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."
--------- 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.
------------ 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.
Attorney General for the
Province of Ontario
---------- 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
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
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).
-------------- 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.
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".
----------- 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.  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"
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 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."  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.
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.
--------- 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."  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."  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."  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 ,
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.
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.
------------ 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."  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."  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 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.  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."  "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 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.  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.
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 ---------------- 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. 
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". 
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".  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.     
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.  
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
 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
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.  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."  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".  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."  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."  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."  NONE of the seized documents could be used as evidence in the trial.
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.
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."  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".  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."  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.  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".  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".  "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."  He said he was given a list of 12 agencies that he was expected to infiltrate.  As the operation proceeded, the target list grew to "probably a few dozen" agencies and individuals, he said.  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.  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.  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.
 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.
 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. 
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.  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.
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.
From: ptsc <email@example.com>
Subject: Scientology Criminal Conviction from Canada
Date: Sat, 28 Oct 2000 20:35:47 -0400
Organization: ARS: Perhaps The Most Malignant Newsgroup on Usenet
COURT OF APPEALS C13047 NOT TO BE REMOVED C13207 FROM THIS OFFICE COURT OF APPEALS FOR ONTARIO ROBINS, LASKIN and ROSENBERG JJ.A.
BETWEEN: ) Clayton Ruby and Marlys Edwardh ) for the appellant, Church of ) Scientology of Toronto ) HER MAJESTY THE QUEEN ) John Norris ) for the appellant, Jacqueline Matz Respondent ) ) Michael Bernstein and ) Renee Pomerance for the Crown, -and- ) respondent ) ) Frank Addario and Peter Rosenthal CHURCH OF SCIENTOLOGY OF ) for the intervener, Dudley Laws TORONTO and JACQUELINE MATZ ) ) Roslyn J. Levine, Q.C.
Appellants ) for the intervener, Attorney General ) of Canada ) ) Linda McCaffrey, Q.C.
) for the Ministry of Consumer and
) Commercial Relations
) Heard: September 9, 10, 11, 12, 13,
) 16 and 17, 1996
TABLE OF CONTENTS Page I. INTRODUCTION 1 A. Overview of the Case 1 B. Verdict at Trial 2 C. Theories of the Parties 2 D. Corporate Management Structure 4 E. Crown Witnesses 8 F. Defence Witnesses 12 G. The Breach of Trust Counts 13 1. Breach of Trust at Ontario Provincial Police 14 2. Breach of Trust at Ontario Ministry of the Attorney General 14 H. Pre-Trial Motions 16 I. Grounds of Appeal 16 II. ORDER OF CLOSING ADDRESSES 17 III. SIMILAR FACT EVIDENCE 18 IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE 20 V. "REPLY" TO DEFENCE COUNSELS JURY ADDRESS 22 VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES 22 A. Adequacy of the Vetrovec Warning 24 B. Confirmatory Evidence 27 VII. DISCLOSURE 29 -i-
VIII. EXCLUSION OF SECONDARY EVIDENCE 38 A. The Motion to Exclude the Primary Evidence 38 B. The Motion to Exclude the Secondary Evidence 42 C. Analysis 47 1. Causation 47 2. Fairness of the Trial 48 3. Seriousness of the Charter Violation 49 4. The Administration of Justice 52 IX. ELIGIBILITY FOR SERVICE ON A JURY 54 A. Introduction 54 B. Selection of a Jury in Ontario 55 C. The Challenge at Trial to the Array 58 D. Positions of the Parties on Appeal 61 E. The Interveners 62 F. Analysis 63 1. Standing to Make a s. 15 Challenge 65 2. Section 15 Rights of the Appellant Matz 71 3. Section 7 of the Charter 73 4. The Right under the Common Law and the Criminal Code to a Properly Constituted Jury 76 5. Section 11 of the Charter 78 6. Exclusions Based on Occupation and Marital Status 91 X. CORPORATE CRIMINAL LIABILITY 93 A. Introduction 93 B. Application of the identification Doctrine to a Non-Profit Religious Corporation 94 1. The Facts 94 2. Ruling of the Trial Judge 97 3. The Issue 97 4. Analysis 98 (a) The Identification Doctrine 98 (b) Does the Identification Doctrine Apply to Non-Profit Corporations? 100 (c) Sections 7 and 11(d) of the Charter 104 (d) Section 2(a) of the Charter 107 -ii-
(e) Section 1 of the Charter 113 (i) Objective 115 (ii) Rational Connection 115 (iii) Minimal Impairment 116 (iv) Proportionality of Effects 122 (f) Section 2(d) of the Charter 123 XI. APPLICATION OF THE IDENTIFICATION DOCTRINE TO THIS CASE 124 A. The Application of The Rhone 124 B. Trial Judge's Direction on Corporate Criminal Liability 130 XII. SENTENCE 134 A. Introduction 134 B. The Seriousness of the Offence 135 C. Remorse 137 D. Treating the Appellant as a Discrete Entity 140 E. General Deterrence 141 XIII. DISPOSITION 143 -iii-
1. INTRODUCTION A. Overview of the Case On June 25, 1992, the Church of Scientology of Toronto and Jacqueline Matz were each convicted of two counts of breach of trust contrary to s. 111 of the Criminal Code. R.S.C. 1970, c. C-34 (now R.S.C. 1985, c. C-46, s. 122) following a trial before Southey J. and a jury. The Church of Scientology of Toronto was fined $250,000 and Jacqueline Matz was fined $5,000 The Church of Scientology of Toronto appeals both the convictions and the sentence. Jacqueline Matz appeals the conviction only.
The charges arose from activities conducted by the intelligence
Bureau within the Guardian's Office, a management arm of the
Church of Scientology of Toronto. Between 1974 and 1976,
secured employment with government agencies perceived to be enemies of
the Church, and signed oaths of secrecy as public officials. In breach
of their oaths of office, they then took copies of confidential
from the agencies that employed them and provided them to the Church
of Scientology of Toronto. The appellant Jacqueline Matz, was a "Case
Officer" and "Director of Operations", and was responsible for
supervising the agents who had been planted in the various government
agencies and other organizations.
-2- B. Verdict at Trial The indictment originally included twelve counts, consisting of seven counts of theft and five counts of breach of trust. The theft counts related to theft of documents from government agencies and other organizations. The breach of trust counts related only to government agencies. As a result of a pre-trial ruling excluding certain evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, the Crown was left with no admissible evidence on the theft counts. These charges were severed from the indictment, and acquittals were entered. The jury convicted the appellants of breach of trust in relation to the Ontario Provincial Police and the Ministry of the Attorney General of Ontario. The appellants were acquitted on a second count involving the Ontario Provincial Police and on charges relating to the Metropolitan Toronto Police and the Royal Canadian Mounted Police.
C. Theories of the Parties
This is was a long and complex trial in which virtually everything
was in issue. Many of the same issues now form grounds of appeal. In
summary, it was the position of the Crown that the appellant Church
of Scientology of Toronto, a non-profit religious corporation, had
authorized members of the Church to infiltrate government agencies
and other organizations such as the Canadian Mental Health Association
in order to obtain
-3- information that would be of use to the Church. It was the Crown's theory that the appellant perceived that it was under attack by these organizations. The appellant resorted to the "plant" operations when other more direct means, such as break and enter, were judged to be too dangerous. These operations were run by Jacqueline Matz out of the Intelligence Bureau which was an arm of the Guardian's Office within the Church. The Crown relied on the doctrine of corporate criminal liability as explained in Canadian Dredge & Dock Co., Ltd.
v. The Queen,  1 S.C.R. 662, which, subject to certain conditions, holds a corporation liable for the acts of certain of its agents.
It was the position of the appellant, the Church of Scientology
of Toronto, that it was not legally responsible for the actions of
its "renegade members" in the Guardian's Office who had failed to
follow Church doctrine. The appellant contended that the
information-gathering functions carried out by the Guardian's
Office in Toronto were assigned to it by the Church of Scientology
of California (U.K.) (Guardian Office World Wide), not by the Church
of Scientology of Toronto. The appellant also made the broad
that the doctrine of corporate criminal liability does not apply to
non-profit religious corporations.
-4- The appellant Matz did not testify. The theory of her defence was based on gaps in the Crown's case with respect to each of the counts.
In relation to the charge involving the O.P.P., she argued that there was no breach of trust since the information obtained by the agent was unimportant. With respect to the count involving the Ministry of the Attorney General, she argued that the Crown's evidence was unreliable and that, in one of the incidents relied on by the Crown, no confidential information seems to have been obtained.
D. Corporate Management Structure A critical aspect of this appeal concerns the application of the doctrine of corporate criminal liability to a non-profit religious corporation. The application of the doctrine is complicated by the unconventional corporate structure adopted by the various corporate members of the Church of Scientology, including the Church of Scientology of Toronto.
At the time material to this case, the Church of Scientology was a world wide organization with hierarchical structure. L. Ron Hubbard, the Founder, stood at the top of the hierarchy in England.
Second in command was Mary Sue Hubbard, the Controller. Directly
beneath her was Jane Kember, the Guardian. Below these officials,
-5- organizations were separately incorporated in various cities throughout the world. The Church of Scientology of Toronto was one such organization.
The Church of Scientology of Toronto was incorporated as a corporation without share capital on September 8, 1967 under the Ontario Corporations Act, R.S.O. 1960, c. 71 (now R.S.O. 1990, c. C.38). The administration of the corporation and, indeed, of all Scientology organizations, was dictated by a series of policies written by the Founder. L. Ron Hubbard.
These policies governed a variety of administrative matters, including the command and communication channels, the positions within the organization and the division of responsibilities among Scientology officials.
The Church of Scientology of Toronto was managed through two command
structures. The FLAG Bureau, which was part of the Sea Organization,
was responsible for the day-to-day delivery of Scientology services to
the public at the local Toronto organization ("Org"). The Org was
the management and control of an Executive Director. The Executive
Director received direction from his seniors in the FLAG Bureau
network, who received direction from L. Ron Hubbard.
-6- The other management structure was the Guardian's Office. Its purpose was to help L. Ron Hubbard enforce and issue policy to safeguard Scientology organizations. Like the FLAG Bureau, the Guardian's Office was run along hierarchical reporting lines. The Guardian's Office Toronto reported to the Guardian's Office Canada, which in turn reported to the Guardian's Office World Wide, and ultimately to L.
Ron Hubbard. Directions were sent "down-lines" through the same structure.
Like the Guardian's Office World Wide and the Guardian's Office Canada, the Guardian's Office Toronto was comprised of four bureaus, each of which was delegated a specific sphere of managerial authority.
These bureaus were: the Legal Bureau, the Finance Bureau, the Public Relations Bureau and the Intelligence Bureau. The purpose of the Intelligence Bureau was to find out about those whom L. Ron Hubbard had identified as Scientology's enemies so that attacks could be diverted before they became public issues. When he established the Guardian's Office, L. Ron Hubbard issued a policy letter entitled "The Guardian", which assigned intelligence functions to that office, and described the purpose of intelligence in colourful terms:
By such studies one can predict which way cats are going
to jump and organize to meet situations which may threaten
Scientology from possible enemies or to take advantage of
situations which might benefit Scientology.
-7- The Intelligence Bureau of the Guardian's Office Toronto carried the plant operations that were the subject-matter of the charges.
On the theory of the Crown, while the two management structures, the FLAG Bureau and the Guardian's Office, had different functions, both were integral to the operation of the Church of Scientology of Toronto.
Although the local Guardian's Office took direction from, and reported to, its senior officials in England, it exercised a senior management function within the local Church. The management of the local Org could not tell the Guardian's Office what to do; in contrast, the Guardian's Office could, and did, give orders to local management regarding the safety and security of Scientology. The operations of the Guardian's Office Toronto were financed by money collected by the local Org.
On the theory of the appellant Church, the Guardian's Office was
separate from the Church of Scientology of Toronto. It was autonomous
and self-ruling and not fixed to any local Church of Scientology. It
had its own doctrine and policy. In particular, the appellant argued
that the intelligence operations were conducted secretly, without the
knowledge of the Church of Scientology of Toronto.
-8- E. Crown Witnesses The main witnesses called by the Crown at trial were five former members of the Church of Scientology. Four of these witnesses occupied senior management positions in the organization at the time of the offenses. They participated in and, in some cases, directed the illegal activities of the Guardian's Office Intelligence Bureau. They testified under the protection of immunity agreements that required that they disclose fully and truthfully their knowledge about the offences before the court. These witnesses were:
(i) Bryan Levman, former Deputy Guardian Canada who was responsible for all of the activities of the Guardian's Office in Canada;
(ii) Emile Gilbert, former Executive Director of the Church of Scientology of Toronto who after being removed from this position in the Church, became an agent for the Guardian's Office Canada;
(iii) Kathryn Smith, who worked as a plant at the Ontario Provincial Police for the Guardian's Office Canada Intelligence Bureau;
(iv) Dianne Fairfield, who held various positions within the
Guardian's Office Canada Intelligence Bureau; and
(v) Marion Evoy, Deputy Guardian Intelligence Canada who was
responsible for the direction of the individuals who were
plants in organizations at the time of the offences.
-9- The above witnesses testified about various matters, including the corporate management structures within the Church of Scientology of Toronto; the role and function of the Guardian's Office within the Church of Scientology of Toronto; the structure and functioning of the Guardian's Office Intelligence Bureau; and the specifics of the plant activities that were the subject-matter of the charges.
