Scientology vs. Canada (Scientology in the News)
Anonymous
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Scientology vs. Canada (Scientology in the News)
The Monday, September 9th edition of the Montreal Gazette caries a report on
the Co$' ongoing battles with the Canadian justice system. The Co$ is claiming
the Ontario Juries Act is contrary to the Charter of Rights and Freedoms
because jurors are required to be Canadian citizens.
The Co$ is also challenging provisions barring doctors, vetrinarians and
coroners from juries. Success would mean that psychiatrists could be called
for jury duty the next time the Co$ lands in court. Another Big Win!
While it certainly looks as though the Co$ is grasping at straws, it is
interesting to consider if perhaps individuals or groups on the other side
of a Co$ lawsuit might benefit from and utilise this strategy. Be kind of
hard for the Co$ to use this argument here, then fight a similar argument
in another lawsuit. I'm sure Canada (or specifically Ontario) is not the
only jurisdiction which limits juries (or other officers of the court) in
some way.
The text of the original article is available at:
http://www.southam.com/todays_news/08-09-1996-TheGazette(Montreal)-29.html
- - - Xenu The Happy Clown
"Hey Rocky! Watch me pull a body-theatan out of this hat!"
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John Anonymous MacDonald
John Anonymous MacDonald
Anonymous
Anonymous
John Anonymous MacDonald
Jon Noring
In the attached post below, it states that Scientology is now appealing
something in Canada. It looks like a criminal conviction of some sort,
based on what I read below, but it is not detailed enough to know for sure.
Unfortunately, the URL to the relevant article in the Montreal Gazette (from
2 days ago) is no longer there so information is still lacking.
Why hasn't this been discussed more closely on alt.religion.scientology?
I guess everybody on a.r.s. is too enamored with CB's posts and arguing with
each other over trivial things, than to look up and see the really profound
events taking place in Canada. And I'm also extremely disappointed that not
more people are taking notice of what's happening in Sweden, and trying to
promote this to the U.S. media! (I've done as much as I could for the moment)
What's happened to a.r.s.? Gawd, it's become like an afternoon tea party in
Marin.
Anyway, if somebody could summarize what's happening in Canada, including
links to all the major newspaper and magazine articles on this, we'd all
appreciate it. And if somebody can get permission to actually reproduce some
of these articles to a.r.s., that would be excellent!
Thanks.
Jon Noring
*****************************************************************************
In article an article to alt.religion.scientology,
nob...@REPLAY.COM (Anonymous) posted:
http://www.southam.com/todays_news/08-09-1996-TheGazette(Montreal)-29.html
**************************
(end of anonymous post)
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Cornelius Krasel
Jon Noring (nor...@netcom.com) wrote:
> In the attached post below, it states that Scientology is now appealing
> something in Canada. It looks like a criminal conviction of some sort,
> based on what I read below, but it is not detailed enough to know for sure.
> Unfortunately, the URL to the relevant article in the Montreal Gazette (from
> 2 days ago) is no longer there so information is still lacking.
>
> Why hasn't this been discussed more closely on alt.religion.scientology?
> I guess everybody on a.r.s. is too enamored with CB's posts and arguing with
> each other over trivial things, than to look up and see the really profound
> events taking place in Canada.
I think you have a fixation on CB. All your recent posts deal with her.
Seems there is a M/U of some sort.
I hate it if somebody tells me what I ought to discuss and what not.
[Followups to a.r.s. only.]
--Cornelius.
--
/* Cornelius Krasel, U Wuerzburg, Dept. of Pharmacology, Versbacher Str. 9 */
/* D-97078 Wuerzburg, Germany email: pha...@rzbox.uni-wuerzburg.de SP3 */
/* "Science is the game we play with God to find out what His rules are." */
Martin G. V. Hunt
Anonymous (nob...@REPLAY.COM) writes:
> -----BEGIN PGP SIGNED MESSAGE-----
>
> Scientology vs. Canada (Scientology in the News)
Once is enough!
(didn't someone just now say that there wasn't enough info from Canada?
In any case, please don't spam; we have enough of that already)
--
Cogito, ergo sum.
Art Online oil paintings: http://www.islandnet.com/~martinh/homepage.html
Scientology FAQs: http://www.ncf.carleton.ca/~av282
Martin G. V. Hunt
John Anonymous MacDonald (nob...@cypherpunks.ca) writes:
> -----BEGIN PGP SIGNED MESSAGE-----
>
> Scientology vs. Canada (Scientology in the News)
>
> The Monday, September 9th edition of the Montreal Gazette caries a report on
> the Co$' ongoing battles with the Canadian justice system. The Co$ is claiming
> the Ontario Juries Act is contrary to the Charter of Rights and Freedoms
> because jurors are required to be Canadian citizens.
ROTFL!
I suppose we should allow Yank cult members to be on our juries!
