants were executed by officers of the O.P.P. together with forensic accountants and accountants of the Federal Department of Revenue. The six floors of the Scientology premises were searched from 2:30 PM on March 3rd until 11:00 AM on March 4th. 129 OPP officers attended, with about 30 officers doing the actual searching. Some 850 boxes containing about 39,000 files and books, or about 2,000,000 documents, statements and tapes were removed.
The warrant to search Zaharia's house was executed on March 3rd, and two boxes of documents, records and correspondence were removed.
[Preceding: 2,000,000 documents seized in police raid of Scientology HQ]
On March 7th, Mr. Justice Linden ordered the "sealing" of all seized documents described as "Pre-clear folders" so as to preserve the status quo until such time as the question of the existence of a priest and penitent or confidential religious communication privilege was determined.
On December 1st, 1984, an information was sworn charging Scientology and a number of individuals with various criminal offences. Eventually 19 persons (Scientology + 18 individuals) were charged or summonsed. It is significant that the Church of Scientology of Toronto, as a corporate body, was charged with criminal acts.
An indictment for 11 of the persons charged follows. It shows that the following organizations were infiltrated or victimized by the Church of Scientology:
1. Fasken & Calvin [law firm].
2. Goodman & Goodman [law firm].
3. College of Physicians and Surgeons of Ontario [medical governing body].
4. Ontario Medical Association.
5. Canadian Mental Health Association.
6. Ontario Provincial Police.
7. Metropolitan Toronto Police.
8. Attorney General of Ontario.
9. Royal Canadian Mounted Police.
Persons named but not charged in this indictment:
Cynthia Bake, Donna Lee Cavanaugh, Jaqueline Dianne Carmichael, John Bradley, Kathleen Lepp, Marilyn Linda Belaire, Michael Symington, Nancy Troiani, Nanna Krogh Anderson, Susan Leah Lemieux.
NOTE: Part 4 of this series on Scientology in Toronto will deal with the disposition of these charges. There were some "not guilty" verdicts.
------------------------------------------------------------------------ ONTARIO COURT (GENERAL DIVISION) THE QUEEN v. CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ, PAUL FRANCOIS CHARBONNEAU, JANET ELSIE WILKENS, ANNE MARIE WALSH, CLARA ANNE SCHNEIDER, ERNEST LEHMANN, MARILYN LINDA BELAIRE, JAAN JOOT, JANICE WHEELER and DONALD BRYAN WHITMORE Theft Over : Theft Under : Breach of Trust : ------------------------------------------------------------------------ I N D I C T M E N T ------------------------------------------------------------------------ IN THE ONTARIO COURT (GENERAL DIVISION) CANADA ) HER MAJESTY THE QUEEN ) PROVINCE OF ONTARIO ) - against - ) TORONTO REGION ) CHURCH OF SCIENTOLOGY OF ) TORONTO, JAQUELINE MATZ, ) PAUL FRANCOIS CHARBONNEAU, ) JANET ELSIE WILKENS, ANNE ) MARIE WALSH, CLARA ANNE ) SCHNEIDER, ERNEST LEHMANN, ) MARILYN LINDA BELAIRE, JAAN ) JOOT, JANICE WHEELER and ) DONALD BRYAN WHITMORE (1) CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ, PAUL FRANCOIS CHARBONNEAU, JANET ELSIE WILKENS and ANNE MARIE WALSH STAND CHARGED THAT they, within the period commencing on or about the 11th day of February, 1975 and ending on or about the 2nd day of September, 1977, at the Municipality of Metropolitan Toronto, did steal documents, the property of the law firm of Fasken & Calvin, Barristers and Solicitors, of a value exceeding $200.00, contrary to s.294(a) of the Criminal Code; (2) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO and JACQUELINE MATZ STAND CHARGED THAT they, together with NANCY TROIANI, within the period commencing on or about the 27th day of December 1976 and ending on or about the 6th day of January, 1978, at the Municipality of Metropolitan Toronto, did steal documents, the property of the law firm of Goodman & Goodman, Barristers and Solicitors, of a value exceeding $200.00, contrary to s.294(a) of the Criminal Code; (3) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO, JACQUELINE MATZ, CLARA ANNE SCHNEIDER and ERNEST LEHMANN STAND CHARGED THAT they, within the period commencing on or about the 26th day of January, 1976 and ending on or about the 31st day of August, 1978, at the Municipality of Metropolitan Toronto, did steal documents, the property of the College of Physicians and Surgeons of Ontario, of a value exceeding $200.00, contrary to s.294(a) of the Criminal Code; (4) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO STANDS CHARGED THAT it, together with NANNA KROGH ANDERSON, within the period commencing on or about the 1st day of November, 1976 and ending on or about the 29th day of June, 1978, at the Municipality of Metropolitan Toronto, did steal documents, the property of the Ontario Medical Association, of a value exceeding $200.00, contrary to s.294(a) of the Criminal Code; (5) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO and JAQUELINE MATZ STAND CHARGED THAT they, together with KATHLEEN LEPP, SUSAN LEAH LEMIEUX and MICHAEL SYMINGTON, within the period commencing on or about the 29th day of July, 1974 and ending on or about the 19th day of March, 1976, at the Municipality of Metropolitan Toronto, did steal documents, the property of the Canadian Mental Health Association, of a value not exceeding $200.00, contrary to s.294(b) of the Criminal Code; (6) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO and JAQUELINE MATZ STAND CHARGED THAT they, together with DONNA LEE CAVANAUGH, an official employed by the Ontario Provincial Police, within the period commencing on or about the 21st day of May, 1974 and ending on or about the 12th day of May, 1975, at the Municipality of Metropolitan Toronto, unlawfully did commit a breach of trust, in connection with the duties of the office held by DONNA LEE CAVANAUGH, in that the latter disclosed to unauthorized persons information coming to her knowledge or possession by reason of her office, contrary to s.111 of the Criminal Code; (7) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO and JAQUELINE MATZ STAND CHARGED THAT they, together with CYNTHIA BAKE, an official employed by the Ontario Provincial Police, within the period commencing on or about the 31st day of May, 1976 and ending on or about the 12th day of November, 1976, at the Municipality of Metropolitan Toronto, unlawfully did commit a breach of trust in connection with the duties of the office held by CYNTHIA BAKE, in that the latter disclosed to unauthorized persons information coming to her knowledge or possession by reason of her office, contary to s.111 of the Criminal Code; (8) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ and MARILYN LINDA BELAIRE STAND CHARGED THAT they, together with JOHN BRADLEY, within the period commencing on or about the 28th day of February, 1976, at the Municipality of Metropolitan Toronto, did steal documents relating to the investigation conducted by the Metropolitan Toronto Police into the activities of Church of Scientology of Toronto, the property of the Metropolitan Toronto Police, of a value exceeding $200.00, contary to s.294(a) of the Criminal Code; (9) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ and MARILYN LINDA BELAIRE, an official employed by the Metropolitan Toronto Police, STAND CHARGED THAT they, together with JOHN BRADLEY, within the period commencing on or about the 23rd day of July, 1974 and ending on or about the 28th day of February, 1976, at the Municipality of Metropolitan Toronto, unlawfully did commit a breach of trust in connection with the duties of the office held by MARILYN LINDA BELAIRE, in that the latter disclosed to unauthorized persons information coming to her knowledge or possession by reason of her office, contary to s.111 of the Criminal Code; (10) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ, JAAN JOOT and JANICE WHEELER STAND CHARGED THAT they, within the period commencing on or about the 25th day of April, 1974 and ending on or about the 11th day of July, 1975, at the Municipality of Metropolitan Toronto, did steal documents, the property of the Ministry of the Attorney General for the Province of Ontario, of a value exceeding $200.00, contary to s.294(a) of the Criminal Code; (11) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO, JAQUELINE MATZ, JAAN JOOT and JANICE WHEELER, an official employed by the Ministry of the Attorney General for the Province of Ontario, STAND CHARGED THAT they, within the period commencing on or about the 25th day of April, 1974 and ending on or about the 11th day of July, 1975, at the Municipality of Metropolitan Toronto, unlawfully did commit a breach of trust in connection with the duties of the office held by JANICE WHEELER, in that the latter disclosed to unauthorized persons information coming to her knowledge or possession by reason of her office, contrary to s.111 of the Criminal Code. (12) AND FURTHER, CHURCH OF SCIENTOLOGY OF TORONTO and DONALD BRYAN WHITMORE, an official employed by the Royal Canadian Mounted Police, STAND CHARGED THAT they, together with JAQUELINE DIANNE CARMICHAEL, within the period commencing on or about the 27th day of November, 1976, at the City of Ottawa in the Judicial District of Ottawa-Carleton and elsewhere in the Province of Ontario, unlawfully did commit a breach of trust in connection with the duties of the office held by DONALD BRYAN WHITMORE, in that the latter disclosed to unauthorized persons information coming to his knowledge or possession by reason of his office, contrary to s.111 of the Criminal Code. Pursuant to Section 574 of the Crminal Code, I hereby prefer Counts 1 to 11 of this Indictment in the Ontario Court (General Division), and, pursuant to Section 577 of the Criminal Code, I consent to the preferment of Count 12 of this Indictment, and hereby prefer Count 12 in the Ontario Court (General Division). DATED at Toronto, this 8th day of February, 1991. (signed) HOWARD HAMPTON Attorney General for the Province of Ontario
[Preceding: Scientology charged with 12 counts of theft and breach of trust]
I'm going to skip ahead to the trial on the 12 charges of the indictment, for two reasons: first, it is only fair to the persons declared not guilty, and second, the verdicts refer to the charges, so they should be in proximity.