It is unnecessary to set out in detail the evidence of each of these witnesses. However, the evidence of Bryan Levman man was of particular importance to the Crown's theory of corporate liability, and requires some elaboration. Mr. Levman established the first Guardian's Office in Canada in 1970 when he was appointed Assistant Guardian Toronto. At that time, the Church of Scientology of Toronto was the only Scientology organization in Canada. The Guardian's Office Canada was under the authority of the Guardian's Office United States. In 1973, the Guardian's Office Canada was removed from the authority of the United States and began reporting directly to the Church officials in England, Church of Scientology of California (U.K.). Mr. Levman became the Deputy Guardian Canada and reported to the Guardian World Wide in England.
Between 1971 and 1973, there was no separate Guardian's Office Toronto.
The Guardian's Office Toronto was established late in 1973 and was
by an Assistant
-10- Guardian. The of Guardian's Office Canada and the Guardian's Office Toronto were in the same building in the Church of Scientology premises in Toronto. Most of the work conducted by the Guardian's Office Canada related to the Church of Scientology of Toronto. Although official appointments of staff to the Guardian's Office Toronto came from the Guardian's Office World Wide, they were selected from individuals working in the Toronto Org.
As required by the Corporations Act, the appellant Church had a board of directors. In the early years, senior officials within the Church held positions on the board. Mr. Levman, for example, was president from 1969 to 1973. Mr. Levman testified, however, that the board of directors exercised no executive or management function.
According to him, the corporate structure as set out in the filings for government purposes was irrelevant. The true management authority lay in the Guardian's Office and the FLAG Bureau. Further, the choice of directors was made by the Guardian's Office.
As noted above, within the Guardian's Offices Toronto and Canada there were several different bureaus including the Intelligence Bureaus.
Although the Intelligence Bureau of the Guardian's Office Canada
was responsible for Canada-wide intelligence gathering most of
the intelligence operations were focused in Toronto. The Canada
-11- Intelligence Bureau therefore worked closely with the Toronto intelligence Bureau. The Deputy Guardian Intelligence Canada, Marion Evoy, reported to the Deputy Guardian Canada, Bryan Levman.
In June and July of 1973, Mr. Levman went to the Guardian's Office World Wide in England. While there, he confirmed that the intelligence-gathering techniques could include "rip-offs", that is, the placing of agents and the theft of files. The Guardian World Wide, Jane Kember, identified targets. She was particularly interested in the O.P.P., the Ministry of the Attorney General and the Metropolitan Toronto Police. She made it Mr. Levman's mandate to obtain files from these organizations. After returning to Canada in the fall of 1973, Mr. Levman took steps to implement the Guardian's instructions. He evaluated candidates to be planted in the "enemy" organizations. The plant operations were under the purview of the Intelligence Bureau of the Guardian's Office Toronto. Mr. Levman and Ms. Evoy both received reports on the activities of the plants.
An important event leading to the use of plants rather than more
direct illegal means was the arrest of Alan Coulson and Michael
Chornopesky in April 1974. They were arrested while attempting to
into a law firm that was acting for former members of Scientology who
were engaged in litigation with the Church. Levman had ordered this
-12- break-in as he was to be a witness on an examination for discovery the following day. When the examination for discovery took place, Levman was asked if he knew Coulson. Levman lied and denied knowing him. Mr.
Levman and others took elaborate precautions to erase any connection between Coulson and Chornopesky and Scientology. After this incident, Jane Kember instructed Levman and Evoy not to conduct break and enters.
Instead, they were to plant trusted Scientologists within the enemy organizations.
The Crown also called as witnesses individuals from the various organizations that had been the targets of the plant operations. These individuals testified about the employment history and duties of the individuals whom the Crown alleged to be Scientology plants. In addition, in many instances, these witnesses were able to confirm that their confidential files did, in fact, contain documents and information that other Crown witnesses reported having been obtained by Scientology plants.
F. Defence Witnesses
The appellant Church called a number of witnesses at trial,
the former Guardian World Wide, Jane Kember. She testified that she
authorized the illegal activities that were carried out by the
Office Toronto. The bulk of her evidence,
-13- however, was that illegal activities were a fraud on the of Scientology of Toronto and the other Churches of Scientology. She testified that she abused Church doctrine and the original mandate set out by Mr.
Hubbard in "The Guardian". She drew a distinction between the Church of Scientology of Toronto and the Guardian's Office. It was her view that the local Church could not authorize the Guardian's Office to commit illegal acts. The two command structures were not connected, and the local Church had no "command value" over the Guardian's Office.
To the contrary, the Guardian's Office had the ultimate power. Its activities were kept secret from the local Church.
G. The Breach of Trust Counts
The breach of trust convictions arose from intelligence operations
carried out by the Guardian's Office Intelligence Bureau and directed
at the O.P.P. and the Ministry of the Attorney General. In each
a plant was placed in the organization to acquire and make copies of
confidential documents. The unauthorized disclosure of information
acquired by the plant through his or her employment, constituted the
breach of trust. As indicated above, as the "Case Officer", Ms. Matz
directed the plants to files of interest and facilitated the
of confidential materials.
-14- 1. Breach of Trust at Ontario Provincial Police The O.P.P. were of interest to the Guardian's Office as it was believed that they were investigating Scientology. Cynthia Bake became a plant at the O.P.P. after being approached by a case worker for the Guardian's Office Intelligence Bureau. Ms. Bake was a "public person"
in the Church of Scientology of Toronto; she was not a staff member, but talking courses at the Toronto location. She obtained a clerk position with the O.P.P. Intelligence Branch in the general headquarters building. She swore an oath of office and secrecy, and worked in this capacity from May 1976 until November 1976.
As a plant, Ms. Bake reported to Jacqueline Matz. She testified at trial that she was pressured by Ms. Matz to find out what was in the O.P.P. files. She looked in the files, but could not find anything relating to Scientology. She took another piece of paper, which referred to the "Moonies", and gave it to Ms. Matz. Eventually, Ms.
Bake did not wish to continue acting as a plant, and she resigned.
2. Breach of Trust at Ontario Ministry of the Attorney General The breach of trust at the Ontario Ministry of the Attorney General involved a second plant. Janice Wheeler was a Scientologist who worked in the Toronto Organization and had been trained as a legal secretary.
In 1974, she secured employment as a secretary
-15- with the of Attorney General in the Director of Crown Attorneys branch.
She provided several internal memoranda, sent between people in the Attorney General's office, to the Guardian's Office Intelligence Bureau.
In total, Ms. Wheeler obtained approximately two to three file folders of documents from the Attorney General's office.
Janice Wheeler testified at trial that, as a result of her employment, she had access to a key that would open the door to the archives in the basement of the Attorney General's office. On three separate occasions, Scientologists gained access to the archives to search for files on Scientology. On one occasion, Ms. Evoy, the Deputy Guardian Intelligence Canada, removed a file from the archives and sent it to the Deputy Guardian Intelligence Office United States. The file was later discovered by the F.B.I. during a search of the Scientology premises in the United States.
Ms. Evoy described another incident where she met Janice Wheeler at the Attorney General's of office. After all the staff had left, Ms.
Wheeler took her inside and the two of them looked for files relating
to the Church of Scientology. Ms. Evoy testified that they searched in
the office of Donald MacKenzie, who was a lawyer responsible for some
matters involving Scientology. Nothing was taken on this particular
-16- Ms. Evoy described other occasions when she obtained Ministry files directly from Janice Wheeler. At one point, the two met in the bathroom at the office, and Ms. Wheeler gave Ms. Evoy a file relating to the Church of Scientology. Ms. Evoy copied the file and returned it to Ms.
Wheeler so that it court be returned to the Ministry.
H. Pre-Trial Motions The trial judge heard several pre-trial motions in this case. Some of the motions are relevant to the grounds of appeal now raised by the appellants. In particular, the motions concerning exclusion of evidence, adequacy of Crown disclosure, and jury selection, will be dealt with under the relevant ground.
I. Grounds of Appeal Counsel for the appellants advanced numerous grounds of appeal, some of which were abandoned at the hearing. The principal remaining issues in the appeal are:
(i) whether the jury was properly constituted having regard to
the exclusion of certain persons, such as non-citizens, from
-17- (ii) whether the identification doctrine of corporate liability as explained in Canadian Dredge & Dock applies to a non-profit corporation without share capital established for religious purposes; and (iii) whether there was sufficient evidence to meet the test for corporate criminal liability, and, alternatively, whether the jury was adequately directed with respect to corporate criminal liability.
We called on Crown counsel to respond to these issues as well as to the sentence appeal.
Before discussing these main grounds of appeal, I turn to several grounds of appeal that can be disposed of with brief reasons.
II. ORDER OF CLOSING ADDRESSES In her factum, the appellant Matz argues that the provisions of s.
651 of the Criminal Code that dictate the order of closing addresses
violate her rights under ss. 7 and 11 of the Charter. In view of the
decision of this court in R. v. Rose (1996), 28 O.R. (3d) 602, leave
appeal to Supreme Count of Canada granted February 7, 1997 (subsequent
-18- the hearing of this appeal), no oral submissions were made on this point. This ground of appeal fails.
III. SIMILAR FACT EVIDENCE The appellants submit that the trial judge erred in permitting the Crown to introduce evidence of criminal acts, other than those in the indictment, allegedly committed by members of the Church of Scientology of Toronto. For example, he permitted the Crown to lead evidence that staff from the Guardian's Office had broken into government offices and other organizations. Evidence was led about the arrest of the two Scientology members, Coulson and Chornopesky, who had attempted to break into a law firm that was acting for former members of Scientology engaged in litigation with the Church. Evidence was also led of an attempt to obtain a file from the Ministry of the Attorney General by impersonation of one of the Ministry's counsel.
In our view, the trial judge did not err by admitting this "similar act evidence". He initially held that this evidence was admissible as tending to show that the acts charged were committed with the knowledge and authority of the Church of Scientology of Toronto. The evidence was relevant to the issue of whether the Guardian's Office was acting on behalf of the corporate appellant. As this court noted in R. v.
et al, (No 1) (1981), 56
-19- C.C.C. (2d) 193 at 293, "Proof of the repetition of wrongful acts by the agents of a corporation may be sufficient to permit a jury to infer that the acts charged in the indictment were carried out with the knowledge and approval of those in charge of the corporation."
Some of the evidence, especially that relating to the arrest of Coulson and Chornopesky, was also admissible as part of the narrative to explain steps taken by the Guardian's Office in relation to the charged acts.
By the end of the case, the trial judge had concluded that this evidence was not relevant to any issue in dispute and he instructed the jury accordingly. For example, the trial judge directed the jury as follows:
The Crown has led evidence of other criminal acts alleged to have
been done by Scientologists. I have not referred to this evidence,
because, if believed, it goes no further than to show that the
criminal acts were committed with the authority of the Guardian
Office in Toronto, and it was for that purpose that I permitted
this similar fact evidence to be given. _But that evidence throws
no light one way or the other on the point to issue as to whether
the persons in the Guardian Office in Toronto were acting within
the field of operation of Church of Scientology of Toronto that
had been assigned to them._
Now, there is a very important point that I asked you to keep in
mind respecting this evidence of other criminal acts. You must not
rely on this evidence as evidence that Church of Scientology of
Toronto had a propensity to condone or authorize criminal offences,
and so was likely to have authorized the criminal acts
-20- with which it is here charged. _You should not rely on this evidence of other criminal acts in any way in determining the guilt or innocence of the individuals accused in any of the counts before you. It can only be used by you for the limited purpose I have explained, in determining the guilt or innocence of the corporate accused, the Church of Scientology of Toronto. And I repeat, in my view it does not advance the case there,_ because it only takes you to the Guardian Office, and then you are faced with the question:
Was the Guardian Office the directing mind of Church of Scientology of Toronto in a field of operation assigned to it? And was it not totally in fraud of that corporation? And was it, by design or result, for the benefit of that corporation?
[Emphasis added.] Similar forceful directions to ignore this evidence on the issue of corporate criminal liability were repeated on several occasions.
The appellants were not unfairly prejudiced by the admission of this evidence. In fact, the trial judge's instruction to the jury to ignore this evidence was overly favourable to the appellants. This ground of appeal fails.
IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE
Mr. Ruby argues that the trial judge repeatedly and forcefully
expressed his opinion on the central issues in the case, and usually
in a manner favouring conviction. In
-21- our view, is not a fair characterization of the charge to jury when it is read as a whole. Mr. Ruby takes specific exception to thirteen comments by the trial judge in the course of the lengthy charge.
However, when those comments are considered in context, it is apparent that they did not deprive the appellants of a fair trial. This was a lengthy case with a number of complex issues. It was entirely appropriate for the trial judge, where possible, to simplify the issues for the jury. Many of the comments about which the appellants complain concerned issues that were relatively non-controversial;
other comments were part of a balanced review of the evidence; still others, when examined in context, actually favoured the defence position.
It is well established that a trial judge has considerable latitude
to offer opinions in the charge as long as it is made clear to the
jury that they are the sole judges of the facts and that they are
free to reject the trial judge's opinion. See R. v. A.W.E.,  3
S.C.R. 155. In this case, the trial judge repeatedly stressed to the
jury that they were not bound by any of his expressions of opinion on
matters of fact. On all but one occasion to which objection is taken,
he specifically cautioned the jury that they were not bound by his
opinion and that it was a matter for them to decide. The one
instance in which the trial judge did not so caution the jury was a
question of fact concerning the relationship between the Guardian's
Office Canada and the Guardian's Office Toronto. That relationship
-22- seriously in dispute in the case. Moreover, in the one area of the case where the distinction was of some import, a plant in the R.C.M.P.
in Ottawa, the jury acquitted the Church. This ground of appeal fails.
