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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." [2]
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." [3]
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. [4]
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." [5]
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. [6]
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." [7]
"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." [8]
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:
1.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.
2.However, privileged documents are inadmissable and can never afford
such evidence, unless the documents are specifically alleged to
facilitate the crime.
3.Therefore, as no specific allegation was made in this case, the
privileged documents are incapable of affording evidence.
4.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:
" 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. [9]
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.
References:
1.R. v. Church of Scientology of Toronto and R. v. Michael P. Zaharia,
Ontario Appeal Cases, vol. 18 (1987), pp. 321-397.
2.Ibid, p. 334.
3.p. 335.
4.p. 340.
5.p. 342.
6.p. 345.
7.p. 363.
8.p. 367.
9.p. 390.
10.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