The 11 defendants were committed for trial in 1990, but due to extensive legal arguments, the trial only began in April, 1992. For example, the defence objected because the jury was selected by computer. They said the juror ballots should be scrambled and chosen by hand. The judge ruled that a computer is a modern ballot box (that is, a container from which juror ballots are selected). The defence objected because there were no veterinarians on the jury. And so on.
All accused pleaded not guilty to all charges.
The trial lasted two months. With adjournments, it ended on June 25th, 1992. The most important ruling during the trial concerned the evidence to be used in support of the charges of theft of documents. Mr. Justice James Southey ruled that all of this evidence was protected as "confessional materials". The prosecution is appealing this ruling. Following Judge Southey's ruling, the prosecutor told the jury there was insufficient evidence to make a case, so there was a directed verdict of not guilty on the theft charges.
On the breach of trust charges, the defense admitted the spying, but claimed that it had been done without the knowledge of church officials by former members of the church who were testifying for the Crown (i.e. the prosecution) in exchange for immunity from prosecution. In addition to these witnesses, the trial heard from a female Ontario Provincial Police officer who had worked undercover for three years as a Scientologist, partly in the Guardian's Office. This undercover operation began after Ontario Government papers were found by the FBI in its raid on the Scientology headquarters in Los Angeles.
On charges numbered 1, 2, 3, 4, 5, 8, and 10, there was a directed
verdict of not guilty, due to inadmissibility of evidence. These
are the theft charges.
The Church of Scientology of Toronto was found not guilty on charges
#6 (breach of trust, O.P.P.), #9 (breach of trust, Toronto Police),
and #12 (breach of trust, R.C.M.P.).
Jaqueline Matz was found not guilty on charges #6 and #9.
Marilyn Linda Belaire was found not guilty on charge #9.
Jaan Joot was found not guilty on charge #11 (breach of trust,
Attorney General of Ontario).
The Church of Scientology of Toronto was found guilty on charges
#7 (breach of trust, O.P.P.), and #11 (breach of trust, Attorney
Jaqueline Matz was found guilty on charges #7 and #11.
Janice Wheeler was found guilty on charge #11.
Wheeler had sent copies of secret documents from the office of the
Attorney General of Ontario to the Guardian's Office, and allowed a
member of that office to go through ministry files in an
unsuccessful attempt to find a file on Scientology.
Donald Bryan Whitmore was found guilty on charge #12 (R.C.M.P.).
Whitmore was a Scientology plant who memorized information from
Sentences were pronounced on September 11th, 1992.
The Church of Scientology of Toronto was fined $100,000 on count #7,
and $150,000 on count #11.
Jaqueline Matz was fined $2500 on count #7 and $2500 on count #11,
with 60 days imprisonment if she defaults.
Janice Wheeler was fined $2000 or 30 days on count #11.
Donald Bryan Whitmore was fined $2000 on count #12.
The Church of Scientology of Toronto had statements documents to the court showing that its liabilities exceed its assets, and argued that it should receive only a nominal fine. Judge Southey rejected this argument, and also rejected a prosecution request that the fine be at least $1 million. He suggested that since the "mother" church in California had contributed to the $7 million cost of fighting the criminal charges through interest-free loans, they could pay a portion of the fine. He noted that the Church in Toronto is governed by three appointed directors, over whom the 7,000 parishoners have no control.
The judge rejected the contention that the church had shown remorse for its role, and suggested that in reality there was a continuing attempt to blame individuals within the church for illegal activities that had been carried out at the direction of senior Scientology officials. Meanwhile, outside the court, church officials distributed pre-printed statements declaring the sentence "an outrage and miscarriage of justice."
Judge Southey also said he was satisfied that the British-based Guardian's Office World Wide was "subject to the control of founder L. Ron Hubbard and his wife, Mary Sue Hubbard. He said that a heavy fine was necessary to deter any organization from placing "plants" in law-enforcement agencies.
Both Prosecution and Defence are appealing.
In reporting on the sentencing, I have liberally paraphrased from an article in the Toronto Globe and Mail by Thomas Claridge: "Church of Scientology fined $250,000 for espionage" (Sept. 12, 1992, page 1).
Canada's Largest Libel Award
After the police raid on its headquarters in Toronto, the Church of Scientology decided to destroy the reputation of Casey Hill, the Crown Attorney who was preparing the case for the prosecution. False allegations of contempt of court were prepared. Appearing on the steps of Osgoode Hall (Appeal Court) in his barrister's robes, lawyer Morris Manning announced to a press conference that his client, the Church of Scientology, was bringing contempt charges against Hill for allegedly misleading a judge and breaching a court order sealing seized documents.
The contempt charges were later dismissed by a judge, and Hill sued the church for libel. Hill's lawyers met with the church's lawyers before the libel trial and offered to settle for $50,000, but the church refused. The jury trial ending October 3rd, 1991 awarded general damages of $300,000 against Scientology and lawyer Morris Manning. The jury also awarded $500,000 in aggravated damages against Scientology, and a further $800,000 in punitive damages against Scientology, for a total of $1.6 million.
The Church of Scientology appealed the size of the award, and on March 11th, 1992, Mr. Justice Douglas Carruthers decided that the church should pay pre-judgement interest at the rate of 10% since 1985, effectively adding $500,000 more to the award. He also issued a permanent injunction against church officials from making defamatory statements about Hill.
When a lawyer for Mr. Hill, Robert Armstrong, attempted to collect, he found that the Church's offices, with an appraised value of $6 million, had been mortgaged to the Church of Scientology of California within weeks of the judgement. The cash from the mortgages had ostenstibly been used to pay legal fees. A payment of $3.1 million was shown to the law firm of Clayton Ruby, although $2.1 million of that was not owed at that time.
Armstrong asserted that the church's property was essentially debt-free before the trial, but within weeks it had three mortgages registered against it for $10 million.
The Church appealed to the Ontario Court of Appeal and in a unanimous judgement on May 10, 1994, the court found in favour of Mr. Hill. The three-judge panel was severely critical of the church's conduct, calling it "character assassination" and noting that Scientology kept an internal file on Hill, identifying him as "Enemy Canada" - a category reserved for the vilest individuals.
"Scientology decided that Casey Hill was the enemy and it set out to destroy him", the court said in its 129 page judgement. "It levelled false charges against him. It prosecuted him on those charges ... In summary, the evidence suggests that Scientology set upon a persistent course of character assassination over a period of seven years with the intention of destroying Casey Hill."
Although the church knew within 10 days of the Osgoode Hall news conference that some of its allegations were untrue, it continued to defend them as justified right up to the start of the appeal.
Mr. Justice W. David Griffiths wrote that the appeal court had reviewed the evidence and found that it was sufficient to find "malice and egregious conduct on the part of Scientology". The malice alone was sufficient to merit the punitive damage award, the judgement said, and "what seemed to be of overriding importance was the need for specific deterrence of Scientology to prevent it from repeating its libel."
