Since some of the materials which describe the $cientology cult could be
considered to be copywritten materials, I have censored myself and The
Skeptic Tank by deleting any and all possible text files which describes
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From news.interserv.net!news.sprintlink.net!howland.reston.ans.net!swrinde!hookup!interlog.com!io.org!nobody Mon Jul 10 17:02:30 1995
From: email@example.com (x)
Subject: Scientology in Toronto  [Repost]
Date: 8 Jul 1995 03:18:31 -0400
Organization: Internex Online (Data: 363-3783/Telnet: io.org)
SCIENTOLOGY HISTORY IN TORONTO, PART EIGHT
(Jan. 30, 1987)
On July 5th, 1985 Motions Court (Supreme Court of Ontario) ruled that
the warrants to search Scientology were valid, but that much of the
material seized should be returned. Scientology appealed on the basis
that, in their view, the warrants were invalid, and that furthermore
they felt that a church should be immune to criminal prosecution. The
Crown cross-appealed on the basis that, in its view, the order to return
the seized property was incorrect. The issues were the same as before
Motions Court, but in this case the three-member panel of Judges
Lacourciere, Goodman, and Finlayson examined them in "microscopic
detail". 113 precedents were examined, as well as 9 statutes and 18
books. In addition to the defendants, a number of other Scientologists
applied, on the basis that their confidential pre-clear folders should
have been immune from a search. A list of the 133 applicants is given
at the end of this article.
BOTTOM LINE: The appeal was dismissed. The cross-appeal was allowed.
The search warrants were valid; the detention orders were valid; the
order to return the seized documents was set aside.
Here are the legal arguments...
A major issue of contention was the proposed charge #2, listed in the
information which accompanied the application for a search warrant. The
charge included these words:
"...did defraud the public, more specifically persons to whom
Scientology made representations concerning the qualities of and
benefits receivable from, courses, including the Purification
Rundown, and from E-Meters, for sale at costly prices in no way
related to the real value of such things, such things being without
the represented benefits, thus by deceit, falsehood or other
fraudulent means defrauding such persons of money, property or
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." 
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
"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
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. 
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." 
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
The applicant for the search warrant had supported his request by
stating that Scientology employs hard-sell salespersons called "Regs"
[registrars]. Scientology alters its set fee schedule regularly to
accord with what the markey will bear. Its staff receives very little
compensation and is committed to contracts for a minimum of 2 or 2 1/2
years, and for as long as 1,000,000 years. The courses are said to be
highly priced, misrepresented as to quality and designed to indebt the
employee to Scientology through the signing of promissory notes. 
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
- to the use of "arcane" language
- to the inclusion of personal opinions and conclusions of the police
- to the use of hearsay evidence from confidential informants
In all of these matters, the Appeals Court was in accord with the
rulings of Judge Osler in Motions Court.
Scientology also objected to an alleged lack of particularity in the
description of things to be searched and seized, in particular to class
designations of documents. They contended that the search warrant
descriptions were broad, vague and inclusive, and asserted that a test
of "scrupulous exactitude" should be applied by the court. This
prompted an explanation by the Appeals Court of the difference between
the American and Canadian limits on searches.
The United States Fourth Amendment states:
"The rights of the people to be secure and their persons, houses,
papers and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue but upon probably cause,
supported by oath or affirmation, and PARTICULARLY DESCRIBING THE
PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."
By contrast, the Canadian Charter of Rights and Freedoms, section 8,
"Everyone has the right to be secure against unreasonable search or
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." 
"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." 
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
The question of privileged documents was considered. The court noted
that the appellant's argument could be reduced to a syllogistic form:
1. Before authorizing the issuance of a warrant, a justice must be
satisfied that there is something which will afford evidence with
respect to the commision of a crime.
2. However, privileged documents are inadmissable and can never afford
such evidence, unless the documents are specifically alleged to
facilitate the crime.
3. Therefore, as no specific allegation was made in this case, the
privileged documents are incapable of affording evidence.
4. This being the case, the issuing judge therefore had no jurisdiction
to issue the warrant, so the property must be returned and the
warrant must be quashed.
With regards to documents subject to solicitor-client privilege, the
Appeal Court agreed with the ruling of the lower court. A extensive
consideration was given to the claimed priest-penitent privilege. An
affidavit had been presented to court in which Jean Carnahan had sworn:
" 1. I am a staff member of the Church...
10. that the practice of the Church of Scientology is to absolutely
respect the confidentiality of the documents contained within
the pastoral counselling files which reflect the priest-penitent
communication given in an expectation of confidentiality. The
Church would never countenance their distribution outside the
Church or to those not authorized within the Church and every
parishoner understands his pastoral counselling communications
will forever be kept confidential within the Church."
(signed) 3 June 1987
Counsel for Scientology then cited the authoritative work, _Wigmore on
Evidence_, which sets four conditions for a privileged document:
" 1. The communications must originate in a confidence that they will
not be disclosed;
2. This element of confidentiality must be essential to the full
and satisfactory maintenance of the relation between the
3. The relation must be one in which the opinion of the community
ought to be sedulously fostered; and
4. The injury that would inure to the relation by the disclosure of
the communications must be greater than the benefit thereby
gained for the correct disposal of litigation."
Court noted that statutory sacerdotal privilege exists in Quebec,
Newfoundland, New Zealand, three Australian states and forty-six
American states. However, that statutes differ significantly. Some
restrict the types of communication protected; others require that the
communication be made to an ordained minister. The Crown pointed out
that the governments of Canada, Ontario and England had recently
considered their positions with respect to confession communications,
and all three had expressly declined to recommend enactment of statutes
to extend the privilege.
The court concluded that there is no recognized class privilege accorded
to the priest penitent relationship. The right to freedom of religion
guaranteed in s. 2 of the _Charter_ is absolute only with respect to
belief. With respect to practice, it is not absolute, and the
_Charter_'s applicability must be determined on a case by case basis.
Therefore, the question of privilege, and the alleged violation of s.2
of the _Charter_ were matters which went to the jurisdiction of the
warrants, and should have been considered by the Motion Court judge.
The court noted that the affidavit evidence by Carnahan to support the
religious nature of the folders had been rejected by Judge Osler in a
decision of September 7, 1984, and that police evidence was that the
folders were prepared for secular and commercial use, and for the
purpose of handling difficult staff members. It was open to the judge
who issued the warrants to conclude that the information contained in
the files was elicited in furtherance of a criminal purpose. Thus
Wigmore's third and fourth criteria would not be met, and regardless,
the common law exception to all claims of privilege would apply by
reason of a _prima facie_ case of criminality.
This being the case, it is the responsibility of the judge or justice of
the peace who issues the warrant to set out procedures for the execution
of the warrant which reconcile the public interest with the interests of
the claimed priviliege. In the case of R. v. Scientology, considering
the Guardian Office raid protection mechanisms, and the fact that
Scientology itself is named as having committed the offences, there was
"no reasonable alternative" to obtaining the information sought. 
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
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.
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),
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