V. "REPLY" TO DEFENCE COUNSEL'S JURY ADDRESS Mr. Ruby argues that the trial judge engaged in "contentious argument" during his charge by responding to certain remarks in defence counsel's jury address. In our view, the trial judge's comments were not inappropriate. Indeed, they were necessitated by certain statements by defence counsel that were legally incorrect or would have had the effect of diverting the jury from the real issues in the case. This ground of appeal fails.
VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES
Mr. Norris makes a number of submissions with respect to the trial
judge's charge to the jury on the credibility of the principal
Crown witnesses. Five of these witnesses, Bryan Levman, Emile Gilbert,
Kathryn Smith, Dianne Fairfield and Marion Evoy, had formerly been
members of Scientology and testified under the protection of immunity
-23- In 1983, Mr. Levman, Mr. Gilbert and Ms. Smith were declared "suppressive persons", and expelled from Scientology. When they learned that the police were investigating the Church of Scientology of Toronto, they became concerned that they would be charged with criminal offences. In early 1984, they entered into immunity agreements with the authorities, which provided that they would not be prosecuted for any offices arising out of the investigation, on the condition that they would fully disclose their involvement with the Church and testify accordingly.
Dianne Fairfield was removed from her post as Assistant Guardian Social Coordination in Toronto in 1982 after admitting to representatives of the FLAG Bureau that she had been involved in criminal activities.
In the fall of 1984, she entered into an immunity agreement with the authorities. Although the agreement was similar to that of the other witnesses, it included the additional condition that her information advance "in a material fashion, the information obtained from previous witnesses."
In 1981, while Marion Evoy was the Deputy Guardian Canada, she was
investigated by members of the Sea Organization and required to enter
into a programme of confession and punishment because of her
in illegal acts. She was told to write out a list of her actions and
admit, in writing, that she was responsible for all of the actions
-24- she had directed. Ms. Evoy gradually withdrew from the Church and, in the fall of 1984, entered into an immunity agreement similar to that of Ms. Fairfield.
Mr. Norris argues that the trial judge did not give an adequate warning as to the danger of relying on the evidence of the Crown witnesses, as required by R. v. Vetrovec,  1 S.C.R. 811. Mr.
Norris also argues that the evidence relied on by the Crown to confirm the testimony of the Crown witnesses did not in fact do so. We only called upon Crown counsel to respond to the latter argument.
A. Adequacy of the Vetrovec warning In Vetrovec, Dickson J. held that where the trial judge decides that some caution should be given to the jury about the evidence of suspect witnesses, no particular rule, formula or direction must be followed.
He held at p. 831 that what may be appropriate is a "clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness."
Mr. Norris submits that the language used by the trial judge in this
case did not accomplish this task. He points out that the trial judge
told the jury that they "may consider"
-25- that they required some confirmatory evidence before accepting the testimony of the five suspect witnesses.
In our view, examination of the charge as a whole reveals that the jury was adequately warned of the danger of accepting the witnesses' testimony. The trial judge reviewed the various factors that would cause the jury to be cautious, and pointed out the following:
(i) the five witnesses had all participated in the allegedly illegal acts, and despite their significant role, had not been prosecuted;
(ii) the witnesses had "bought" their immunity by agreeing to testify against the Church of Scientology of Toronto;
(iii) the witnesses had come forward not out of a sense of remorse, but because they believed that they would be charged themselves;
(iv) Mr. Levman had admired to perjuring himself in civil
proceedings concerning Mr. Coulson and Mr. Chornopesky; and
(v) Ms. Fairfield and Ms. Evoy were required to advance the
Crown's case as a condition of obtaining immunity.
-26- The trial judge warned that they "should examine very carefully" the evidence of these witnesses before acting on it. It was in this context that the trial judge instructed the jury that they "may consider" that they required some confirmatory evidence.
In our view, it is insignificant that the trial judge told the jury that they "may consider" the need for confirmatory evidence rather than they "should" look for such evidence. In Vetrovec itself, Dickson J. stated at p. 832 that it would have been sufficient if the trial judge had said that "it would be wise" to look for supporting evidence.
When coupled with the extensive reference to the reasons for approaching the testimony of the suspect witnesses with caution, the language used by the trial judge in this case sufficiently conveyed the need for care in adopting, without more, the evidence of these witnesses.
The trial judge concluded his charge concerning the suspect
by suggesting that they were not "ordinary criminals" in that they
had not acted for selfish reasons, but because they thought they were
benefiting their religion. Mr. Norris submits that this final
undermined the earlier caution. We do not agree. It was open to the
trial judge to point out other factors that he considered to be
relevant to the credibility of the witnesses. His concluding comments
would not have led the jury to believe that his much
-27- lengthier comments detailing the frailties of the witnesses' credibility were to be ignored. There is no merit to this ground of appeal.
B. Confirmatory Evidence Mr. Norris submits that the evidence on which the Crown relied to support the testimony of the suspect witnesses was not capable of confirming the evidence in the relevant sense. He argues that to qualify as confirmatory, the evidence must implicate the accused in the commission of the offence. It is his position that the evidence relied on by the Crown merely supported the witnesses' evidence as to their own roles in the offenses. We called on the Crown to respond to this ground of appeal.
The trial judge left six items of evidence with the jury as potentially confirmatory. It is unnecessary to address all of them;
reference to two will suffice. First, Ms. Fairfield and Ms. Evoy both
described the contents of files that had been obtained from the
Metropolitan Toronto Police. The trial judge pointed out that
Sergeant Dimmock described the contents of a file kept by the police
on the Church of Scientology, and that the file contained documents
similar to those described by Fairfield and Evoy.
-28- Second, Ms. Evoy testified that she had received a file from Janice Wheeler in the bathroom of the offices of the Ministry of the Attorney General. She described the file as relating to the application by the Church of Scientology under the Marriage Act, R.S.O. 1970, c.261 (now R.S.O. 1990, c.M.3) for authority to solemnize marriages and regarding a complaint that a title used by the Church resembled that of a government department. Mr. Polika, who had been counsel for the Ministry of the Attorney General, testified that these two matters had been the subject of work within the Ministry at the time.
In my view, this evidence and the four other similar items were properly left to the jury as potentially confirming the testimony of the Crown witnesses. The evidence did not merely show the witnesses' own involvement in the offenses. As Dickson J. made clear in Vetrovec at pp. 826-28, confirmatory evidence need not, itself, implicate the accused. Rather, it must confirm some material aspect of the suspect witness' testimony. Once such confirmation is supplied, the suspect witness' testimony may be made more credible as a whole.
In this case, the trial judge pointed out that the testimony of Sergeant Dimmock and Mr. Polika did not directly implicate the accused.
It did, however, support material aspects of the Crown witnesses'
testimony. It tended to confirm that the Guardian's Office
-29- had acquired confidential information from the target organizations, and that it had done so through the illegal plant operations. If Ms.
Evoy, for example, was telling the truth about this aspect of her testimony, she may have been telling the truth about the purpose of the plants and who their actions were intended to benefit. In short, the evidence was capable of strengthening the belief that the Crown witnesses were telling the truth about the appellants' roles in the offences.
VII. DISCLOSURE In their factum, the appellants make a broad attack on the adequacy of disclosure by the Crown and the trial judge's rulings refusing to require further disclosure of certain categories of documents. In particular, the appellants focus on the refusal of the trial judge to order disclosure of documents in the possession of the Ontario Ministry of Consumer and Commercial Relations. On the hearing of the appeal, the appellants abandoned most of these grounds of appeal.
They limited their submissions respecting disclosure to one issue,
namely, whether the Crown was required to provide to the defence an
inventory of all of the material in the possession of the O.P.P. that
had not been disclosed to the defence.
-30- It is important to place this in its proper context. In his submissions to the trial judge, Mr. Stewart, counsel for the Crown, set out a detailed history of the extensive disclosure that had, to date, been provided to the defence. This history included reference to the following:
(i) The defence had disclosure of the testimony of four former Scientologists, taken before the justice of the peace pursuant to s. 509 of the Criminal Code, prior to the issuance of process. The transcript consisted of approximately 300 pages of evidence.
(ii) The defence received copies of all documents to be relied on by the Crown, and "will-say" statements of witnesses. This material consisted of several volumes, and was in excess of 2,600 pages.
(iii) The defence received copies of lengthy statements provided to the police by the five former Scientologists who ultimately testified at trial.
(iv) The defence received copies of lengthy statements provided to the police by other individuals who had previously been affiliated with the Church of Scientology of Toronto, and whom the Crown did not propose to call as witnesses.
(v) The defence had the benefit of a full and lengthy preliminary
inquiry, during which they had extensive opportunity to
question, by means of cross-
-31- examination, witnesses called by the Crown. The Crown called 40 witnesses to testify at the preliminary inquiry, many of whom were subject to lengthy and detailed cross-examination.
The evidentiary portion of the hearing extended over approximately 31 weeks of court time.
(vi) The defence obtained almost wholesale access to the Metropolitan Toronto Police files relating to the Church of Scientology. This included access to an internal report prepared by the Metropolitan Toronto Police and the O.P.P.
on the activities of the Church of Scientology of Toronto, which consisted of 1,477 pages, and which was subject to only minimal editing.
(vii) Toward the conclusion of the preliminary inquiry, on January 25, 1990, counsel for the Crown and defence negotiated and entered into a broad disclosure agreement, which set terms governing disclosure of a wide range of documentary materials that were of interest to the defence.
(viii) Following the preliminary inquiry, the defence continued to
receive further disclosure. For example, defence counsel were
provided with numerous documents relating to the execution
of the search warrant on the premises of the Church of
Scientology of Toronto in March 1983.
-32- As noted above, toward the conclusion of the preliminary inquiry, counsel for the Crown and counsel for the defence had signed an extensive disclosure agreement. This agreement set out a number of matters that would be disclosed "in the interest of affording the defence the discovery they seek, and of bringing the preliminary inquiry to a close". Among other matters, the Crown agreed to disclose the following:
(i) a photocopy of the notes, in transcript form, made by Constable John Cunha while he was working in an undercover capacity for the O.P.P. at the Church of Scientology of Toronto from January 22, 1981 until May, 26, 1982;
(ii) a photocopy of the notes, in transcript form where available, made by Constable Barbara Taylor while she was working in an undercover capacity for the O.P.P. at the Church of Scientology of Toronto from September 18, 1980 until March 3, 1983;
(iii) Scientology documents accumulated by Constables Cunha and Taylor while they were on undercover duties;
(ix) a photocopy of all of the notes or diary entries made by
Detective Sergeant Ciampini, the lead investigator,
throughout the investigation from 1972 to December 1, 1984;
-33- (v) a photocopy of O.P.P. Criminal Investigation Branch file 29080 ("Project 20") memoranda relating to the investigation of the activities of the Church of Scientology of Toronto for the period commencing in January 1980 and culminating in the execution of the search warrant in March 1983;
(vi) documents acquired by the O.P.P. from the F.B.I. in the United States in early 1980;
(vii) background documents acquired by the O.P.P. in relation to the Project 20 investigation of the activities of the Church of Scientology of Toronto from January 1980 until December 1, 1984;
(viii) background reports or documents relating to the joint O.P.P.-Metropolitan Toronto Police report of 1977;
(ix) a photocopy of memoranda made by Inspector John Germain or Detective Sergeant Ciampini in relation to the purpose of trips to the United States, following the execution of the search warrant errant, in connection with the Project 20 investigation of the activities of the Church of Scientology of Toronto; and (x) a photocopy of reports and documents contained in the O.P.P.
security branch file for the period September 1972 through
1976 relating to the activities of the Church of Scientology
-34- In addition to the items included in the disclosure agreement, Crown counsel had continuously responded to specific requests from defence counsel. After the trial judge ruled that Crown counsel was not required to provide an inventory of all of the material not yet disclosed, defence counsel made specific requests for certain items.
Crown counsel reported to the trial judge that some of these items had already been disclosed, and that the others would be.
The trial judge also dealt with a specific concern relating to statements provided to the O.P.P by certain individuals in the United States. The existence of these statements had been made known to the defence, but Crown counsel had refused to disclose the material on the basis that it was irrelevant. The trial judge reviewed the material and determined that certain items should be disclosed.
In our view, Crown counsel had met its disclosure obligations and was not required to provide the inventory sought by the defence. In R. v. Chaplin,  1 S.C.R. 727, Sopinka J. dealt with the procedure where, as here, the Crown claims that it has discharged its disclosure obligations and Crown counsel denies that he or she is aware of the existence of any other relevant material. Sopinka J. held as follows at page 743-4:
In contrast to the above, in some cases, this being one, the
existence of material which is alleged to be relevant is disputed by
-35- the Crown. Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the nondisclosure of material the existence of which it is unaware or denies. _Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant._ Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce as set out above in the passages which I have quoted from R. v. Stinchcombe [ 3 S.C.R. 326] and R. v.
Egger [ 2 S.C.R. 451].