Scientology was not easily deterred, the appeal court judges said. It not only published the libel when there was no evidence to support the allegations but continued its unfounded proceedings against Mr. Hill when it knew the principal allegation was untrue. It also made allegations that it knew were untrue in documents it submitted to court.
As we have seen in part 2 of this series, Ontario Provincial Police (O.P.P.) conducted raids on the headquarters of the Toronto Church of Scientology, and on the premises of Michael P. Zaharia, on March 3rd and 4th, 1983. The police had a search warrant with a 9 1/2 page list of items to be seized. The types of files to be seized were:
1. Central Files;
2. Guardian Office Staff Members Pre-Clear and Clear Folders;
3. Bulk Files;
4. Staff Personnel Files;
5. Ethics Folders;
6. Flag Operations Liason Office (FOLO) Files;
7. Guardian Office Toronto Files;
8. Guardian Office Canada Files;
9. Treasury Files;
10. LRH Communication Files;
11. Continental Publications Liason Office (CPLO) Canada Files.
In addition, books, devices, sales journals, and 57 named publications were to be seized. Some 2 million documents were seized in all. It later developed that the O.P.P. had found that the Guardian's Office was instituting new procedures for destruction of documents in the event of a police raid, and so the timing of the raid had been accelerated somewhat.
An important factor in the legal arguments to follow was that Canada's Constitution Act, including the Charter of Rights and Freedoms (comparable to the U.S. Bill of Rights) had been passed and proclaimed into law in 1982.
On March 4th and April 5th, 1983, Scientology and Zaharia filed motions in the Supreme Court of Ontario to quash the search warrants. A "return" was made to Justice of the Peace Kostecka on March 7th, and Mr. Kostecka signed orders requiring the detention of the seized items for 3 months. On the same day, Mr. Justice Linden ordered the "sealing" of pre-clear folders, until the question of the possible existence of priest-penitent privilege could be determined in court.
On June 2nd, 1983, at the request of the O.P.P., Mr. Kostecka ordered an extension of the period of detention for a further one year and six months. These orders of March 7th and June 2nd were made _ex parte_, although counsel for Scientology had sought to be present.
Hearings on the motions to quash commenced June 4th, 1984, before Judge Osler of Motions Court (Ontario High Court of Justice). These hearings were closely watched by human rights and criminal law reporters. Several important rulings were made:
1. Re Church of Scientology and the Queen. Reported in Candian Criminal Cases (C.C.C.) vol. 13, p. 93. 2. Re Church of Scientology and the Queen. 13 C.C.C. 97. 3. Re Church of Scientology and the Queen. 15 C.C.C. 190. 3A. (Addendum) Re Church of Scientology and the Queen. 13 C.C.C. 353. 4. Re Church of Scientology and the Queen. 17 C.C.C. 489. 5. Re Church of Scientology and the Queen. 18 C.C.C. 244. 6. Re Church of Scientology et al. and the Queen. 21 C.C.C. 147. 7. R. v. Zaharia and Church of Scientology of Toronto. 21 C.C.C. 118.
On December 1st, 1984, Scientology and a number of individuals were charged with various criminal offences. On January 8th, 1985, Mr. Justice Osler ordered that the seized materials remain in the custody of the O.P.P. pending the conclusion of the proceedings before him.
Scientology attacked the three proposed charges which were presented in the sworn information in support of the application for a search warrant. Briefly, they stated that the applicant had reason to believe that the named persons had committed: 1) tax fraud, 2) fraud [sale of e-meters, etc.], and 3) conspiracy [to steal documents].
On charge #1, Scientology showed that there was a defect, in that Scientology was a non-profit corporation but not a charity, and thus had no obligation to register as such. Court ruled that the applicant's submissions were a statement of defence, but an application of certiorari to quash a warrant must deal only with matters of jurisdiction or with allegations of fraud in the application for the warrant.
On charge #2, Scientology claimed that the use of e-meters and other practices alleged was in fact a religious practice. They stated that is is impossible to prove a religion correct or incorrect, and they cited article 2(a) of the _Charter_ and other precedents in support of their claimed rights. It is a spiritual issue, Scientology claimed, and is non-justiciable. Judge Osler noted, "Whatever spiritual benefits the artifacts and teachings referred to may confer, the Crown states that the material benefits receivable are not as represented or are not worth the moneys received for their sale, and that if this be so these things are evidence of fraud." Again, the submissions of the applicant could be used for defence, but not in an application to quash. 
On charge #3, Scientology submitted that there were not sufficient particulars given about the alleged offence, and thus the charge referred to "no offence known to law". The court ruled against Scientology on this.
Scientology also challenged the warrants on the grounds that documents were taken which were of a legally privileged nature. The pre-clear folders were describes as "pastoral counselling" notes, and thus it was claimed that they were privileged "priest-penitent" communications. Also, files had been seized from the Guardian's Office legal bureau, and these, it was asserted, were privileged "solicitor-client" communications.
Judge Osler ruled that there does not exist, either at common law, or by virtue of the _Charter_, a privilege which attaches to the communications between a religious authority and a member of his religious community. He wrote, "In this jurisdiction the almost universal practice has been to state, or to assume, that no privilege exists, but in a pragmatic way to press counsel not to pursue questions that would result in compelling a priest or minister of religion to breach a confidence, or to decline to compel persons claiming such a privilege to answer." 
With respect to solicitor-client privilege, the court heard from Scientologist George Matz who, although not legally trained, was Deputy Guardian, Legal, for Canada. He had been a member of the legal bureau from 1977 to 1982. Mr. Matz stated that the decisions regarding legal matters were made in England by the Deputy Guardian, Legal, Worldwide. This office was held by English barrister Charles Parselle, who shared an office with solicitor Steven Bird.
Mr. Matz was to supervise the gathering of necessary facts required in connection with pending or proposed litigation or other legal matters, and to submit these to Parselle with requests for advice or instructions for operations in Toronto or elsewhere in Canada.
[Note that Jaqueline Matz was accused of running a spy ring for the purpose of acquiring documents from government offices, and that she was eventually convicted of two counts of Breach of Trust.]
Judge Osler noted that "Any documents that would otherwise be privileged, which appear either by intrinsic or extrinsic evidence to have been prepared for an improper purpose, will, of course, lose any privilege that would otherwise have attached." 
Judge Osler examined some of the contended documents, and found that some were indeed privileged. He then appointed a retired judge, the Hon. Campbell Grant, as referee to sort through the remaining documents to determine which were privileged and which were simply irrelevant to the charges.
Scientology also objected to the warrants in that the information in support of the application contained "arcane language", that is, the special terminology of the Scientologists. Judge Osler ruled that much of this terminology was intelligible in context, and even if that which was obscure were to be eliminated, there was remained sufficient information to establish reasonable ground for a search.
Likewise, when Scientology objected that part of the O.P.P. affidavit consisted of personal opinion, Judge Osler noted that the 25 paragraphs neither "constitute anything like a screen which might obscure the factual material [for the issuing judge] ... nor are they a sieve through which he had to sift the factual material supplied." 
Scientology objected that much of the information relied upon by the O.P.P. was hearsay. Three principle sources of information were relied upon by the police, of whom two were said to be confidential sources. The police affidavit mentioned their former relationship with Scientology, which provided the opportunity for their knowledge, and their prior good character, which indicated the ground of credibility.
Judge Osler mentioned the "two-pronged" test used by the U.S. justice system, as laid down in "Aguilar v. Texas (1964), 378 U.S. 108", and "Spinelli v. United States (1969), 393 U.S. 410:. However, he noted that in "Illinois v. Gates (1983), 462 U.S. 213", the U.S. Supreme Court took a different approach. Quoting Mr. Justice Rehnquist:
"This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific 'tests' be satisfied by every informant's tip."
"... we consider it wiser to abandon the 'two-pronged test' established by our decisions in "Aguilar" and "Spinelli".
Judge Osler ruled that the information of the informants went to the weight of evidence, and it was not improper for the issuing judge to consider this information in making a decision about the search warrants.
Scientology objected to the warrants on the basis that they were allegedly vague and overly broad in the desription of items to be seized. It was alleged that the police "oversearched", which was said to prove the lack of particularity. Judge Osler pointed out that even if the police had exceeded their authority and oversearched, this "cannot retroactively affect the jurisdiction of Chief Judge Hayes to issue the warrant, and hence cannot in this proceeding justify me in quashing".
