Scientology in Toronto [6/10]
[05 Jul 1995]

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Newsgroups: alt.religion.scientology
Subject: Scientology in Toronto [6]
From: cyber1@io.org (x)
Date: 5 Jul 1995 02:11:12 -0400

SCIENTOLOGY HISTORY IN TORONTO, PART SIX (Legal Arguments, 1983-1985)

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. [1]

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." [1]

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." [2]

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." [3]

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."
[4] 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". [5]

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
applicants."

At this time, the police had still not been afforded an opportunity to
examine the material for which a religious privilege had been claimed [6],
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.

References:

1.Ontario Reports, Vol. 47 (2d), p. 86-90.
2.Ontario Reports, Vol. 47 (2d), p. 90-96.
3.Quoted in Ontario Appeals Cases Vol. 18, p. 358.
4.Re Church of Scientology and the Queen, Canadian Rights Reporter, vol.
14, p. 303-313.
5.Re Church of Scientology and the Queen, Canadian Rights Reporter, vol.
14, p. 310.
6.Re Church of Scientology and the Queen, Canadian Rights Reporter, vol.
14, p. 312.