Apart from its practical necessity in advancing the debate
to which I refer above, _the requirement that the defence
provide a basis for its demand for further production serves
to preclude speculative, fanciful, disruptive, unmeritorious,
obstructive and time-consuming disclosure requests. _ In cases
involving wiretaps, such as this appeal, this is particularly
important. Fishing expeditions and conjecture must be separated
from legitimate requests for disclosure. [Emphasis added.]
In view of the extensive disclosure that had already been made by the Crown in this case, the further demand by the defence is properly characterized as "speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming". Despite the mass of material that was disclosed to the defence over the many years leading up to the trial and during the trial itself, defence counsel at the trial and on the appeal were unable to point to a single document that _might_ exist that would be relevant to the case and that had not been
-36- disclosed. Put another way, assuming as we must that the defence had carefully examined all of the disclosed material and the evidence from the preliminary inquiry, defense counsel were nevertheless unable to point to anything that suggested that full disclosure of all relevant material had not been made. In our view, this is particularly telling since defence counsel were provided with copies of all of the notes of the lead investigator Detective Sergeant Ciampini, all of the memoranda from the O.P.P. file relating to the investigation, and all of the reports and documents relating to the joint O.P.P.-Metropolitan Toronto Police investigation.
In his argument before us, Mr. Norris focused on submissions by Crown counsel at trial as an admission that other relevant and undisclosed material existed. The excerpt from the Crown's statement was as follows:
Mr. Ruby was saying, basically, "I need a list of everything the police have, and it's up to the Crown to go into the police files with the police and provide it. Otherwise, I don't know what's been withheld. If I have any dispute about it then this material has got to be lugged into court for you to review." And we take very strong exception to that approach under Stinchcombe. I certainly was not looking forward to having any direction from you to go back out to Mississauga to attempt to determine what, if anything -- _and I am sure I will find materials. I don't want to mislead you in any way, because there are so many materials in this case, that if I didn't, it would be an astonishing fact._ But I didn't want to go back out and have to inventory materials which the O.P.P. happened to have.
-37- In our view, to this statement by Crown counsel was not sufficient to discharge the burden on the defence as enunciated by Sopinka J.
in Chaplin. To the contrary, when the entirety of Crown counsel's submissions before the trial judge are reviewed, it is apparent that counsel believed that he had made disclosure of all relevant documents of which he was aware. As would be expected in a case of this size and complexity, Crown counsel could not state categorically that other relevant documents did not exist. However, as pointed out in Chaplin, before anything further was required of Crown counsel, the defence had to establish a basis that could enable the trial judge to conclude that there was some other potentially relevant material in existence.
Despite all of the tools at its disposal, including the massive disclosure already made, defence counsel was unable to do so.
Finally, in our view the recent decision of the Supreme Court of
Canada in R. v. Carosella, a judgment of the Supreme Court of Canada,
released February 6, 1997 does not require a different result. In
that case, Sopinka J., for the majority, reaffirmed at para. 36 that
the obligation on the Crown is to produce material that "may" affect
the conduct of the defence. To repeat, Crown counsel in this case
asserted that he had produced all such material. This is not a case
like Carosella where the relevant document had not been disclosed
(because it had been destroyed). The burden was on the appellants
in this case to
-38- show, per Chaplin, a basis from which the trial judge could conclude that other potentially relevant material existed. They failed to so.
There is no merit to this ground of appeal.
VIII. EXCLUSION OF SECONDARY EVIDENCE This ground of appeal arises out of the execution of a search warrant by the police at the offices of the Church of Scientology of Toronto. The trial judge found that the manner in which the search warrant errant was executed violated the appellants' rights under s.
8 of the Charter. As a remedy, the trial judge excluded all of the documents seized during the search. He also excluded certain "secondary evidence" with respect to charges of theft of confidential documents.
In the result the Crown was unable to prove the seven counts of theft and in separate proceedings the appellants were acquitted on those charges. The appellants submit, however, that the trial judge erred in failing to exclude the secondary evidence on the breach of trust counts.
A. The Motion to Exclude the Primary Evidence On March 3 and 4. 1983, over a period of about 17 hours, the O.P.P.
executed a search warrant at the offices of the Church of Scientology
of Toronto Approximately two million documents were seized in
execution of the warrant. The search warrant
-39- referred to several complex offences tax fraud, fraud on the public, and conspiracy. The appellant was never charged with these offenses.
Soon after the search and seizure, the Church launched an application to quash the warrant. It was heard by Mr. Justice Osler who upheld the validity of the warrant. An appeal by the Church to this court was dismissed: Re Church of Scientology et al. and the Queen (No. 6) (1987).
31 C.C.C. (3d) 449. The court held that the fact that the police did not execute the warrant errant in accordance with its terms could not retroactively render the warrant invalid. The court, however left open the effect of the alleged over-seizure. This set the stage for the hearing before the trial judge.
The trial judge heard extensive evidence concerning the manner in
which the search was carried out. His most important finding was that
the police made a wholesale seizure of documents without regard to the
important limitation in paragraph 16 of the warrant. In that
the police were directed only to seize documents in the described
categories or classes if they related to certain specified time
and related "directly to" the described offences. The trial judge
found that the police seized documents if they fell within the class
of documents and the time period irrespective of whether the documents
related directly to the described offences.
-40- The police also seized a large number of "pre-clear" folders that contained confidential information about persons "audited" by the Church. The warrant authorized the seizure of pre-clear folders only in relation to members of the Guardian's Office staff. However, 978 pre-clear folders relating to 641 parishioners were seized. Only five of the seized folders related to Guardian's Office staff. Although many of the improperly seized pre-clear folders were returned to the appellant within months of the search, over 200 folders were not.
However, pursuant to a court order, the pre-clear files had been ordered sealed pending determination of whether those files were privileged.
in extensive reasons, the trial judge held that the manner in which the search and seizure was executed was unlawful and constituted a violation of the appellants' right to protection against unreasonable search and seizure as guaranteed by s. 8 of the Charter. He found that the police had not made a good faith attempt to stay within the boundaries of the warrant. The trial judge rejected the Crown's submission that the manner in which the search was conducted only affected the reasonableness of the seizure of the documents outside the terms of the warrant. He not only held that the seizure of so many documents not covered by the warrant was unreasonable, but that the manner in which the search was conducted tainted the entire seizure.
His reasoning is summed up in this portion of his ruling:
Having decided that the manner of search was unlawful in the case
at bar for failure to be governed by the concluding words of
-41- Paragraph 16 of the warrant, would be inconsistent with the purpose of s. 8 being that of preventing unjustified searches before they happen, to now hold that the search and seizure of some of the documents was not unreasonable because they would properly have been seized if the search warrant had been properly executed.
In my judgment, the seizure of the documents which the Crown seeks to use in evidence was unreasonable because of the unlawful manner in which the search and seizure was conducted. I do not intend to lay down a rule of general application. My decision is limited so the facts of this case, where the search was conducted by a number of officers, where the provision in the warrant that was not complied with was probably essential to the validity of the warrant where the search covered a large number of articles, and where there was, by anyone's analysis, a very substantial overseizure. The unlawful manner of search might not have been significant in a simple case.
The trial judge then turned to the difficult question of whether the documents obtained as a result of the violation should be excluded.
He reviewed the factors set out in R. v. Collins  1 S.C.R. 265.
He held that under the first set of factors, since the documents were real evidence, their admission would not affect the fairness of the trial. Under the second set of factors, the trial judge concluded that the seriousness of the violation strongly favoured exclusion of the evidence. The appellants place particular emphasis on the following part of the trial judge's reasons:
In considering the evidence respecting the search and seizure, I
found that _the police did not act in good faith,_ because so
many of them disregarded the concluding words of Paragraph 16
of the warrant, and there is no question that the evidence which
the Crown seeks to admit could have been obtained in a properly
conducted search [Emphasis added.]
-42- The trial judge briefly the set of factors from Collins, namely the effect of excluding the evidence on the integrity of the administration of justice. He pointed out that the evidence sought to be excluded would provide powerful circumstantial evidence "that the thefts had been committed", but that this would often be the case. The trial judge held that, on balance, the evidence should be excluded.
B. The Motion to Exclude the Secondary Evidence Following the ruling concerning the exclusion of the seized documents, the appellants moved to exclude the "secondary evidence". The trial judge characterized secondary evidence as including all evidence of whatever nature discovered or generated after the seizure of the primary evidence. The appellants had sought exclusion of the testimony of the five witnesses who were discovered by, and gave statements to, the authorities after the search and seizure. These were the five ex-Scientologists, Bryan Levman, Marion Evoy, Kathryn Smith, Emile Gilbert and Dianne Fairfield. The appellants had also sought exclusion of any evidence discovered as a result of the interviews of these five witnesses.
The evidence adduced before the trial judge appears to establish
that certain seized documents were immediately used by the police to
attempt to find witnesses. In
-43- particular, the police had possession of a document "Suppressive Persons Declare". This document declared eight persons to be suppressive persons and expelled them from the Church. The police knew that these persons might well be disposal to providing information to the authorities.
Three persons who later became Crown witnesses, Bryan Levman, Emile Gilbert and Kathryn Smith, are named in this document.
Contact was made with the persons who became Crown witnesses only after the lead investigator had travelled to the United States and made contact with David Mayo and his lawyer, Gary Bright. David Mayo was a former Scientologist based in the United States who had set up an organization in competition with Scientology and who was engaged in litigation with the Church of Scientology. Mayo and Bright acted on behalf of the police in contacting the former Scientologists and encouraging them to become Crown witnesses. Mayo conveyed to these potential witnesses that they might be charged.
There was no evidence that Mayo or Bright had been shown any of the documents that were seized in the search of the Church of Scientology of Toronto.
The trial judge made a number of important factual findings
concerning the relationship between the seizure and the obtaining
of the testimony of the ex-Scientologists. Those findings may be
summarized as follows:
-44- (i) over a year elapsed between the date of the unlawful search and the interviews by the police of the Crown witnesses;
(ii) this delay is explained in part by the magnitude of the seizure;
(iii) the significance of the delay is reduced by the fact that the police tried unsuccessfully to interview persons named in the "Suppressive Persons Declare" within two months of the seizure;
(iv) two of the seized documents that were subject to solicitor client privilege were used by the police in the investigation and questioning of the Crown witnesses and must have assisted the police in obtaining the cooperation of Emile Gilbert and Kathryn Smith;
(v) the seized documents identified four entities that had been targeted by the Church of Scientology of Toronto and were previously unknown to the police, namely, the Ontario Medical Association, the Royal Canadian Mounted Police, the Metropolitan Toronto Police and a law firm acting for persons engaged in litigation with the Church;
(vi) all of the ex-Scientologists were concerned that they might
be arrested as a result of evidence that would be discovered
-45- seized documents and this was an important factor in inducing them to co-operate with the authorities; the trial judge rejected the evidence of these witnesses to the extent that they attempted to minimize the importance of the seized documents in their decision to co-operate with the police;
(vii) it was "quite unrealistic" to suggest that these witnesses would have decided to come forward and confess their involvement in acts that occurred almost ten years earlier had it not been for their fear of incriminating evidence in the seized documents; and (viii) the evidence given by these witnesses was influenced by the contents "real or apprehended" of the seized documents.
Based on these findings, the trial judge held that there was a causal connection, if not a temporal connection, between the violation of the Charter and the evidence obtained from the five ex-Scientologists.
Accordingly, the evidence had been obtained in a manner that infringed the appellants' Charter rights within the meaning of s. 24(2) of the Charter.
In deciding whether or not this secondary evidence should be
the trial judge again applied the test from Collins. He noted that it
was conceded that the first
-46- group of factors concerning the fairness of the trial was not relevant.
As to the second group of factors concerning the seriousness of the Charter breach, the trial judge reaffirmed his earlier finding that the violation was a serious one.
The trial judge then turned to the final set of factors relating to the disrepute to the administration of justice that would arise from exclusion of the evidence. The trial judge distinguished between the theft counts and the breach of trust counts. He held that the gravamen of the offences was the use of Church members to infiltrate various organizations to obtain copies of documents containing information that might help the Church. The most reprehensible aspect of the conduct was as the infiltration of the law enforcement agencies as represented by the breach of trust counts. The theft charges were relatively minor involving the temporary removal of pieces of paper of a value not exceeding $200.
The trial judge concluded that the exclusion of the secondary evidence in connection with the less serious offences of theft under $200 would not bring the administration of justice into disrepute.
However, to exclude the secondary evidence on the more serious charges
of breach of trust would bring the administration of justice into
disrepute in the eyes of a reasonable person, dispassionate and fully
apprised of the circumstances of the case.
-47- C. Analysis An appellate court should not interfere with the decision of a trial judge respecting the application of s. 24(2) of the Charter unless the trial judge made an unreasonable finding of fact or a legal error in applying that provision. See R. v. Grant,  3 S.C.R.
223. In our view, there is no basis for interfering with the trial judge's conclusions concerning the admissibility of the secondary evidence. Accordingly, it is only necessary to deal briefly with the submissions of the appellants.
1. Causation Before turning to those arguments, some brief components are necessary with respect to the threshold issue of whether the secondary evidence was obtained in a manner that infringed the appellants Charter rights. This case was tried before the decision of the Supreme Court of Canada in R. v. Goldhart  2 S.C.R. 463. In Goldhart, reference is made to the decision of the trial judge in this case. Sopinka J.
held that, to the extent that Southey J. held that a causal connection
between the breach and the evidence was sufficient to trigger the
provisions of s. 24(2), this was an error. Instead, the court is
required to examine the whole of the relationship between the breach
and the evidence. Thus, the court must consider no: only whether there
is a causal connection, but the strength of the connection between
the impugned evidence and the breach. The court must also consider
-48- whether there existed a temporal link. On the other hand, Sopinka J.
noted that in this case the trial judge had found that illegally seized documents incriminated the witnesses and were a key factor in the decisions of the witnesses to come forward and testify for the Crown.