Scientology moved to cross examine the police sergeant who had sworn the original information. Judge Osler ruled "that before leave to cross-examine could be obtained, an allegation had to be made of deliberate falsehood or omission or reckless disregard for the truth..." Scientology did make such an allegation, and it took the highly unusual tactic of applying for the recusal of the Crown Attorney, Mr. Hill. Despite objections from Scientology, Judge Osler limited the scope cross-examination to specific areas involving the alleged falsehood or ommission. He then ruled that Scientology had failed to make its case.
Finally, the court considered the matter of the two _ex parte_ hearings of March 7th and June 2nd, 1984. Judge Osler wrote, "Although the judicial act of issuing a search warrant is properly performed _ex parte_, the need for secrecy vanishes with the execution of the search warrant."  Osler wrote, "... retention of documents is a mere extension of a seizure and is encompassed by s. 8 of the Charter." [This section says, "Everyone has the right to be secure against unreasonable search or seizure."] Therefore, he concluded that, "Both _ex parte_ orders for retention were unlawfully made..." Judge Osler also re-interpreted the word "shall" in s. 446(1) of the Criminal Code [which is now re-numbered] to be permissive, that is, to be "may". 
By this time - July 5th, 1985 - the referee had made a report on the seized documents. He had been "assisted" by Mr. Matz of the Church of Scientology in determining which documents were considered to be privileged. Matz was cross-examined by the Crown Attorney, Mr. Hill. Judge Osler accepted the referee's report and ordered that all documents found to be privileged should be sealed. The remaining documents were returned to the police, but were subject to the following order:
"..that all material seized under the two warrants, save for that
which is required for its evidential potential in respect of the
charges that have been laid, will be returned to the respective
At this time, the police had still not been afforded an opportunity to examine the material for which a religious privilege had been claimed , and so the police were unable to determine whether that material met the test above, that is, whether it was potential evidence. Osler, J. wrote that as there was no further order for the detention of that material, it should be returned also.
It should be noted that in the course of these hearings before Motions Court, standing was given to other Scientologists on the basis that materials concerning them had been seized, although they were not charged.
Both the defendants and the Crown appealed the decisions of Judge Osler. This appeal will be described in Part 7 of this series.
By 1985 the Scientologists had a new problem. Some of the accused wanted to plead guilty and put the problem behind them. Charges were laid on December 1st, 1984; June 26, 1985; and December 16, 1985. On December 13, 1985, Nanna Krogh Anderson, charged jointly with the Church of Scientology of Toronto, appeared with her counsel before Judge L.E. DiCecco. This was 3 1/2 weeks before all accused were scheduled to appear for a preliminary hearing. Counsel for the church was not notified by the prosecutor, but was notified by the news media one hour before the hearing was to take place. He was unable to attend in court, and his pleas to the prosecutor to limit publicity were rebuffed. However, the prosecutor undertook to inform the judge of the preliminary hearing scheduled for January 6th, 1986.
Anderson pled guilty to unlawful possession of property of a value exceeding $200 knowing that such property had been stolen. An agreed-upon statement of facts was presented by the Crown counsel, detailing Ms. Anderson's membership in Scientology branches in Denmark, England, and Toronto. In a further effort to mitigate the sentence, defending counsel called Ms. Anderson to testify. Her examination-in-chief occupies over 30 pages of transcript, and contains extensive references to the Church of Scientology, its organization, practices, and the manner in which Ms. Anderson ultimately received instructions to commit the offence charged. After the hearings, the judge observed:
"It is a serious matter, there is no doubt about it, Ms. Anderson. However, through your testimony today, not so much what your counsel said or what Mr. Pearson said, but your testimony today; the emotion that you showed to me; the facts that you recounted to me, I've come to the conclusion that sentence was passed on you much before today. I cannot think of a heavier sentence where a mother is deprived from being able to show her love every day to her own child. I cannot think of any heavier sentence than where someone can be put in a position to think that she's an unfit mother when I'm convinced today that you're not an unfit mother but you've been a hardworking member of this community. Whatever you did was because of a particular situation that developed over a period of years from when you were a teenager. We're all aware of the influences that can be made on young minds and the effect that those influences can have on a person throughout their adulthood. Madam, I'm taking the position that you have been penalized sufficiently. As I indicated, the matter of general deterrence, if every person would think and realize what you have suffered, if that is not a general deterrence, I do not know what that could be." 
The case was widely reported. For example, on CBC-TV "The National News", 10 p.m. December 13, 1985:
Vicki Russel - "It was nearly three years ago that police raided the Church of Scientology and dragged away a quarter of a million documents as evidence. The Church and 19 individuals were charged with offences including theft and possession of stolen property. Police alleged that the Scientologists got the stolen documents by inflitrating organizations which were investigating or had information about the Church, and today in court the first of the accused went to trial and pleaded guilty to possesssion of stolen property. Nanna Anderson said Church officials pressured her to find a job in one of three places. She chose the Ontario Medical Association, which was investigating the Church to see if it was practicing medicine. She told the Court of the hardship she went through in the 17 years she was involved with the Church. She said Church members pressured her for money and expected her to put in long hours doing volunteer work. The judge gave her an absolute discharge."
On January 3rd, 1986, a few days before the preliminary inquiry, Kathleen Lepp, who was charged jointly with the Church of Scientology of Toronto and with members Jacqueline Matz (AKA Baillie), Susan Leah Lemieux, and Michael Symington on count 4 of the information [theft from the Canadian Mental Health Association], appeared with her counsel before Provincial Court Judge R. B. Dnieper. It was Ms. Lepp's intention, apparently, to enter a guilty plea to the offence charged in count 4.
Counsel for the church and four of the other defendants sought leave, under section 24(1) of the Canadian Charter of Rights and Freedoms, to make representations to the presiding judge, for an order enjoining the counsel for the Crown and Ms. Lepp from mentioning the names of the co-accused, or directing the media not to publish such names or other information on their alleged role in the offence, until the trial of the co-accused had been completed. Judge Dnieper said:
"The problem before the court is this: we have a collision between two seperate rights. There is the right of a free press and to be informed by it. To interfere with this is, in my view, the second most dangerous thing that a court can do. The most dangerous is to arrogate to itself powers which it does not possess. I assure you, I would like to find some way out of this that will satisfy everybody, but I do not see it. What, in fact, is happening here is this: Crown has called the case. Other counsel have stood to address the court. They have no status in the case of _The Queen against Lepp_. No question of that. If the Crown had called all of the accused, then everyone could have been spoken to at the one time, but Crown did not do this. Crown called Miss Lepp only. The Crown is severing the matter. It is an exercise of Miss Lepp's right to plead guilty when she wishes. ... The submissions made by learned counsel to this court are a motion. I do not believe I have jurisdiction to hear it. ... If I had the power to hear that motion, it is unlikely that I would make such an order for the following reason. I have pointed out that the most dangerous thing a court can do is to arrogate to itself a power it has not received from the sovereign will of the people. The second most dangerous is to interfere with free press. It would have to be made abundantly clear that the value to free publication is so little and the harm to someone else is so great by publication, before I would even consider it. I do not believe that this would be the case, anyhow. ... Accordingly, gentlemen, you have not status in the case of _The Queen against Lepp_ and I am without the jurisdiction to hear any motion such as made before the court. Pray, arraign Miss Lepp." 
In consequence of this ruling, Clayton Ruby, acting for the Church of Scientology, announced that he proposed to have the matter reviewed by the Supreme Court of Ontario, and "took the somewhat unusual, if not contemptuous, step of serving the learned presiding judge in open court." 
Despite the protests of Crown counsel, court was then adjourned to permit the judicial review.
On January 6th, 1986, the various accused appeared in Provincial Court for the preliminary hearing. The presiding judge ruled that the matter should not proceed until the judicial review was completed.
The review was held in the Ontario High Court by Judge Watt. Counsel for Scientology contended that:
Crown counsel acknowledged that the Provincial Court was a court of competent jurisdiction, but argued that the remedy sought was neither appropriate nor just in the circumstances. The Crown also contested the standing of the applicants for the review.
The court reviewed the common law and recent decisions under the _Charter_. It ruled that on April 28, 1986, that Judge Dnieper had erred in law in denying the co-accused status to seek the publication ban. The matter was returned to Provincial Court, to be heard by a different judge.
Recall Judge DiCecco's words: "the matter of general deterrence, if every person would think and realize what you have suffered, if that is not a general deterrence, I do not know what that could be."