> The Co$ is also challenging provisions barring doctors, vetrinarians and
> coroners from juries. Success would mean that psychiatrists could be called
> for jury duty the next time the Co$ lands in court. Another Big Win!
Yeah; and the doctors (medical) love them too. :-)
> While it certainly looks as though the Co$ is grasping at straws, it is
> interesting to consider if perhaps individuals or groups on the other side
> of a Co$ lawsuit might benefit from and utilise this strategy. Be kind of
> hard for the Co$ to use this argument here, then fight a similar argument
> in another lawsuit. I'm sure Canada (or specifically Ontario) is not the
> only jurisdiction which limits juries (or other officers of the court) in
> some way.
If the cult could, it would limit juries to be free of abberation (clear
or above); wogs are just too aberrated to have a good sense of justice.
Ceon Ramon
In article <5191d1$1...@freenet-news.carleton.ca>,
Martin G. V. Hunt <av...@FreeNet.Carleton.CA> wrote:
>
>John Anonymous MacDonald (nob...@cypherpunks.ca) writes:
>> Scientology vs. Canada (Scientology in the News)
>>
>> The Monday, September 9th edition of the Montreal Gazette caries a report on
>> the Co$' ongoing battles with the Canadian justice system. The Co$ is claiming
>> the Ontario Juries Act is contrary to the Charter of Rights and Freedoms
>> because jurors are required to be Canadian citizens.
>
>ROTFL!
>
>I suppose we should allow Yank cult members to be on our juries!
Sure! Or any stray American. I don't know anything about Canadian law,
but I don't see why that should stop me from serving on a jury the next
time I pop up to Vancouver for burfi.
(I suppose they're referring to resident aliens. If there are scieno
staff who have worked at an org in Canada for nine months or so, they'd
certainly qualify as aliens, wouldn't they, seeing that they bring all
their BTs with them?)
--Barbara
Scott McClare
>In the attached post below, it states that Scientology is now appealing
>something in Canada. It looks like a criminal conviction of some sort,
>based on what I read below, but it is not detailed enough to know for sure.
>Unfortunately, the URL to the relevant article in the Montreal Gazette (from
>2 days ago) is no longer there so information is still lacking.
I intend to visit the library tonight anyway; while I'm there I'll
grab the Gazette if possible and summarize the contents.
Unfortunately, due to a recent move the only public library within
walking distance (*especially* for someone on crutches) is a satellite
branch and may not have the paper. Hopefully I'll have something this
weekend at any rate.
>Why hasn't this been discussed more closely on alt.religion.scientology?
>I guess everybody on a.r.s. is too enamored with CB's posts and arguing with
>each other over trivial things, than to look up and see the really profound
>events taking place in Canada.
Quite honestly, Jon, even when you live right here in Canada *and* are
interested in the cult, these things can slip by you. The only
newspaper I receive is the local one, which is NOT one of Canada's
major dailies, let alone the Montreal Gazette in particular. This is
the first time I've heard about this case.
I mean, how are we supposed to discuss profound events when we don't
realize profound events are taking place?
Scott
--
Scott A. McClare : I see you now and then in dreams
samc...@calum.uwaterloo.ca : Your voice sounds just like it used to
PGP 1024/E7950B29 : I believe I will hear it again
on keyservers or by request : God how I love you - M. Heard
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART THREE
[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
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Little Sisters of the Perpetually Juicy
http://www.magpie.co.uk/
alt.religion.scientology - Open for all the usual business
Sister Clara
The following 10 part article was posted by an entity with the revealing
identity of 'x'. I repost it for the benefit of all those who are wondering
about the background to the rumours of an appeal to be launched by
Scientology against the judgement in the Canadian court case.
Sister Clara
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 described 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 8 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.
Sister Clara
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.
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART TWO
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.
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART FIVE
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.
References:
1. Globe and Mail, May 11, 1994, p. A3. "1.6-million award upheld in
appeal: Court rules Church of Scientology 'set out to destroy'
government lawyer".
2. Globe and Mail. November 26, 1992, p. A10. "Scientologist's offices
mortgaged, court told: church accused of trying to make Toronto
operation judgement-proof".
3. Toronto Star, May 13, 1994, p. A14. "1.6m libel case settlement is
upheld".
4. Toronto Star, March 12, 1992, p. D26. "Judge adds $500,000 to record
libel award"
5. Globe and Mail, October 5, 1991, p. A9. "Lawyer awarded $1.6m for
libel: decision against Church of Scientology largest of its kind in
Canada".
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART SEVEN
Handling the Media
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." [1]
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 todayin 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." [2]
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." [3]
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:
- The court has the authority to make an order for a publication ban.
- The publicity resulting from the Anderson conviction proved the a
need for a publication ban.
- They had the right under s. 24(1) of the _Charter_ to make an
application for a media ban.