In our view, Sopinka J.'s reasons in Goldhart imply that it was open to the trial judge in this case to find that the strength of the causal connection between the Charter breach and the obtaining of the secondary evidence was such that the evidence was procured in a manner that infringed the appellants' Charter rights.
That being said, the fact that the connection between the secondary evidence and the violation was somewhat more remote than the obtaining of the primary evidence was a factor to be taken into account in applying the Collins factors. See R. v. Strachan  2 S.C.R.
980 per Dickson C.J.C. at p. 1006. I turn now to whether the impugned secondary evidence should be excluded.
2. Fairness of the Trial
With respect to the first set of Collins factors, we agree with the
trial judge that the admission of this evidence would not affect the
fairness of the trial. This secondary evidence did not have the
of self-incrimination and did not emanate from the
-49- appellants. To paraphrase the dissenting reasons of Brooke J.A., adopted by Sopinka J. in Goldhart at p. 496, this testimony was the product of the minds of the witnesses themselves and could be known only if and when they chose to disclose it. It was not enough that the testimony might not have been obtained but for the illegal search.
As held by Doherty J.A. in R. v. Belnavis (1996), 107 C.C.C. (3d) 195 at 222-3 (Ont. C.A.) and Cory J. in R. v. Stillman, a judgment of the Supreme Court of Canada, released March 20, 1997 at paras. 72-119, before admission of this type of evidence will affect the fairness of the trial, there must be some element of involvement or participation of the accused in the obtaining of the evidence. That element is absent in this case. The mere use by the authorities or documents, created by the accused before the violation, to obtain further evidence is not the kind of compelled participation that will render this after-acquired evidence "conscriptive evidence" so as to affect the fairness of the trial.
3. Seriousness of the Charter Violation With respect to the second set of factors, in our view, the trial judge properly characterized the seriousness of the violation. Ms.
Edwardh argues that the trial judge erred in considering the fact that the search was completed in a short period of time as a mitigating factor. This submission concerns the following aspect of the trial judge's reasons:
The loss of the documents in the illegal seizure caused substantial
hardship to the Church. On the other hand, the police were acting
-50- in the execution of a valid search warrant the officers had tried to comply with para. 16 of the search warrant by satisfying themselves that they seized only documents relating directly to the offenses alleged in the information the search would have tested must longer. Officers would have been present in the Church's premises for a greater period of time, which would have increased the disruption to the activities of the Church.
The trial judge's comments that had the police complied with paragraph 16 of the warrant they would have been on the premises for a greater period of time were not intended to diminish the seriousness of the violation. He was merely pointing out that this was a factor to be taken into account in considering the seriousness of the intrusion into the privacy interests of the Church. There is no question that had the police undertaken a detailed review of the documents at the premises, they would have been a constant and probably oppressive presence for many more days. That was a factor to be considered.
In Baron v. Canada,  1 S.C.R. 416 at 451 Sopinka J., for the court, quoted with approval from the judgment of Hartt J. in R. v.
Burnett.  2 C.T.C. 227 (Ont. H.C.) as follows:
Where the alleged misconduct is of a complex nature in which funds
are allegedly funnelled through a number of interrelated companies
with a view to hiding their disposition, it seems to me that the
number of documents that may afford evidence of such a violation
may well be very great indeed. In such a case, an entire class
of documents may in fact be necessary to trace the
-51- transactions. _Granted, many documents in a file may not, in the final analysis, be relevant to any tax violation. However, it may be impossible to preclude their relevance without a detailed examination of all the documents seized._ [Emphasis added] Hartt J.'s comments were made in the course of considering a submission similar to the one made in this case that the overseizure of documents rendered the search and seizure unreasonable. He had earlier made the following observation at p. 238:
_A search and seizure of the kind authorized here would take months to complete if each document had to be examined individually.
To interpret the legislation in the way urged could well lead to the serious disruption of private and business premises, could involve inordinate strain on public resources, and might well found a legitimate complaint that the manner in which a search is executed is oppressive._ To insist that in all cases the determination of relevance be based upon the examination of the documents at the time of the search is similarly impractical.
It seems to me that the search must be as detailed as is necessary
to determine whether the documents may afford evidence of a
violation and that the detail required will depend on how broad
the standards of relevance properly are. [Emphasis added.]
This was a factor to be taken into account in considering the
seriousness of the violation. The trial judge found, in effect, that
the police made no attempt to comply with he provisions of paragraph
16 of the warrant arrant. But this conduct had to be balanced against
the consequences to the appellant of a more detailed review on the
premises. The fact that the police were acting upon a valid search
warrant was also a proper factor to take into
-52- account. See R. v. Strachan,  25 C.R. 980; R. v. Goncalves,  2 S.C.R. 3; R. v. Plant,  3 S.C.R. 281 at 300. Counsel for the respondent also point out that one of the most serious aspects of the violation, the unauthorized seizure of the pre-clear folders, is mitigated by the fact that these were immediately sealed in accordance with a court order.
4. The Administration of Justice Finally, we agree with the trial judge's view concerning the third set of factors. In considering the effect of exclusion, the entire course of events had to be considered. This was not a case where admitting the evidence would have the effect of condoning unacceptable conduct by the police. The trial judge had already determined that the primary evidence should be excluded and that the secondary evidence should be excluded on the less serious theft charges. It was clearly open to him to find that the balance shifted in favour of admission in considering the serious breach of trust charges. The trial judge was required to balance the long-term consequences on the administration of justice of regularly admitting this kind of evidence in the light of how it was obtained, against the consequences of excluding it. See R. v. Greffe,  1 S.C.R. 755 at 797.
In this case, the trial judge found a strong causal link between the Charter breach and the obtaining of the evidence of the Crown witnesses.
However, it was also of some
-53- significance that the evidence obtained from illegal seizure was not the only factor motivating the witnesses to come forward. The trial judge mentioned the "domino effect", which was also relevant on the second branch of the s. 24(2) test. As the trial judge pointed out, the significance of the seized documents diminished once it became known that one or two of the other ex-Scientologists were cooperating with the police. The witnesses were also strongly motivated to cooperate with the authorities because of their own experience within Scientology. They had seen that when wrongdoing was detected, the Church would distance itself from the wrongdoers and, in fact, offer up the wrongdoers to the authorities and provide no assistance to them, even though they had been acting on behalf of the Church, or at least the Guardian's Office. These factors could all properly be taken into account to strengthen the conclusion of the trial judge with respect to the third set of Collins factors that exclusion of the evidence on the breach of trust charges would tend to bring the administration of justice into disrepute.
The seriousness of the offenses was also a proper factor to consider.
In Collins, the Supreme Court held that if the admission of the
would not affect the fairness of the trial and that without the
serious charges would be dismissed, the seriousness of the offences
favours admission. We do not agree with counsel for the appellants
when she submits that these were not serious offences. I will
deal with this aspect of the case further
-54- when considering the sentence appeal. It is only necessary to point out here that these offences had the potential to seriously compromise the administration of justice in this province. As the trial judge pointed out, the most reprehensible aspect of the conduct was the attempt to impair the effectiveness of the targeted law enforcement agencies, including the various police forces and the Ministry of the Attorney General. The fact that the repeated efforts of the appellant to obtain confidential information were largely unsuccessful did not mitigate the serious nature of the breach of trust offences.
The distinction the trial judge drew between the theft counts and the breach of trust counts was a reasonable one and we see no basis for interfering with his conclusion.
I now turn to the principal grounds of appeal.
IX. ELIGIBILITY FOR SERVICE ON A JURY A. Introduction In a pre-trial motion before the trial judge, the appellants challenged the constitutional validity of the jury selection scheme in the provincial Juries Act, R.S.O. 1990, c.J.3. The focus of the challenge was the exclusion of non-citizens from the jury pool.
The appellants also challenged the validity of excluding certain
persons by reason of their occupation or the occupation of their
spouse. The trial judge dismissed the motion and the
-55- jury was selected in accordance with the existing legislative scheme. The appellants argue that the trial judge erred and, accordingly, that the jury was not properly constituted. We called on the Crown to respond to these submissions.
B. Selection of a Jury in Ontario Although selection of a jury in a criminal case is a matter of criminal procedure, Parliament has relied upon the provincial legislation to assemble the panel from which the petit jury will be selected. Thus, s. 626 of the Criminal Code provides that a "person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province" is qualified to serve as a juror. The Code also requires that the provinces meet certain standards in their jury selection schemes. For example, under s.
626(2), "no person may be disqualified, exempted or excused from
serving as a juror in criminal proceedings on the grounds of his or
her sex." Pursuant to s. 638(1)(d), the prosecutor or the accused may
challenge a juror for cause on the basis that the juror is an
For the purposes of this appeal, it is only necessary to provide
a cursory outline of the process by which the jury is selected. The
first step in the process is performed by the
1 The term "alien" would seem to be an anachronism. In the
Immigration Act, R.S.C. 1952, c. 145, "alien" is defined as a
person who is not a British subject. See: Bureau v. The King
(1931), 51 Que. K.B.207. The immigration Act, R.S.C. 1985,
c. I-2 makes no reference to "alien".
-56- Director of Assessment for Ministry of Revenue. Through the of a computerized database, the Director selects the persons who will receive jury notices. Those persons in the database who are Canadian citizens, resident in the municipality and will be a minimum of 18 years of age when summoned, are identified and put into a separate computer file. The number of persons requested by the sheriff are randomly drawn from this separate database and mailed jury notices.
For the year 1992, the Sheriff for the Municipality of Metropolitan Toronto asked the Director of Assessment to send out 30,000 jury notices. The notice instructs the potential juror to answer a questionnaire designed to identify persons who would not be eligible for jury duty in accordance with the provincial legislation. One such question is whether the potential juror is a Canadian citizen.
Approximately 22,000 individuals responded to the jury notice. From this group, the sheriff was able to prepare a list of 16,500 qualified persons. This becomes the jury roll from which jury panels are drawn for the year.
Panels of eligible jurors are selected from the jury roll to serve
for two weeks. The members of the panel are selected at random. The
petit jury will be selected from this panel in accordance with the
procedure in Part XX of the Criminal Code. Section 629 of the Criminal
Code permits the accused or the prosecutor to challenge the jury panel
as a whole
-57- (challenge to the array of the panel) on the basis of partiality, fraud or wilful misconduct on the part of the sheriff or other official by whom the panel was returned. In this case, the appellants challenged the array of the panel pursuant to s. 629. They did not allege any personal state of mind or conduct on the part of the official who returned the panel, but argued that the system prescribed by the provincial statute was defective.
Where there is no challenge to the panel or that challenge is
dismissed, the selection of the petit jury commences. Names are
randomly selected from the panel. As those persons come forward they
may be excused by the trial judge under s. 632 because they have
an interest in the proceedings or directed to stand by for reasons
of personal hardship by the trial judge under s. 633. The potential
juror may then be challenged for cause in accordance with s. 638 or
challenged peremptorily under s. 634. In this case, all of the
potential jurors were challenged for cause under s. 638(1)(b) on
the basis that they were not indifferent between the Queen and the
accused. The challenge for cause mainly concerned pre-trial publicity
about the Church of Scientology. At the end of this process, the
petit jury of 12 jurors had been selected to try the case.
-58- C. The Challenge at Trial to the Array The challenge at trial to the panel was based on certain exclusions in the Juries Act. First, the appellants argued that it is a violation of their ss. 7, 11, and 15 Charter rights to exclude non-citizens pursuant to s. 2(b) of the Act. Second, they argued that s. 3 of the Act is similarly unconstitutional in that it excludes medical practitioners, veterinary surgeons and coroners; and the spouses of judges, lawyers, and law enforcement personnel. The relevant portions of ss. 2 and 3 that produce these exclusions are as follows:
2. Subject to sections 3 and 4, every person who, (a) resides in Ontario;
(b) _is a Canadian citizen;_ and (c) in the year preceding the year for which the jury is selected had attained the age of eighteen years or more, is eligible and liable to serve as a juror on juries in the Ontario Court (General Division) and in all courts of civil or criminal jurisdiction in the county in which he or she resides. [Emphasis added] 3.-(1) The following persons are ineligible to serve as jurors:
1. Every member of the Privy Council of Canada or the Executive Council of Ontario.
2. Every member of the Senate, the House of Commons of Canada or the Assembly.
3. Every judge and every justice of the peace.
4. Every barrister and solicitor and every student-at-law.
5. _Every legally qualified medical practitioner and veterinary
surgeon who is actively engaged in practice and every
-59- 6. Every person engaged in the enforcement of law including, without restriction the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff's officers, police officers, and officers of a court of justice.
7. _Any person of the opposite sex to whom a person mentioned in paragraph 3, 4 or 6 is married or with whom that person is living in a conjugal relationship outside marriage._ [Emphasis added] Following the trial in this matter, s. 3(1)7 was repealed by the Statute Law Amendment Act (Government Management and Services), 1994, S.O. 1994, c.27, s. 48(1).