Publication bans and deals in which the accused promise not to mention the role of Scientology eliminate such deterrence. To this day , many of the general public think that only 3 persons were convicted in the Scientology trials. By 1988, four of the accused had pled guilty, and had received absolute discharges.
On July 5th, 1985 Motions Court (Supreme Court of Ontario) ruled that the warrants to search Scientology were valid, but that much of the material seized should be returned. Scientology appealed on the basis that, in their view, the warrants were invalid, and that furthermore they felt that a church should be immune to criminal prosecution. The Crown cross-appealed on the basis that, in its view, the order to return the seized property was incorrect. The issues were the same as before Motions Court, but in this case the three-member panel of Judges Lacourciere, Goodman, and Finlayson examined them in "microscopic detail". 113 precedents were examined, as well as 9 statutes and 18 books. In addition to the defendants, a number of other Scientologists applied, on the basis that their confidential pre-clear folders should have been immune from a search. A list of the 133 applicants is given at the end of this article.
BOTTOM LINE: The appeal was dismissed. The cross-appeal was allowed. The search warrants were valid; the detention orders were valid; the order to return the seized documents was set aside.
Here are the legal arguments...
A major issue of contention was the proposed charge #2, listed in the information which accompanied the application for a search warrant. The charge included these words:
"...did defraud the public, more specifically persons to whom Scientology made representations concerning the qualities of and benefits receivable from, courses, including the Purification Rundown, and from E-Meters, for sale at costly prices in no way related to the real value of such things, such things being without the represented benefits, thus by deceit, falsehood or other fraudulent means defrauding such persons of money, property or valuable security..."
Scientology contended that this was an attack on their religious beliefs and practices, and that such allegations are neither capable of proof nor criminal prosecution. They contended that there can be no investigation into the validity of religious beliefs, and further, "that a church, being a church, is not subject to criminal prosecution arising out of its principles or practices." 
The court reviewed case law on this. One of the leading cases was _R. v. Big M Drug Mart Ltd._, where the government had been trying to enforce Sunday business closings (the "Lord's Day Act") based upon Christian beliefs. Other cases were reviewed in which, for example, a Christian Scientist had refused medical aid; where a Jehova's Witness had refused a breathalyzer examination; where a Sikh had been refused the right to wear a ceremonial dagger into court; and where a native Indian, according to the custom of his tribe, had committed bigamy.
The court ruled that while the freedom of religious belief is absolute, the "freedom of religious practice or conduct is not absolute, and is subject to laws of general application established to protect public safety, order, health, morals, or the fundamental rights and freedoms of others."
"The mere fact that an organization claims to be a religion does not bar the Crown or any other litigant from seeking the assistance of the court in the determination of either criminal or civil wrong. ... The Crown is seeking judicial assistance for an experienced police officer who has sworn that the appellant Scientology is an organization that has hidden behind the fabric of a church to commit significant criminal acts. These are serious allegations that can only be resolved at a trial by proper evidence, but clearly they are triable." 
In reviewing the other proposed charges, the court made note of the Stipulation of Evidence signed by Mary Sue Hubbard in the case of _United States of America v. Mary Sue Hubbard et al., U.S. Dist. Ct. for the District of Columbia, Crim. No. 78-401, October 1979, in which it was stated that the Religious Research Foundation was a Scientology "front", and that Scientology was concerned about the U.S. IRS gaining knowledge about that organization. The Appeals Court noted that it was alleged that Scientology "donations" are alleged to be set fees, payable in advance. Goods and services could be purchased by credit card, and purchasers were encouraged to have their credit card limits raised to the maximum amount, and then to take advantage of the credit card cash-advance system to buy Scientology services. 
Court noted that, "...it does not follow that because Scientology is a religious organization, it could not also be a money-making organization and thus disentitled to status as a non-profit organization." 
The court quoted from _United States v. Article or Device, etc._, (1971), 333 F. Supp. 357, affd. Court of Appeals, District of Columbia Circuit, March 1, 1973, page 361:
"The bulk of the material is replete with false medical and scientific claims devoid of and religious overlay or reference. Two books which the Church especially recommended to interested participants, _Scientology: The Fundamentals of Thought_ ... and _The Problems of Work_, ... are typical examples of books containing false scientific non-religious claims."
The applicant for the search warrant had supported his request by stating that Scientology employs hard-sell salespersons called "Regs" [registrars]. Scientology alters its set fee schedule regularly to accord with what the markey will bear. Its staff receives very little compensation and is committed to contracts for a minimum of 2 or 2 1/2 years, and for as long as 1,000,000 years. The courses are said to be highly priced, misrepresented as to quality and designed to indebt the employee to Scientology through the signing of promissory notes. 
The Appeals Court upheld all of Mr. Justice Osler's rulings as regards the original proposed charges.
Counsel for Scientology also objected:
In all of these matters, the Appeals Court was in accord with the rulings of Judge Osler in Motions Court.
Scientology also objected to an alleged lack of particularity in the description of things to be searched and seized, in particular to class designations of documents. They contended that the search warrant descriptions were broad, vague and inclusive, and asserted that a test of "scrupulous exactitude" should be applied by the court. This prompted an explanation by the Appeals Court of the difference between the American and Canadian limits on searches.
The United States Fourth Amendment states:
"The rights of the people to be secure and their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probably cause, supported by oath or affirmation, and PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."
By contrast, the Canadian Charter of Rights and Freedoms, section 8, says simply:
"Everyone has the right to be secure against unreasonable search or seizure."
The Court stated:
"There can be no doubt that before enacting the _Charter_, great care was taken in considering the American experience... It seems to this court that it is not without significance that s. 8 does not contain the Fourth Amendment's express mandatory provision with respect to particularity of description of the place to be searched and the persons or things to be seized."  "It was incumbent on the Motions Court judge to consider the size and sophisticated nature of Scientology and its affiliates, as well as the continuing nature of the alleged offences and the lengthy period of time during which they are alleged to have been committed." 
The Appeals Court ruled that Motions Court had ruled correctly with regard to particularity, and also with regard to the allegations of falsehood and reckless disregard for the truth, which were made by Scientology. Some mistakes in the information were admitted or detected, but in the court's view, "these mistakes arose out of the sheer scale of the work and number of documents having to be considered".
The question of privileged documents was considered. The court noted that the appellant's argument could be reduced to a syllogistic form:
With regards to documents subject to solicitor-client privilege, the Appeal Court agreed with the ruling of the lower court. A extensive consideration was given to the claimed priest-penitent privilege. An affidavit had been presented to court in which Jean Carnahan had sworn:
" 1. I am a staff member of the Church... ... 10. that the practice of the Church of Scientology is to absolutely respect the confidentiality of the documents contained within the pastoral counselling files which reflect the priest-penitent communication given in an expectation of confidentiality. The Church would never countenance their distribution outside the Church or to those not authorized within the Church and every parishoner understands his pastoral counselling communications will forever be kept confidential within the Church." (signed) 3 June 1987
Counsel for Scientology then cited the authoritative work, _Wigmore on Evidence_, which sets four conditions for a privileged document:
" 1. The communications must originate in a confidence that they will not be disclosed; 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3. The relation must be one in which the opinion of the community ought to be sedulously fostered; and 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."
Court noted that statutory sacerdotal privilege exists in Quebec, Newfoundland, New Zealand, three Australian states and forty-six American states. However, that statutes differ significantly. Some restrict the types of communication protected; others require that the communication be made to an ordained minister. The Crown pointed out that the governments of Canada, Ontario and England had recently considered their positions with respect to confession communications, and all three had expressly declined to recommend enactment of statutes to extend the privilege.
The court concluded that there is no recognized class privilege accorded to the priest penitent relationship. The right to freedom of religion guaranteed in s. 2 of the _Charter_ is absolute only with respect to belief. With respect to practice, it is not absolute, and the _Charter_'s applicability must be determined on a case by case basis. Therefore, the question of privilege, and the alleged violation of s.2 of the _Charter_ were matters which went to the jurisdiction of the warrants, and should have been considered by the Motion Court judge.
