Scientology in Toronto [9/10]
[10 Jul 1995]

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Newsgroups: alt.religion.scientology
Subject: Scientology in Toronto [9]
From: cyber1@io.org (x)
Date: 10 Jul 1995 15:20:55 -0400

SCIENTOLOGY HISTORY IN TORONTO, PART NINE
(1987-1991)

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. [2]

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". [3]

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".
[4]

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. [5] [6] [7]
[8] [9]

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. [10] [11]

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 [1995] 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. [12] 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." [13]

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". [14]

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." [15]

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." [16]

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." [17]

NONE of the seized documents could be used as evidence in the trial.

References:

1."Court weighs bid to ban boiography of Hubbard", Globe & Mail, December 1, 1987, p. A18.
2."Lawyer says biography in breach of copyright", Globe & Mail, December 2, 1987, p. D14.
3."Court rejects bid to ban Scientologist's biography", Globe & Mail, December 3, 1987, p. A20.
4.Stewart v. The Queen. Canadian Criminal Cases, vol. 41 (1988), p. 481.
5."Scientology church offers to aid poor if charges dropped", Globe & Mail, July 26, 1988, p. A1.
6."Church of Scientology offers deal for immunity", Toronto Star, July 27, 1988, p. A12.
7."Scientology charges secular, Scott contends", Globe & Mail, July 27 1988, p. A1.
8."Charities cool to Scientologists' offer", Globe & Mail, July 26, 1988, p. A13.
9."Scott attacked over Scientology case", Globe & Mail, July 29, 1988, p. A13.
10."Church to stand trial", Globe & Mail, September 22, 1990, p. A7.
11.Ontario Court (General Division) document 1571/90.
12."Secret Ontario documents found in U.S. cult's files", Globe & Mail, January 22, 1980, p. 1 and 2.
13.R. v. Church of Scientology. Canadian Rights Reporter, vol. 9, p. 198.
14.Ibid, p. 216-217.
15.p. 204.
16.p. 210.
17.p. 220.