The core of the appellants' argument was that non-citizens represent a significant percentage of people, approximately 14% of the population of Metropolitan Toronto, and are unfairly excluded from the opportunity to serve on juries. The appellants called evidence as to the manner in which the panels are selected in Ontario. They also called expert evidence concerning the function of the jury and expert evidence concerning immigration.
The appellants argued that this exclusion is irrational since many,
if not most, of this group can competently perform jury service. The
appellants pointed to s. 27 of the Charter, which requires that the
Charter be interpreted in a manner "consistent with the preservation
and enhancement of the multicultural heritage of Canadians." They
relied upon the evidence of their expert that the non-citizen
is "disenfranchised" because it
-60- is deprived of the opportunity for jury service. It was also his evidence that giving non-citizens the opportunity to serve on a jury would "increase the opportunity for minority opinions to be expressed in the fact-finding process."
The evidence adduced by the appellants shows that of the 1.7 million residents of Metropolitan Toronto over the age of 18, approximately 1.5 million are Canadian citizens. Almost one-half of the 1.7 million residents were not born in Canada and most, close to three-quarters of this group, have become Canadian citizens. Thus, on its face, the pool of potential citizens from which the panel would be selected is a highly diverse group in terms of ethnic and cultural background. I will make further reference to the statistical and other evidence as it becomes necessary in considering the arguments raised by the appellants.
In his reasons for judgment, the trial judge applied Andrews v. Law
Society of British Columbia,  1 S.C.R. 143, concluding that
non-citizens were a discrete minority and that exclusion of such a
large group of persons from jury duty was a breach of the appellants'
s. 11 right under the Charter to a representative jury. The trial
held, however, that this breach constituted a reasonable limit under
s. 1 of the Charter. With respect to the exemptions in s. 3 of the
Juries Act such as physicians and spouses of lawyers, the trial judge
found that excluding these groups did not violate the guarantee to a
-61- representative jury because their exclusion would not materially reduce the representativeness of the jury panels.
D. The Positions of the Parties on Appeal The appellants argue that exclusion of non-citizens under s. 2 of the Juries Act and exclusion of other persons by reason of their occupation or marital status under s. 3 of the Act, violate ss 15.7.11(d) and 11(f) of the Charter. They argue that they have a right under ss. 7 and 11 to a properly constituted jury. They argue that a properly constituted jury is one selected from a panel which has in turn been selected in a manner that does not violate any of the provisions of the Charter and especially s. 15. Alternatively, they argue that they have a constitutional right to a jury selected from a representative pool and, as found by the trial judge, exclusion of large groups of potential jurors from the jury roll on the basis of irrelevant characteristics such as immigration status violates this constitutional right. They also argue that in the case of Jacqueline Matz who is a non-citizen, the exclusion of non-citizens violates her rights under s. 15 of the Charter.
The respondent submits that the appellants are attempting to attack
otherwise valid provincial legislation because it infringes the s. 15
equality or other rights of potential jurors. The respondent argues
that these appellants have no standing to argue the violation
-62- of s. 15 rights of potential jurors. The respondent concedes that the appellants, or at least the individual appellant Matz, have a personal right under s. 11 of the Charter to a representative jury roll.
However, the respondent argues that the Juries Act provisions guarantee the constitutionally required representativeness.
E. The Interveners
Two interveners were granted leave to make submissions on this
issue. In support of the appeal is Mr. Laws, a black Canadian citizen
who was convicted of conspiring to commit offences under the
Immigration Act, R.S.C. 1985, c.I-2. At his trial, he challenged
the constitutionality of s. 2 of the Juries Act on the basis that
prohibiting non-citizens from jury duty effectively reduces the
representation of his peers on the jury panel. His application was
dismissed at trial: R. v. Laws (1994), 19 C.R.R. (2d) 269. Mr. Laws'
appeal is pending in this court and the Juries Act issue forms one
of the grounds of appeal. His intervener status in this case was
granted on the ground that while the "Scientology evidence is general
as to implications of citizenship, the Laws' evidence is specific to
the black population of Metro Toronto": R. v. Church of Scientology
of Toronto (1996), 92 O.A.C. 313. The Attorney General of Canada,
the respondent in the Laws appeal, intervened in this appeal to
support the constitutionality of the Juries Act.
-63- Mr. Laws submits that any requirement of citizenship has a differential impact on black residents of Toronto in that a greater proportion of black residents would be excluded from jury duty than would the rest of the population. His position was supported with evidence including the statistics that 34.1% of the black residents of Toronto are non-citizens, while only 14.4% of the non-black residents are non-citizens. The Attorney General of Canada argued that the Juries Act meets the standard of representativeness required by ss. 7.11(d) and 11(f) of the Charter. Both interveners argue that the exclusion of non-citizens as it effects the _racial_ representation on a jury was not raised in the Scientology case, and should be left for the Laws appeal.
To analyze the issues raised in this appeal and the Crown's
it is critically important to focus on the source and nature of the
rights asserted. As I will explain below, it is my view that the
appellants seek to rely upon the s. 15 Charter rights of other persons
and cannot do so. In the context of this case, the validity, of the
jury selection process must be measured by the rights guaranteed to
accused persons under s. 11 of the Charter. However, because it is
central to the appellants' argument, I will deal first with the s. 15
claim. I will then consider the subordinate arguments based upon s. 7
of the Charter, the Criminal Code and the common law. Finally, I will
deal with s. 11 of the Charter.
-64- In my view, the appeal raises following issues:
Exclusion of Non-citizens Section 15 of the Charter 1. Do the appellants as accused have standing to challenge the validity of the Juries Act exclusions based on R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 or on any other basis?
2. Does the appellant Matz, as a non-citizen, have standing to challenge the validity of the Juries Act exclusion of non-citizens?
Section 7 of the Charter, the Common Law and the Criminal Code 3. Do the principles of fundamental justice as guaranteed by s. 7 of the Charter include a right to a jury selected without discrimination?
4. Does the common law or the Criminal Code give the appellants a right to a jury selected without discrimination?
Section 11 of the Charter
5. Do the Juries Act provisions infringe the appellants' right to
a representative jury pool as guaranteed by s. 11 of the Charter?
-65- Exclusions Based on Occupation and Marital Status 6. Are the exclusions based upon occupation or marital status in s. 3 of the Juries Act invalid?
Section 15 of the Charter 1. Standing to Make a s. 15 Challenge Unless the appellants had standing to challenge these provisions, the trial judge was bound to give effect to them, as are we. The jurisdiction of the trial judge and of this court to deal with the appellants' equality claim under s. 15 and provide an appropriate remedy lies either in s. 24 of the Charter or s. 52 of the Constitution Act, 1982. Section 24 gives a remedy only to a person whose rights have been infringed. See R. v. Belnavis (1996), 107 C.C.C. (3d) 195 at 207 (Ont. C.A.). Section 24 does not give these accused a remedy based on an alleged infringement of the equality rights of non-citizens who may have been excluded from the jury pool.
Section 52 is broader and gives a court the right to hold
to be of no force and effect where that legislation infringes the
Charter even if the accused's own rights or freedoms have not been
infringed. Still, litigants do not have unlimited resort to s. 52 and
the courts have refused to deal with the validity of a statutory
provision where the party
-66- seeking to challenge the legislation does not have standing. Most recently, see Ontario Home Builders' Association v. York Region Board of Education (1996), 137 D.L.R. (4th) 449 at 471-72 (S.C.C.) per Iacobucci J. Also see Benner v. Canada (Secretary of State), a judgment of the Supreme Court of Canada, released February 27, 1997, where Iacobucci J. held, at para. 78, that a party "cannot generally rely upon the violation of a third party's Charter rights".
The appellants' principal claim to s. 15 standing to raise the validity of the Juries Act provisions is based on the doctrine from Big M Drug Mart. In that case, Big M Drug Mart Ltd. was charged with violating the Lord's Day Act, R.S.C. 1970, c.L-13 by selling products from one of its retail stores on Sunday. It sought to defend the charge on the basis that the Act violated the guarantee to freedom of religion under s. 2(a) of the Charter. The Crown argued that the accused had no standing to challenge the validity of the law since, as a corporation, it could have no religion. Dickson C.J.C. rejected that argument and explained at p. 313 the basis upon which the accused corporation could challenge the legislation:
_Any accused, whether corporate or individual, may defend a
criminal charge by arguing that the law under which the charge
is brought is constitutionally invalid._ Big M is urging that
the law under which it has been charged is inconsistent with
s. 2(a) of the Charter and by reason of s. 52 of the Constitution
Act, 1982, it is of no force or effect.
-67- The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. _It is the nature of the law, not the status of the accused, that is in issue._ [Emphasis added] The doctrine in Big M Drug Mart gives an accused the right to defend a criminal charge by arguing that the _law under which the accused is charged_ is unconstitutional. That is not the defence raised here.
In my view, Big M Drug Mart does not stand for the proposition that an accused may assert the personal rights of other actors in the proceedings, except where the possible infringement of those rights affects the accused's rights. In this case, the appellants must show that the manner in which the jury panel was selected infringed their rights as accused persons. Their rights as accused flow primarily from s. 11(d) and (f) as persons "charged with an offence", and I will deal with those rights below.
The courts have given the Big M Drug Mart doctrine a generous
interpretation, permitting accused to challenge the law under which
they are charged provided that some accused's rights would be
infringed by prosecution for that offence. In R. v. Morgentaler,
 1 S.C.R 30, the accused physicians were entitled to challenge
the constitutionality of former s. 251 (the abortion provision) of
the Criminal Code, on the basis that the section
-68- under which they were charged limited women's rights under s. 7.
However, as I read the various judgments in the Supreme Court, it was the possibility of criminal prosecution of women seeking an abortion under s. 251 that was the foundation for the s. 7 argument.
For example, Dickson C.J.C. (Lamer J. concurring) expressed the violation of s. 7 in the following terms at pp. 56-7:
Section 251 clearly interferes with a woman's bodily integrity in both a physical and emotional sense. Forcing a woman, _by threat of criminal sanction_, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person. [Emphasis added.] The reasons of Beetz J. (Estey J. concurring) and Wilson J. are to a similar effect, at pp. 81 and 161 respectively.
In my view, the result in Morgentaler does not support the appellants' claim to standing, nor does R. v. Wholesale Travel Group Inc.,  3 S.C.R 154 or R. v. M. (C.) (1995), 98 C.C.C. (3d) 481 (Ont. C.A.). The common thread in all these cases is that because of their status as accused, the accused persons have been accorded standing to challenge the provisions under which they were charged, provided that the rights of some potential accused would be infringed.
We were referred to no case that gave an accused standing to assert
s. 15 rights of some other persons in the justice system.2
2 Although not relied upon by the appellants, I have considered
whether R. v. S. (RJ) (1995), 96 C.C.C. (3d) 1 (S.C.C.) could
support the position of the appellants. The
-69- Further, I see no policy basis to extend Big M Drug Mart to permit the appellants to assert the s. 15 rights of potential jurors. The Supreme Court of Canada has repeatedly affirmed the personal nature of s. 15 rights. In Andrews v. Law Society of British Columbia at p.
163, McIntyre J. pointed out that s. 15(1) was not a general guarantee of equality; "it does not provide for equality between individuals or groups within society in a general or abstract sense". In R. v.
Swain,  1 S.C.R. 933 at p. 992, Lamer C.J.C. also noted the personal nature of s. 15 rights. He pointed out that the inquiry will "focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the _claimant_ and others based on personal characteristics". Based on this interpretation of s. 15, I can see no basis to grant standing to the appellants to argue the equality rights of a highly diverse group of ----- accused R.J.S. was charged with break, enter and theft. The principal Crown witness was to be his alleged accomplice J.P.M. At the opening of the trial J.P.M., who was separately charged with the same offence, brought a motion to quash the subpoena on the basis that it infringed his Charter right to remain silent. This motion was successful and the accused was acquitted. A Crown appeal to this court was allowed.
On further appeal to the Supreme Court, the Crown raised a standing issue. Iacobucci J. writing for the majority of the Court held that it was necessary to distinguish two different cases. In the first case, the privilege claim of the witness has been improperly rejected. It may be that no party would have a right to appeal the verdict on that basis. Iacobucci J. left that issue open. However, where the claim has been improperly allowed, it was open to the Crown to appeal on the basis that the evidence was improperly rejected and it was open to the accused to respond by arguing in support of a privilege that was affirmed. The accused's further appeal to the Supreme Court was but an extension of that response.
That is not the case here. The appellants' own equality rights
are not at stake and they cannot acquire standing to make the
initial application by attempting to rely upon the standing that
some potential juror might have had to start the process.
-70- which they cannot personally be members, namely non-citizen potential jurors. The Big M Drug Mart doctrine does not afford the appellants standing to argue that the equality rights of potential jurors have been infringed.
Similar principles apply where an accused seeks to challenge the procedural provisions under which he or she is tried. Thus, in R. v.
Bain,  1 S.C.R. 91, the accused was able to challenge the validity of the stand aside provisions (former s. 634) of the Criminal Code, even though there was no evidence that the process had been abused in his case. In fact, the trial judge made his ruling before any jurors had been selected. The accused was, however, asserting a personal right under s. 11(d) of the Charter to be tried by an impartial tribunal. He was claiming that by reason of the stand aside provisions, the selection process operated unfairly towards him and in favour of the Crown. This is confirmed by the judgment of Cory J., for the majority, at p. 103:
The section is so heavily weighed in favour of the Crown that
viewed objectively it must give that legal fictional paragon,
the reasonable person, fully apprised of the manner in which a
jury may be selected, an apprehension of bias. This must be so
since the jury, _as a result of the selection process, would
appear to be favourable to the Crown._ [Emphasis added.]