- The Provincial Court was a court of competent jurisdiction in which
to make such an application.
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 [1995],
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.
References:
1. Re Church of Scientology of Toronto et al. and the Queen (no. 6),
Canadian Criminal Cases vol. 27, p. 198.
2. Ibid, p. 200.
3. Ibid, p. 201.
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART FOUR
[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.
NOT GUILTY VERDICTS
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).
GUILTY VERDICTS
The Church of Scientology of Toronto was found guilty on charges
#7 (breach of trust, O.P.P.), and #11 (breach of trust, Attorney
General).
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
R.C.M.P. files.
SENTENCES
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 submitted statements to the
court showing that its liabilities exceeded 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).
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART ONE
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."
Sister Clara
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 134 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 market 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 probable 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. An 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 confessional 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
Sister Clara
SCIENTOLOGY HISTORY IN TORONTO, PART TEN
(The Trial, 1992)
[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." [1]
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". [2] 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." [3]
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. [5]
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". [6] 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". [7] "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." [8] He
said he was given a list of 12 agencies that he was expected to
infiltrate. [9] As the operation proceeded, the target list grew to
"probably a few dozen" agencies and individuals, he said. [10] 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. [11]
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. [9]
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.
[12]
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.
[13]
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. [14]
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. [15]
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.
Reference:
1. "R. v. Church of Scientology of Toronto", Canadian Rights Reporter
(2d), vol. 9, p. 223.
2. Ibid., p. 226.
3. p. 230-231.
4. "R. v. Church of Scientology of Toronto", Canadian Criminal Cases
(3d), vol. 74, p. 341-353.
5. "R. v. Church of Scientology of Toronto et al.", Canadian Rights
Reporter (2d), vol. 9, p. 232.
6. "Ruby outlines case for Scientologists", Globe & Mail, April 22,
1992, p. A13.
7. "Church wanted files, trial told". Globe & Mail, April 23, 1992,
p. A17.
8. "Scientologists infiltrated RCMP, Ontario government, trial told",
Winnipeg Free Press, April 23, 1992, p. A9.
9. "Scientology trial hears of intrigue and 'plants'", Toronto Star,
May 16, 1992, p. A19.
10. "Scientology spies had many targets", Halifax Chronicle Herald,
May 2, 1992, p. D27.
11. "Scientologists planted moles in RCMP, trial told", Globe & Mail,
May 5, 1992, p. A15.
12. "Scientologist takes responsibility", Globe & Mail, May 28, 1992,
p. A15.
13. "Allegations outrageous, court told", Globe & Mail, 29 May 1992,
p. A15.
14. "Crimes outraged church trial told", Toronto Star, May 29, 1992,
p. A26.
15. "Organization hiding behind members, court told", Globe & Mail,
June 20, 1992, p. A17.
16. "Church of Scientology fined $250,000 for espionage", Globe & Mail,
Sept. 12, 1992, page 1.
spbill
In article <3739...@holsoft.demon.co.uk>,
Sister Clara <cl...@holsoft.demon.co.uk> wrote:
> SCIENTOLOGY HISTORY IN TORONTO, PART TEN
>
> (The Trial, 1992)
>
> [This is the last in the series]
>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.
>Defence lawyer Clayton Ruby did not deny that crimes had been
>committed, but he maintained that the wrong people were at trial.
>[6] Ruby said the prosecution witnesses could not be believed,
>because they had all taken special training in how to lie.
The prosecution witnesses were ex-Scientologists!
Don'tcha just love it?
spbill
Your SP Declare is waiting for you at the end of the Bridge.
Sign up now for your next step.
Steve A
ce...@u.washington.edu (Ceon Ramon) wrote:
>Sure! Or any stray American. I don't know anything about Canadian law,
>but I don't see why that should stop me from serving on a jury the next
>time I pop up to Vancouver for burfi.
That reminds me. Can we start having burfi at the ARSCC meetings?
Perhaps you could pick up a couple hundredweight while you're
there, Ceon - you'll be reimbursed.
Oh, and get a few kilos of the carrot halwa and plenty of pera,
too.
--
ObURLS:
Beginners: http://www.tiac.net/users/modemac/cos.html
In-depth: http://www.cybercom.net/~rnewman/scientology/home.html
Harassment: http://www.cybercom.net/~rnewman/scientology/harass/timeline-95.html
Fools, losers, and mugs: http://www.scientology.org
--
SP4, GGBC, KBM, Unsalvageable PTS/SP #12
Support the Campaign For Free-Range Body Thetans. Ban dressage.
"Scientology will NEVER declare me."
- clearbaby, 10 Sep 96: famous last words?
IN MEMORIAM: Richard Collins, victim of the criminal cult of Scientology
IN MEMORIAM: anon.penet.fi, rema...@utopia.hacktic.nl, victims of the
criminal cult of Scientology.