The court noted that the affidavit evidence by Carnahan to support the religious nature of the folders had been rejected by Judge Osler in a decision of September 7, 1984, and that police evidence was that the folders were prepared for secular and commercial use, and for the purpose of handling difficult staff members. It was open to the judge who issued the warrants to conclude that the information contained in the files was elicited in furtherance of a criminal purpose. Thus Wigmore's third and fourth criteria would not be met, and regardless, the common law exception to all claims of privilege would apply by reason of a _prima facie_ case of criminality.
This being the case, it is the responsibility of the judge or justice of the peace who issues the warrant to set out procedures for the execution of the warrant which reconcile the public interest with the interests of the claimed priviliege. In the case of R. v. Scientology, considering the Guardian Office raid protection mechanisms, and the fact that Scientology itself is named as having committed the offences, there was "no reasonable alternative" to obtaining the information sought. 
Judge Osler in Motions Court had reinterpreted the word "shall", contained in Criminal Code s. 446(1), to mean "may":
"Where anything that has been seized under section 445 or under a warrant issued pursuant to section 443 is brought before a justice, he SHALL, unless the prosecutor otherwise agrees, detain it or order that it be detained..."
This section authorizes _ex parte_ hearings, and since Judge Osler had ruled that the _ex parte_ hearings were unlawful, he also had to reinterpret the word "shall". Appeal Court declared that this was an error. The law meant exactly what it said. Judge Osler had also declared that "a retention [of seized property] is a mere extension of a seizure..." Again, this was ruled an error in law. Section 8 of the _Charter_ provides the right of security against unreasonable search and seizure, but it says nothing about the retention of seized goods. Seizure and retention are two different acts. Due to these fundamental misconceptions, the Crown's appeal was allowed and Judge Osler's rulings on the _ex parte_ hearings and the return of seized property were set aside.
In all other aspects, the Appeal Court agreed with the rulings of Motions Court. On January 30, 1987, the appeal by Scientology was dismissed, and the Crown's appeal succeeded.
The 133 applicants for appeal on the matter of search warrants, re R. v. The Church of Scientology of Toronto:
The Church of Scientology of Toronto, Diethelm ALISCH, Carol ALLAIRE, Paul ANDERSON, Phil ANDERSON, Pauli ANDERSON, Jim ARMSTRONG, Mike AVON, Rick AYOTTE, Rick AYOTTE, Cynthia BAKE, Deborah BEATON, Alec BEATON, Brian BEAUMONT, Sharon BEAUREGARD, Marilyn BELAIRE, John BELL, John BELL, Stanley BERDA, Wilfe BETKE, Ines BIASTROCCI, Susan BURNHAM, Debbie BURPEE, Jacqueline CARMICHAEL, Scott CARMICHAEL, Wayne CARNAHAN, Jean CARNAHAN, Bob CASSIDY, Isabelle CASSIDY, Paul CHARBONNEAU, Dorothy CHARBONNEAU, Ed CHEONG, Nicole CRELLIN, Mike CRELLIN, Dan CROCINI, Stan DAVIDSON, Larry DENSMORE, Larry DENSMORE, Claire DESJARDINS, Bruce DICK, Dianne DOBSON-SMITH, Joe DUNPHY, Steve ELDON, Dave ERISON, Brad EVERETT, Patricia FELSKE, Eugene FELSKE, Judy FRASER, Nick FRASER, John GASKIN, Ron GRANTHAM, Dawn GREEN, Sheila HENSON, Errol HERNANDEZ, Andy HILL, Rob HOY, Gord ING, Jaan JOOT, Joe KELDANI, Evelyne KELLY, Kathleen KERR, Joanne KERRIGAN, Rob KERRIGAN, Doris KERSHAW, John KILGOUR, Linda KIRK-TRACEY, Caroly LANDRY, Ernest LEHMAN, Linda LEVESQUE, Ron LITCHFIELD, Lavinia LYNE, Bill MACKIE, Vic MACLELLAN, Sandra MACLELLAN, Tad MAGEE, Colin MANNING, Nicola MARANO, Jacqueline MATZ, George MATZ, Gwen MCCOY, Mick MCCOY, Dave MCGOWAN, Gary MCKAGUE, Lynne MCKAGUE, Rita MEDEIROS, Flo MEINGAST, Jean-Claude MICHAUD, Cathy MICHIE, Judith MUIR, Andy MURRAY, Caroline MUSTARD, Paul NELSON, Francine NEPTON, Bill O'MEARA, Armelle PEARSE, Jim POPOFF, Dolores POTTER, Lise PRATTE, Jeff PRESANT, Pierre ROBILLARD, Heather ROBILLARD, Hilarie ROCKL, Pat ROSNAK, Lura SCHMIEDEKE, Harry SCHMIEDEKE, Harvey SCHMIEDEKE, Clara Anne SCHNEIDER, Tony SEARING, Rhonda SEARING, Joan SEDLAK, Jean SEPIC, Mil SEPIC, Yvette SHANK, Dave SHARE, Susan SISSON, Earl SMITH, Linda STUART, Bridgette TAYLOR, Ted TIMMERMANS, Nancy TROIANI, Mike TROIANI, Paul TURNBULL, Ellen TURNBULL, Pieter VAN EE, Darlene VORM, Anne Marie WALSH, Janice WHEELER, Donald WHITMORE, Tarnie WHITMORE, Lillian WHYTE, Otto WILKENS, Janet WILKINS, Michael P. ZAHARIA
In December 1987, Scientology affiliate New Era Publications International, ApS of Copenhagen was in federal court, attempting to get an interim injunction to stop the publication of "The Bare-Faced Messiah: The True Story of L. Ron Hubbard, by Russell Miller. Cathia Riley, the church's director of special affairs, claimed that the book contained material stolen by former members of the church in California. Lawyer Julian Porter, whose wife owns Key Porter Books, the Canadian publisher, told the court that his main defence was "fair dealing" on the part of the author. "You cannot criticize accurately without citing in some instances the work you are criticizing", Porter said. 
On December 2nd, four hours after lawyers had ended their arguments, Mr. Justice Bud Cullen delivered a 10 page judgement denying the injunction. Judge Cullen described Scientology's founder as an author of "outlandish, foolish, vicious, racist writings." He observed approvingly of statements by a British High Court judge that Scientology is "both immoral and socially obnoxious" as well as "corrupt, sinister and dangerous". 
Scientology had some good luck in May of 1988. The long-awaited Supreme Court of Canada decision in the case of _Stewart v. The Queen_ was announced on May 26. Stewart was a consultant who was acting on behalf of a union in a recruiting drive. He had offered a security guard at the worksite an amount of money in exchange for a confidential list of employee names, addresses and telephone numbers. The information was to be obtained without removing or otherwise affecting the records themselves. Stewart was reported to the police, and was charged with counselling to commit a fraud, counselling to commit a theft, and counselling to commit mischief.
The Supreme Court determined that Stewart should be acquitted of all charges. They wrote that for a theft to occur, that which is stolen must be the subject of a proprietary right, and that it "must be capable of being taken or converted in a manner that results in the deprivation of the victim". 
Therefore, information cannot be stolen. Merely copying or memorizing a confidential document is not theft.
The lawyer who argued this case was Clayton Ruby. The arguments of _Stewart v. The Queen_ were later put to good use by Scientology.
In July, 1988, Scientology came up with a new tactic. Church lawyer Clayton Ruby sent a letter to Ontario Attorney General Ian Scott proposing a deal whereby "possibly millions" of dollars would be given to agencies which help the elderly, poor, and drug addicts, if the government would drop charges against the Church and give them immunity from prosecution. At a press conference on July 26th, church spokesman Cathia Riley said that the church did not insist that charges against individual members be dropped, and urging Scott to suggest an appropriate cash amount.
It turned out that the social agencies were not very happy about the proposal, and Scott was roundly criticized for even considering the deal, which he admitted was an attempt to buy off the prosecution. The idea that people or corporations with deep pockets could be above the law did not sit well with the citizens, and the proposal was quickly refused.     
The accused Scientologists, and the Church of Scientology of Toronto, were indicted on September 21st, 1990, and again by preferred indictment on February 8th, 1991, on charges of theft and/or possession of stolen property, and of Breach of Trust by Public Officer.  
In an unreported preliminary hearing before Judge Babe, Scientology argued successfully that it could not be proven that the documents which they were accused of having stolen, or having possessed knowing that they were stolen, were of a value greater than $200. This makes the difference between petty theft and felonious theft (the limit today  is $1000). Scientology lawyers relied on the Supreme Court ruling in _Stewart v. The Queen_, as the valuation of the documents had been based largely on their confidentiality, that is, the value of the information. The Crown was reduced to allegations either that the paper on which the documents were printed had been stolen, or else that it was removed from use (converted) for the period of time it took to photocopy them.