The rights asserted by the appellants in this case under s. 15 are
entirely different. It is a claim, not that the jury roll by reason
of exclusion of non-citizens deprived them of a trial by
-71- an impartial tribunal, but that non-citizens were deprived of _their_ rights to participate on a jury. As in Bain, the appellants' rights are located in s. 11, sot s. 15.
2. Section 15 Rights of the Appellant Matz The corporate appellant concedes that it has no direct claim to rights under s. 15 of the Charter. The appellant Matz, however, attempts to assert a direct s. 15 violation based on her own status as a non-citizen. To the extent that this is merely a recasting of the argument based on Big M Drug Mart, it must fail. Matz has no right as an accused to assert a claim for the equality rights of potential jurors.
In the event I am wrong about Matz's lack of standing to argue s. 15, in my view, Matz's equality rights as a non-citizen have not been infringed. As I understand it, Matz also asserts a s. 15 violation on the theory that, as a member of a discrete and insular minority, the disqualification of persons like her from jury service violates her own right to be treated without discrimination as mandated by s. 15. I accept, of course, that the Supreme Court in Andrews has held that non-citizens who are permanent residents of Canada fall into an analogous category to those enumerated in s. 15.
That, however, is not the end of the inquiry. Section 15(1) provides
-72- Every individual is _equal before and under the law and has the right to the equal protection and equal benefit of the law_ without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Emphasis added.] In Eaton v. Brant County Board of Education (1996), 142 D.L.R.
(4th) 385, Sopinka J., speaking for the court on this issue, pointed out that while there was a division within the court in Miron v.
Trudel  2 S.C.R. 418 and Egan v. Canada,  2 S.C.R. 513 as to some of the principles relating to the application of s. 15 of the Charter, there was common ground on some points. In particular, he noted at para. 62 that there is general agreement that "before a violation of s. 15 can be found, _the claimant_ must establish that the impugned provision creates a distinction on a prohibited or analogous ground which withholds an advantage or benefit from, or imposes a disadvantage or burden on, _the claimant_." [Emphasis added.] The appellant Matz, the claimant, cannot meet that threshold requirement.
Matz was in no way subjected to disadvantageous treatment by reason of any distinction on the analogous ground of her immigration status.
She received equal benefit and equal protection of the law without
discrimination due to ha immigration status. The impugned provisions
of the Juries Act did not withhold any advantage or benefit from, nor
-73- impose a disadvantage or burden on her.3 She was not, and could not, be summoned as a potential juror in her own case and s. 15 rights of hers were violated by the provisions.
Matz makes a related claim that by reason of the Juries Act exclusions she was denied the benefit of the views and experiences of other non-citizens. This, however, is a claim based on lack of representativeness of the array. It is a claim she can make as an accused and her right, if any, to this degree of representativeness is located not in s. 15 but in s. 11 as a person "charged with an offence". I deal with that claim below.
3. Section 7 of the Charter
The appellants also seek to rely on s. 7 of the Charter which
guarantees everyone the right to life, liberty and the security of
the person, and the right not to be deprived thereof except in
accordance with the principles of fundamental justice. Even though,
3 It is unnecessary to decide whether the intervener Laws has
made out that kind of impact. That issue should be left to the court
hearing his appeal. Both Laws and the federal Crown, the respondent
in the Laws appeal, urged us to avoid deciding that issue in this
appeal. The Attorney General of Canada submitted that "the issue
of race as a quality of representativeness, not raised by the
appellants in this appeal, should be left for the Court in the Laws
appeal." I agree. The issue is highly complex and the relationship
between ss. 11 and 15 in the context should be developed on the
basis of a proper record and by parties with standing to raise the
issue. See comments of C. Petersen, "Institutionalized Racism: The
Need for Reform of the Criminal Jury Selection Process" (1993),
38 McGill L.J. 147, especially at 163-65 the author looks at the
question of jury representativeness in the context of the s. 15
jurisprudence from the point of view of the victim and the potential
juror, as well as the accused.
-74- Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R 927, the appellant corporation cannot invoke s. 7, the appellant Matz as a person whose liberty interests are at stake clearly can rely on the fundamental justice guarantee in s. 7. However, the fundamental justice guarantee in s. 7 adds nothing to her claim. In the context of this case, s. 7 does not offer greater protection than the specific guarantee under s. 11(d) and (f). See R. v. Genereux,  1 S.C.R. 259 at 310 per Lamer C.J.C. The potential impairment of the appellant Matz's liberty interest arises from her status as an accused, not by reason of her immigration status. Her right to fundamental justice must be seen within that context.
The claim based on s. 7 of the Charter is an attempt, indirectly, to acquire standing to argue the equality rights of potential jurors.
The appellant Matz attempts to avoid the standing requirements in s. 15 by arguing that an accused has a right under s. 7 as a matter of fundamental justice to a properly constituted jury. She defines a properly constituted jury as one selected in a manner that does not violate any of the provisions of the Charter, in particular s. 15.
The appellant was entitled to a properly constituted jury, but as the Juries Act and the Criminal Code stood at the time, this panel was selected according to law and the jury was properly constituted.
If the appellant had no standing to challenge these provisions on
the basis of s. 15, the trial court and this court were bound to give
-75- Matz also seeks to rely upon this court's decision in Philippines (Republic) v. Pacificador (1993), 16 C.R.R. (2d) 299. In that case, the appellant, who was subject to proceedings under the Extradition Act, R.S.C. 1985, c. E-21, argued that his rights under s. 7 of the Charter were violated. Had he been subject to surrender under the Fugitive Offenders Act, R.S.C. 1985, c.F-32, the demanding state would have had to meet a higher standard of proof. The appellant could not gain direct access to s. 15 of the Charter because there was no basis for arguing that the different tests in the two Acts were discriminators within the meaning of s. 15 as explained in cases such as Andrews.
The appellant in Pacificador argued, however, that it is a principle of fundamental justice that all persons must be treated equally before the law, except to the extent that distinctions in their treatment can be justified by some reasonable or rational legislative policy.
Doherty J.A. accepted that the equality rights created by s. 15 are
principles of fundamental justice, but held at p. 13 that this did
not "alter the required analysis or yield a different concept of
equality." Since the different tests for committal under the two Acts
do not result in discriminatory treatment within the meaning of s. 15,
"the appellant's argument that _his_ equality rights as enshrined in
s. 7 of the Charter are infringed must fail." [Emphasis added.]
-76- Pacificador is of no assistance to the appellant in this case. Even if s. 7 of the Charter incorporates the equality rights under s. 15, it only incorporates the equality rights of the person whose liberty is at stake. It is that person who is entitled to proceedings in accordance with the principles of fundamental justice. The liberty of non-citizens who may be affected by the alleged discriminatory nature of the Juries Act was not at stake in this prosecution.
4. The Right under the Common Law and the Criminal Code to a Properly Constituted Jury The appellants argue that at common law and under the Criminal Code, they are entitled to trial by a properly constituted jury. I doubt that reference to the common law adds anything to this argument since the detailed provisions of the Criminal Code and the provisions of the Juries Act have probably largely supplanted the common law respecting jury selection. What has been said above in relation to s. 7 of the Charter applies with equal force to the argument based upon the common law and the Criminal Code, and only a few additional comments are necessary.
The appellants place particular reliance upon the decision of this
court in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In that
case, the trial judge did not comply with the statutory requirements
for selecting the jury. After the jury panel had been
-77- exhausted, rather than proceed under former s. 571 of the Criminal Code by ordering a tales, the trial judge purported to increase the size of the original panel. In the result, those potential jurors who had been stood aside by the prosecutor under former s. 563 were never recalled. The accused's appeal from conviction was allowed and a new trial ordered. The following passage at p. 37 summarizes the reasons of the court and is relied upon by the appellants here:
[The trial judge's] duty is to follow the statute. He must not enter upon a course of action that prevents resorting to the "stand-asides" when that result is called for under the Code.
_He must follow the (constitutionally valid) statute._ ....
In the result, because _the process actually adopted by the
trial judge was not authorized by law,_ and deprived the
appellants of a statutory right conferred on them by s. 571 of
the Criminal Code, the appellants were deprived of a trial by
a jury lawfully constituted. This error in itself requires a
new trial. [Emphasis added.]
The appellants take a broad view of the emphasized portions and
argue that the process followed in this case to summon the jury panel
was not authorized by law since that process discriminated against
non-citizens and others. Put shortly, they argue that although the
trial judge was bound to follow a constitutionally valid statute,
equally he was bound not to follow a constitutionally infirm statute.
-78- While this proposition is probably true in the abstract, it does not apply to this case. The impugned legislation was validity enacted and until set aside by a competent court, the sheriff and the other officials charged with the responsibility of summoning the jury panel were bound to follow the legislative scheme. Where, as here, the procedure mandated by the legislation is followed, the jury has been lawfully constituted. The appellants' lack of standing to make the equality arguments prevents them from arguing that the statutes are constitutionally infirm on that basis.
5. Section 11 of the Charter
The appellants concede that they are not entitled to a petit jury
that is "representative". They argue, however, that the selection
process cannot be structured so as to ensure that the jury will not
be representative. The appellants do not distinguish, in terms of
representativeness, between the selection of the jury roll, which
consists of a pool of some 22,000 persons who may be summoned for
jury duty during the year, and the selection of the jury panel of
one to two hundred people summoned for jury duty that week and from
which the appellants' petit jury was selected. Since the exclusion of
non-citizens and others operates at the level of the jury roll, I will
assume that the appellants claim a right to a representative roll.
-79- The appellants argue that the deliberate exclusion of certain groups, especially non-citizens, results in an unrepresentative roll. Thus, selection of the panel in the manner mandated by the Juries Act ensures that the petit jury will not be representative. The appellants submit that the right to a representative pool is implied by the guarantees in s. 11(d) and (f) of the Charter. Those provisions are as follows:
11. Any person charged with an offence has the right ....
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment ....
The Crown submits that the corporate appellant has no standing to rely upon s. 11 of the Charter. It is argued that the right asserted depends upon s. 11(f) and a corporation has no right to trial by jury.
See P.P.G. Industries (Canada) v. Canada (Attorney General) (1983). 3
C.C.C. (3d) 97 (B.C.C.A.). It is unnecessary to resolve this difficult
question since the appellant Matz is charged with offences carrying
a maximum punishment of five years, and thus clearly had the right
to a jury under s. 11(f). Moreover, I am not convinced that the right
to a representative jury roll is wholly subsumed within s. 11(f). The
right to a representative jury roll is also a means of ensuring
impartiality. Exclusion of identifiable
-80- groups from the jury panel on the basis, for example, of race or religion casts doubt on the integrity of the process and risks the creation of the appearance of bias, thereby possibly violating an accused's right under s. 11(d) to trial by an independent and impartial tribunal.
No question of standing otherwise arises. In other words, the right asserted by the appellants to a representative jury roll is a right guaranteed to them by s. 11 as accused persons. The fact that the appellant Matz happens to be a non-citizen is beside the point. She could raise the question of representativeness even if she were a citizen. Equally, her right to a representative jury roll is not a right to a roll that shares any distinctive characteristics that she may possess. It is the quality of representativeness in the jury roll that is at stake, not the particular make-up of any of the panels randomly selected from that roll.
In R. v. Sherratt,  1 S.C.R. 509, L'Heureux-Dube J. discussed the important rode of the jury in criminal litigation. She pointed out that by reason of its collective decision-making, the jury is an excellent fact finder. In a passage of particular interest in this case at p. 523, she held that the jury "due to its representative character" acts as the conscience of the community. The jury can act "as the final bulwark against oppressive laws or their enforcement;
it provides a means whereby the public increases its
-81- knowledge the of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole."
The justification for the representative nature of the jury is not simply to assure that the case is tried by an impartial tribunal. The representative character of the jury also furthers important societal or community interests by instilling confidence in the criminal justice system and acting as a check against oppression. The accused and the community have an interest in maintaining the representative character of the jury system. In Sherratt, L'Heureux-Dube J. made several other comments concerning the nature of the representative character of the jury. Thus, she stated at p. 524 that the modern jury was not meant to be a tool of either the Crown or the defence but rather "was envisioned as a representative cross-section of society, honestly and fairly chosen".
In Sherratt, L'Heureux-Dube J. found that the selection of a jury
in a criminal case engages two related Charter rights. First, the
guarantee in s. 11(f) to the benefit of trial by jury implies that
the jury will be impartial and representative. Second, s. 11(d) of
the Charter explicitly guarantees the accused the right to be
tried by an impartial tribunal. The selection of the jury panel
in accordance with provincial legislation, incorporated through
s. 626 of the Criminal Code, is the primary vehicle for ensuring
representativeness. The in-
-82- court procedure set out in Part XX of the Criminal Code is the mechanism for ensuring that the petit jury is impartial. This case involves only the question of representativeness. The appellants do not attack the impartiality of this petit jury, which was selected following a challenge for cause of each juror in accordance with the Criminal Code.
The content of the right to a representative jury as that right may be guaranteed by s. 11 is a matter of first impression in this court. The respondent submits, however, that the issue has been determined by the Supreme Court in Sherratt. The respondent relies upon the following passages from the reasons of L'Heureux-Dube J.
at pp. 524-26:
Increasingly, however, ever, many countries have since repealed property, sex and race qualifications for jurors and have legislated other expansions in the number of *citizens eligible for jury duty* ... These later developments only serve to underscore the previously articulated rationales for the existence of the jury.
