SCIENTOLOGY HISTORY IN TORONTO, PART EIGHT
(Jan. 30, 1987)
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 marke[t] 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:
- to the limitation on the scope of the review by the Motions Court
- they contended that there were not reasonable and probable grounds for issuing the warrants
- they contended that the evidence submitted in support of the warrants was insufficient
- to the use of “arcane” language
- to the inclusion of personal opinions and conclusions of the police applicant
- to the use of hearsay evidence from confidential informants
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:
- Before authorizing the issuance of a warrant, a justice must be satisfied that there is something which will afford evidence with respect to the commision of a crime.
- However, privileged documents are inadmissable and can never afford such evidence, unless the documents are specifically alleged to facilitate the crime.
- Therefore, as no specific allegation was made in this case, the privileged documents are incapable of affording evidence.
- This being the case, the issuing judge therefore had no jurisdiction to issue the warrant, so the property must be returned and the warrant must be quashed.
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:
- The communications must originate in a confidence that they will not be disclosed;
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- The relation must be one in which the opinion of the community ought to be sedulously fostered; and
- 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. 
The ex parte hearings
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.
- R. v. Church of Scientology of Toronto and R. v. Michael P. Zaharia, Ontario Appeal Cases, vol. 18 (1987), pp. 321-397.
- Ibid, p. 334.
- p. 335.
- p. 340.
- p. 342.
- p. 345.
- p. 363.
- p. 367.
- p. 390.
- Re Church of Scientology et al. and the Queen (no. 6), Re Walsh et al. and the Queen, Canadian Criminal Cases (3d), Vol. 31 (1987), pp. 449-552.
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