The Scientology defence lawyers then sought a declaration from the trial court that their right under s. 8 of the _Canadian Charter of Rights and Freedoms_ to be secure against unreasonable search and seizure was infringed, due to the manner in which the search warrant was executed and because the warrant was allegedly obtained in a fatally flawed manner.
The accused argued that the evidence relied on to show reasonable and probable grounds for a search was obtained by unlawful acts by the police. An undercover police officer employed by the church had taken documents from the workplace, had them copied, and returned them to the files. The accused argued that the removal constituted a "seizure" and that the seizure was unreasonable and violated their s. 8 rights. They also claimed that the taking of the documents constituted theft. They submitted that the police officer committed forgery when, in connection with her employment for the church, she signed a document containing a false statement.
Constable Barbara Taylor of the Ontario Provincial Police (OPP) later testified on May 19th, 1992 about her role. She had been assigned to work undercover at the church in 1980, after documents from the Ontario government had been found in an FBI search of the Los Angeles Church of Scientology headquarters.  By 1983 she had gained a position in the Guardian's Office of the Toronto church. In this position, she had access to intelligence files, including files on the OPP and the detective supervising Taylor's assignment. She said that some of the information appeared to be from job-performance evaluations.
Anyone with a sense of irony will be amused at this. Here are the police investigating infiltrations by doing some infiltrating of their own. Here is an undercover officer discovering purloined information on her own force, job-performance reviews on her own boss. And because she copied that information, the Scientologists cry foul and accuse her of theft. Truly a game of spy and counterspy.
Judge Southey ruled:
"The taking of the documents did not constitute theft, because it was not done fraudulently or without colour of right. The taking was incidental to the ultimate disclosure of the suspected criminal conduct of the accused. The undercover officer was under a public duty to make full disclosure, a duty which did not depend on her status as a police officer." 
The judge also ruled that the seizure of the documents was not unreasonable and did not violate s. 8 rights.
As to forgery, Constable Taylor was required to sign a document entitled, "Declaration of Religious Commitment and Application for Active Participation on Church Staff". This document includes the following declarations:
" (9) I am not related to or connected to intelligence agencies either by past history or immediate familial connections. (11) I am not here to obtain news stories or data for any other organization or to generally disrupt the Church organization. (14) I have had no prior service in a high security section of the government or armed forces.
Judge Southey said that the officer did commit the offences of forgery and uttering (she had been assured that the Attorney General would stay prosecution), but that the fact that this was not revealed to the issuing judge did not render the search warrant invalid. This would only be the case if the information not disclosed would tip the scales against the issuance, in the mind of the issuing judge. In fact, had Judge Hayes been informed that "source #3" was an undercover police officer, it would probably have strengthened the case. "The signing of the forms was essential to her undercover operation... most reasonable persons would regard the criminality as technical, not involving and immorality". 
A much more serious issue was the manner in which the search warrant was executed. The search warrant limited the search with these words: "All the above described things to be searched for to relate directly to the below described offences." These were the three proposed charges of tax fraud, consumer fraud, and conspiracy to commit indictable offences, including break, enter and theft. The Ontario High Court and Court of Appeal had referred to the limitation above in deciding that the warrant was valid.
The investigation into Scientology had been given the name,"Project 20". It was kept to a minimum number of persons, so as to avoid exposure to possible Scientology "plants".
The search warrant was executed by a force of 129 OPP officers, most of whom were used to secure the building. The search team consisted of 37 officers, some of whom were administrative personnel. The original plan called for only 19 officers to actually look at the documents. These were a 3 officers per floor, plus one extra on the third floor. The seven accountants present were to give advice on the documents to be seized. Only one of the searching officers on each floor was a Project 20 member. There was one copy of the search warrant per floor. None of the officers had been permitted to contact relatives between their muster for the search and the initiation of the search, in order not to tip off the suspected "plants". No provision was made for the searching officers to be relieved. While the warrant permitted a three day search, the plan was to take 20 - 24 hours to complete it. In fact, it was complete in 20 hours, but allowing for time to prepare rooms for searching by photographing and labelling, only about 17 to 18 hours was spent searching.
39,000 files were taken, averaging 50 to 60 pages per file, for a total seizure of about 2 million pages. The trial judge calculated that if the seizure of all documents had been approved by the team leaders, as was the original plan, then "the six team leaders each approved documents at the rate of five pages per second, non-stop, for the 17 or 18 hours in which they were searching." 
A significant number of documents were seized which did not fall within the classes of documents covered by the search warrant. An example was the pre-clear folders. They were clearly marked as pre-clear folders, and each bore the name of the person who was the subject of the file. The OPP had authority under the warrant to seize the pre-clear folders relating to members and former members of the Guardian Office. No list of names of the Guardian Office staff was provided to the searching officers. Instead, the total number of pre-clear folders seized was 978, relating to 641 parishoners. In June 1983, 48 boxes of pre-clear folders were returned by the OPP, because they were folders of persons not on the Guardian Office staff.
Likewise, in other areas, the judge found that there were wholesale seizures, rather than a search for relevant documents followed by a seizure. Whole locked filing cabinets were taken, rather than being opened and searched. Judge Southey concluded, "There is no question that the search and seizure of documents not covered by the search warrant which resulted from the improper manner in which the search was conducted was unreasonable because it was warrantless." 
However, the Crown sought only to introduce documents which did fall within the terms of the search warrant. Judge Southey referenced decisions in _United States v. Heldt_, 668 F.2d 1238 (1981) and _R. v. Simmons_ (1988), 38 C.R.R. 252, which relate to a good faith attempt by officers to stay within the limits of a warrant, and to the requirement for a "flagrant" violation of _Charter_ rights for evidence to be set aside. He concluded that because so many officers paid no attention to the search warrant limitation, that the facts do not support a finding of good faith.
Section 24(2) of the _Canadian Charter of Rights and Freedoms_ requires:
"Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
Accordingly, Judge Southey ruled on December 2nd, 1991, "the Crown may not give evidence as to the documents seized in the premises of the corporate defendendant on March 3 and 4, 1983." 
NONE of the seized documents could be used as evidence in the trial.
[This is the last in the series]
As was seen in part 9, Ontario Court Judge James Southey ruled on December 2nd, 1991 that the prosecution could not present any of the documents seized from the church offices in 1983 as evidence, due to the manner in which the search warrant was executed. Following on this ruling, Scientology lawyers applied to extend this exclusion to all evidence obtained by the Crown subsequent to this search and seizure, characterized as "secondary" evidence. The _Canadian Charter of Rights and Freedoms_ allows for the exclusion of evidence which is not derivative or causally connected to "primary" evidence which was collected unlawfully. For this reason, the term "secondary" evidence is used as being more inclusive.
The Scientology claim was for the exclusion of:
"(1) the evidence of five former Scientologists who were discovered by and gave statements to the Crown after the search and seizure. Their names are Kathy Smith (formerly, in succession, Kathy Wilkens and Kathy Gilbert), Emile Gilbert, Marion Evoy, Dianne Fairfield, and Bryan Levman; and (2) all evidence derived from the statements of those five persons and of other former Scientologists interviewed after the search and seizure, as, for example, the evidence of "target" organizations whose documents are alleged to have been stolen by Scientologists." 
Among the documents seized by police was a "suppressive persons declare", dated February 16, 1983, issued by the International Chief Justice and approved by the Church of Scientology International, declaring eight persons to be suppressive, and expelling them from the church. Among those were six people who had held high positions in the church during the period when the alleged offences occured: Kathy Gilbert, Emile Gilbert, Bryan Levman, Rosi Levman, Gary Jepson and Donna Jepson. None of these people had been approached by police before the search -- it was the S.P. declare that identified them to police as potential sources of information.
Also included in the seized documents was an undated memorandum signed by Bill O'Meara, a senior member of the guardian office, requesting advice on criminal and civil actions which might be taken against Emile Gilbert. Another document dated February 14th, 1983, contained advice from a church attorney for action against Emile Gilbert, and remarks that one proceeding would have the added benefit of "getting Gary Jepson and Katie Gilbert".  Despite the fact that both these documents are privileged solicitor-client communications, they were apparently used by police.
