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«The goal of the Department is to bring the government and hostile philosophies or societies into a state of complete compliance with the goals of Scientology. This is done by high level ability to control and in its absence by low level ability to overwhelm. Introvert such agencies. Control such agencies. Scientology is the only game on Earth where everybody wins.» — L. Ron Hubbard, HCOPL, 15 August 1960, "DEPT OF GOVT AFFAIRS"
(Church of) Scientology
History in Toronto, Part One
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;
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 Canadian
Criminal Cases (C.C.C.) vol. 13, p. 93.
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. 
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." 
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." 
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." 
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 omission. 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."  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". 
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 , 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.
Reports, Vol. 47 (2d), p. 86-90.