The seized "Combat Information" files revealed four additional Scientology targets which were unknown at the time of the raid: The Ontario Medical Association, the law firm of Goodman & Goodman, the Royal Canadian Mounted Police, and the Metropolitan Toronto Police Department.
The judge found that there was a causal connection between the primary evidence and the secondary evidence, in that the seized documents identified potential witnesses, and they were used by police to persuade the witnesses to be forthcoming.
He then had to rule on the exclusion of the secondary evidence. Section 24(2) of the _Charter_ states:
"Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
The breach of the defendant's _Charter_ rights was a serious one, commented the judge, and the charges of theft or possession of stolen property of a value under $200 were not serious. In this case, the secondary evidence should be excluded, as to include it would bring the administration of justice into disrepute.
On the other hand, the judge had to weigh the disrepute which would arise from the exclusion of evidence. He commented:
"The most reprehensible aspect of the alleged conduct, in my opinion, was the attempt to impair the effectiveness of the law enforcement agencies that were targeted, namely the Ontario Provincial Police, Metropolitan Toronto Police, Ministry of the Attorney General for the Province of Ontario, and the Royal Canadian Mounted Police. This aspect of the conduct of the accused is expressly dealt with in the counts of breach of trust. These are very serious charges, in my view. ... As to the trial of the more serious charges of breach of trust, I dismiss the application because to exclude the secondary evidence in the trial of those charges would, in my judgement, bring the administration of justice into disrepute, in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case." 
So the application for exclusion was allowed in part, and dismissed in part. There was a directed verdict of "not guilty" on the theft charges.
Lawyers for Scientology objected, unsuccessfully, that too much time had elapsed since the charges were first laid. They then challenged the array of the jury panel, contending that it was unrepresentative because the _Juries Act_ requires jurors to be Canadian Citizens. According to Scientology lawyers, any permanent resident should be eligible. The court ruled that citizenship was a reasonable requirement. Scientology also made some other rather silly objections, based on occupational categories and the use of a computer to select jurors. They accused the Sheriff, who administers the jury, of "wilful misconduct", because he used a computer. All of these objections were dismissed by the trial judge. 
On April 21, 1992, the prosecution and defense outlined their evidence. James Stewart, acting for the Crown, told the jury that former Scientologist Bryan Levman would be the prosecution's main witness. Levman had become interested in Scientology as a 20-year-old student, and rose quickly through the ranks to become Deputy Guardian for Canada. Mr. Stewart also said he planned to call police officer Barbara Taylor, to describe her undercover work within Scientology, and other former Scientologists who had knowledge of the crimes.
Defence lawyer Clayton Ruby did not deny that crimes had been committed, but he maintained that the wrong people were at trial. He used organization charts to underline his assertions that "the Guardian's Office could give orders to the Church of Scientology, Toronto, but the Church of Scientology, Toronto, could never give an order to anyone in the Guardian's Office".  Ruby said the prosecution witnesses could not be believed, because they had all taken special training in how to lie.
Bryan Levman testified for five days. After his promotion to the position of Deputy Guardian Canada by Mary Sue Hubbard, Levman travelled to England in 1973 for a briefing from Jane Kember, head of the Guardian Office Worldwide. He testified that he was shown a secret policy directive from L. Ron Hubbard outlining how members of the Guardian's Office Worldwide should "deal with Scientology's enemies". These techniques included "ripoffs", described as a "break and enter", and the use of "agents" -- having Scientologists get a job within a targeted organization. According to the policy, information was to be used to get enemies of Scientology removed from their jobs. He was told to get the information "any way you can".  "Jane Kember ... knew the attorney general, the OPP and Metro Police were investigating us and she wanted the files -- that was my mandate, to get those files."  He said he was given a list of 12 agencies that he was expected to infiltrate.  As the operation proceeded, the target list grew to "probably a few dozen" agencies and individuals, he said.  Levman testified that after every successful operation, the Guardian's Office in England would be informed by telex through an elaborate code system. Levman said no money was ever taken in the "ripoffs", only photocopies.
Former Scientologist intelligence bureau chief Dianne Fairfield told the court that she had recruited three people -- "two plants and one agent" -- to work in the Royal Canadian Mounted Police headquarters and Revenue Canada taxation offices. The agent developed a cover, befriending people in certain agencies and groups. The plants tried to get secretarial or janitorial jobs in target organizations. 
Marion Envoy, formerly Canada's top official with Scientology, said [Ron] Hubbard believed there was a world-wide conspiracy against his church run by a band of former Nazis who had overtaken Interpol -- the European-based International police organization. She said that Hubbard ordered a world-wide spy operation, code-named "Snow White". Envoy said that as part of her spy training she was put in a closet with a set of lock picks and told to unlock the door. Defense council Ruby showed Envoy a document he suggested was the basis for the Snow White program and pointed out it specified using only legal means. She said it appeared to be a version of the program intended for the legal department.
Former Scientology agent Kathy Smith testified about safe houses referred to as "the garden", where secret information was amassed and filed. She said she wrote a letter to Hubbard outlining all the illegal activity she was involved in and received a note of congratulations back, signed Ron. 
A number of witnesses testified about being planted in police offices and stealing or memorizing information from confidential files. Many of the witnesses said they had been on Hubbard's yacht, or in his place in England or Florida during their years with the church.
The defence called Jane Kember as a witness. Mrs. Kember, then 55, said that as Scientology's "Guardian", she authorized break-ins and "plants" in governments and police forces "despite" orders from L. Ron Hubbard to avoid illegal means of gathering information. She said the Guardian's Office had no direct links with the Church of Scientology. She told the jury her actions led to her spending two years in a U.S. federal prison. 
Defence witness Caroline Taylor testified that during the period she served as secretary to Ron Hubbard she screened mail to him, but saw no letters alleging crimes were being committed by the Guardian's Office. 
The defence called David Miscavige, the head of the Church of Scientology. Miscavige said that when he first saw a document outlining dirty tricks and harassment in a project called "Operation Freakout" in 1981, "I was shocked". He said that in July, 1981, when he and other top officials investigated the dirty tricks, they discovered that Scientologists in the Guardian's Office were committing crimes. The Guardian's Office was set up in 1966 by L. Ron Hubbard to gather information and deal with external matters, he said.
Miscavige said that although he lived for a time in the complex with Mary Sue Hubbard and her staff, he knew nothing about their covert activities. After learning about the crimes committed by the Guardian's Office, Miscavige and colleagues decided they would have to bring it under the control of the main church, he said. They devised a plan in which trusted teams of Scientologists would fan out to various Guardian's offices worldwide, poised to await word that Mary Sue Hubbard had resigned as head of that branch.
Miscavige told the court that his mission was to get Hubbard's wife to quit. When they confronted each other in a Los Angeles hotel room, Mary Sue Hubbard called him "some pretty nasty names" and held a large ashtray close to his face. But he persuaded her it was futile to hang on to power.
The church tried unsuccessfully to reform the Guardian's Office and finally disbanded it in 1983, he said. 
The trial continued for two months, until June 25th, 1992. In his summation, Crown attorney J. Stewart told the jury that the Church of Scientology was trying to hide behind its members, but that it must take full responsibility for the spy activities of its agents. Mr. Stewart said secrecy is "just a function of intelligence operations. It can't be used as an argument that there was no authority to conduct" spy activities. 
The jury deliberated for a day and a half, and returned the verdicts noted in part 4 of this series. On September 11th, 1992, the Church of Scientology of Toronto was found guilty on two counts of breach of trust of a public officer. Jaqueline Matz, Janice Wheeler and Donald Bryan Whitmore were also found guilty of breach of trust. The church was fined a total of $250,000 and the others were fined $2000 to $2500 per offence.
Judge Southey said that he was satisfied the Guardian's Office was "subject to the control of founder L. Ron Hubbard and his wife, Mary Sue Hubbard". He noted that the Guardian's Office was only disbanded after incriminating documents had been seized by the U.S. FBI, and he described the large fine as required for general deterrence.
On September 14th, 1992, the Church of Scientology of Toronto announced that it had filed suit against the Ontario Provincial Police and the Attorney General of Ontario for illegal and unconstitutional search and seizure, in connection with the March 1983 raid on its headquarters. The church is seeking $18 million in compensatory damages and $1 million in punitive damages.