The perceived importance of the jury, and the Charter right to
jury trial is meaningless without some guarantee that it will
perform its duties impartially *and represent, as far as is
possible and appropriate in the circumstances, the larger
community*. Indeed, without the two characteristics of
impartiality and representativeness, a jury would be unable to
perform properly many of the functions that make its existence
desirable in the first place. Provincial legislation guarantees
representativeness at least in the initial array. *The random
selection process, coupled with the sources from which the
selection is made, ensures the representativeness of Canadian
criminal juries: see the provincial Jury Acts. Thus, little
if any objection can be made*
-83- *regarding this crucial characteristic of juries. Schulman and Meyers, ["Jury Selection", in Studies on the Jury, Law Reform Commission of Canada (1979)] make this clear at p.408* of they discussion:
Jury qualification *requirements in Canadian provinces are considerably different than those in the United States or England. The American Bar Association Standards for trial* by jury, as recommended by the Advisory Committee on the Criminal Trial, say that - "The names of those persons who may be called for jury service should be selected at random from sources which will furnish a representative cross-section of the community." _Canadian laws by and large have long met the standard_. [Underlining in original. Bold added.] The respondent points out that L'Heureux-Dube J. referred in these passages to "citizens" eligible for jury duty and stated that the random selection process coupled with the sources from which the selection is made as provided in the provincial Jury Acts "ensures"
the representativeness of Canadian criminal juries. The appellants
submit, however, that the approval of the selection process is
qualified in that L'Heureux-Dube J. also said that "little, if any
objection" can be taken to the present selection process. They also
point out that in the Schulman and Meyers article referred to by
L'Heureux-Dube J., the authors later suggest that consideration be
given to permitting landed immigrants to serve on juries service if
they would otherwise qualify for jury service.
-84- Although there is considerable merit the Crown's position, it is unnecessary to decide whether this aspect of the representativeness question has been finally determined by the Supreme Court in Sherratt since, in any event, the appellants have failed to show that their rights under s. 11 have been violated.
The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. There are a number of practical barriers inherent in the selection process that make complete representativeness impossible. The roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society.
Further, the critical characteristic of impartiality in the petit
jury is ensured, in part, by the fact that the roll and the panel are
produced through a random selection process. To require the sheriff
to assemble a fully representative roll or panel would run counter to
the random selection process. The sheriff would need to add potential
jurors to the roll or the panel based upon perceived characteristics
required for representativeness. The selection process would become
much more intrusive since the sheriff in order to carry out the task
of selecting a representative roll would require information from
potential jurors as to their race,
-85- religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to a representative panel or roll.
What is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury's verdict, and contributes to the community's support for the criminal justice system. To use the words of Madam Justice L'Heureux-Dube in Sherratt at p. 524, what is required is a "representative cross-section of society, honestly and fairly chosen." In my view, there is no characteristic that persons bring to the fact-finding process of the jury _based solely on their immigration status. _ Canadian citizens are of all races, nationalities, ethnic origin, colour, religion, sex, age and ability. Immigration status is simply not a relevant characteristic when regard is had to the rationale underlying the right to a representative pool. A jury pool selected from Canadian citizens represents the larger community for the purposes of trial by jury.
It may be, however, that exclusion of certain segments of society
from jury service would infringe the requirement of a representative
cross-section. This issue has been considered in the United States
in a number of different contexts. In Taylor v. Louisiana 95
-86- S.Ct. 692 (1975), Mr. Justice White, delivering the judgment of the court, heft that it was fundamental to the jury trial guarantee in the Sixth Amendment to the United States Constitution that the jury be selected from a fair cross-section of society. He saw the jury as a "prophylactic vehicle" to "guard against the exercise of arbitrary power - to make available the common sense judgment of the community" (at p. 698). This prophylactic vehicle is not provided if the jury pool is "made up of only special segments of the populace or if large, distinctive groups are excluded from the pool."
The exact definition of "distinctive group" has proved elusive.
As one court noted, the Supreme Court has not "burdened the term 'distinctive group' with a precise definition": Silagy v. Peters, 905 F.2d 986 at 1010 (7th Cir. 1990). The Crown urged us to adopt the formulation used by Mr. Justice Rehnquist in Lockhart v. McCree, 106 S.Ct. 1758 (1986). Mr. Justice Rehnquist summarized the previous decisions of the court that had found a violation of the fair-cross- section requirement as follows at p. 1766:
Because these groups were excluded for reasons completely
unrelated to the ability of members of the group to serve as jurors
in a particular case, the exclusion raised at least the possibility
that the composition of juries would be arbitrarily skewed in such
a way as to deny criminal defendants the benefit of the common-sense
judgment of the community. In addition, the exclusion from jury
service of large groups of individuals not on the basis of their
inability to serve as jurors, _but on the basis of some immutable
characteristic such as race, gender, or ethnic background,
undeniably gave rise to an "appearance of unfairness."_ Finally,
-87- such exclusion improperly members of these often historically disadvantaged groups of their rights as citizens to serve on juries in criminal cases. [Emphasis added.] I hesitate to attempt to articulate an all-inclusive test of distinctiveness such as "some immutable characteristic". In my view, it is preferable to deal with each by case having regard to the purposes of the representativeness requirement as set out by L'Heureux-Dube J. in Sherratt. The essential quality that the representativeness requirement brings to the jury function is the possibility of different perspectives from a diverse group of persons.
The representativeness requirement seeks to avoid the risk that persons with these different perspectives, and who are otherwise available, will be systematically excluded from the jury roll.
Exclusion of non-citizens does not infringe the representativeness
or fair cross-section requirement in this sense. There was no evidence
that non-citizens as a group share any common thread or basic
similarity in attitude, ideas or experience that would not be brought
to the jury process by citizens. The expert evidence led by the
appellants was somewhat misleading in this respect. From my review
of the evidence, it seems that the expert tended to use
opinion as a proxy for minority opinion. The evidence, however,
simply does not bear out the inference that exclusion of non-citizens
disproportionately excludes minorities from the jury. As pointed out
above, almost one-half of the 1.7 million residents of Metropolitan
Toronto over the age of 18 were not born in Canada, but most, close
to three-quarters, have become Canadian citizens.
-88- In the context of jury representativeness, citizenship, like residency in the province, is not an improper basis for defining the parameters of the jury roll. As La Forest J. wrote in Andrews v.
Law Society of British Columbia at p. 196, "[C]itizenship is a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity." All free and democratic societies have established a unique status like citizenship to which attach certain rights, privileges and obligations closely related to the concept of self-government. It will be recalled that in speaking of the importance of the jury function, L'Heureux-Dube J. held in Sherratt that the jury can act as the conscience of the community and as the final bulwark against oppressive laws or their enforcement. I see no reason why this important aspect of self-government should not be reserved for citizens, where, as here, exclusion of non-citizens does not affect the representativeness of the jury roll.
The intervener Laws argues that immigration status is a proxy for
other potentially relevant characteristics, especially colour. See
Ivan Head, "The Stranger in our Midst: A Sketch of the Legal Status
of the Alien in Canada", Can. Y.B. Int'l L. (1964), at 107. Thus, he
argues that exclusion of non-citizens undermines the
of the jury especially as regards colour.
-89- The evidence presented here, however, fails to demonstrate the point. As noted above, citizens, at least in Metropolitan Toronto, are of all races, colours and national origin. According to the evidence adduced in the Laws case itself, including non-citizens in the panel would increase the likelihood of selecting a black person for the pool by only .9%. In my view, this cannot affect the representative nature of the array. The deliberate exclusion of distinctive groups based on characteristics such as race, sex, colour, religion or national origin might well infringe the requirement of a jury selected from a fair cross-section of the community. Exclusion of certain persons based upon their immigration status is simply not of that quality.
In my opinion, Mr. Laws is making an equality argument. He argues that the exclusion of non-citizens has the effect of excluding a "disproportionate number of his peers" from the panel.4 I make no comment on whether or not this is a valid argument in the Laws appeal. It simply does not arise in this case.
The appellants argue, as held by the trial judge, that non-citizens
must be considered distinctive for the purpose of the jury guarantee
in s. 11(f) because the Supreme Court of Canada
4 His point appears to be this. While excluding non-citizens only
reduces the probability of a black person being on any particular
jury panel by less than 1%, since the number of blacks on any
particular panel is already small as compared to whites, any
increase in the likelihood of there being a black on the panel
is a benefit to the black accused. Equally, any decrease in the
probability of a black being on the panel is a disadvantage to a
black accused. These arguments are best left to the Laws appeal
where it will be for the court hearing that case to determine
whether Laws' equality rights have been violated even if there is
no violation of his s. 11 rights.
-90- held in Andrews v. Law Society of British Columbia that non-citizens fall into an analogous category for the purposes of s. 15 of the Charter.
In my view, the trial judge erred on this point. Sections 11 and
15 have different purposes and guarantee different rights to different
persons. In Andrews, Wilson J. explained at p. 152 the rationale for
including non-citizens in s. 15: "Relative to citizens, non-citizens
are a group lacking in political power and as such vulnerable to
having _their_ interests overlooked and _their_ rights to equal
concern and respect violated." The focus of s. 15 is on the claimant,
the person who is vulnerable to discrimination from the majority. For
the reasons that Wilson J. and the other members of the court gave
in Andrews, non-citizens require the protection of s. 15. The rights
protected by s. 11 are entirely different and require an entirely
different analysis. They focus on the need to protect the accused
from abuse by the state. In the context of s. 11, the right to a jury
trial carries a right to a petit jury selected from a jury roll that
is reasonably representative of the community having been selected
from a fair cross-section of the community. Exclusion of persons
based solely on their immigration status does not detract from the
protection afforded an accused by s. 11 of the Charter.
-91- As the appellants have failed to demonstrate a violation of s. 11(d) or (f), it is unnecessary to consider whether the exclusion of non-citizens would constitute a reasonable limit under s. 1.
6. Exclusions Based on Occupation and Marital Status The other exclusions challenged by the appellants may be dealt with briefly. The appellants have failed to demonstrate that the exclusion of physicians, veterinarians and coroners produces an unrepresentative jury array. These exclusions are three of several exclusions in s. 3(1) of the Juries Act, as it read at the time of the trial, based on occupation.
Physicians, veterinarians and coroners cannot fairly be said to
represent a distinctive group. The opinion of the defence expert was
that their exclusion results in the exclusion from the array of
some of the better educated persons in the society. Even if level
of education were a distinctive characteristic, and in my view
it is not, the exclusion of a few thousand persons from a pool of
over one million persons is trivial and in no way undermines the
legitimacy of the jury array. As White J. said in Duren v. Missouri,
99 S.Ct. 664 at 671 (1979), [quoting in part from Taylor v. Louisiana,
95 S.Ct. 692 (1975)], "[I]t is unlikely that reasonable exemptions,
such as those based on special hardship, incapacity or community
-92- needs 'would pose substantial threats that the remaining pool of jurors would not be representative of a community'.
The appellants also complain of the exclusion of the spouses of judges, lawyers and persons engaged in the enforcement of law. The appellants argue that exclusion of this group is discrimination on the basis of marital status. To the extent that the appellants seek to invoke the rights of the persons allegedly discriminated against, the earlier comments on standing apply. Moreover, this provision has now been repealed by the Legislature.
The appellants also argue that the exclusion of spouses had the effect of excluding a distinctive group, namely women. They argue that since the majority of persons in the named occupations are men, exclusion of their spouses tends to disproportionately exclude women.
However, as with the argument made by Mr. Laws regarding blacks, the appellants have failed to show that exclusion of certain spouses impaired the representative nature of the jury array vis a vis gender.
The number of women who would actually have been excluded under s.
was never established in the evidence, but could represent only a very
small number of women who would otherwise be eligible to be selected
in the array, probability something less than 15,000 out of a
population of over one-half million. It cannot
-93- be said that this exclusion unfairly depleted the pool of women so as to the cross-section requirement.
The jury panel was properly constituted in accordance with valid provincial and federal legislation. The appellants have not shown that any of their nights as guaranteed by the Charter or under the Criminal Code or at common law were violated by the manner in which the array was assembled. This ground of appeal fails.
X. CORPORATE CRIMINAL LIABILITY A. Introduction The appellant Church of Scientology of Toronto makes several submissions respecting corporate criminal liability. First, it argues that the identification doctrine as set out in Canadian Dredge & Dock Co., Ltd. v. The Queen,  1 S.C.R. 662 does not apply to a non-profit corporation established for religious purposes. Second, it argues that even if the identification doctrine applies, that doctrine has been further explained by the Supreme Court of Canada, subsequent to the trial in this case, in The Rhone v. The Peter A.B.
Widener,  1 S.C.R. 497. The appellant submits that the Crown adduced no evidence that would meet the test laid down in The Rhone.
Alternatively, it submits that the trial judge did not adequately
direct the jury with respect to corporate criminal liability as
now explained in The
-94- Rhone. The appellant also argues the trial judge misdirected the jury with respect to the outer limits of the identification doctrine.
Finally, the appellant argues that the trial judge erred in placing before the jury the doctrine of wilful blindness as a new theory of liability. We called on the Crown to respond to these submissions.
B. Application of the Identification Doctrine to a Non-Profit
1. The Facts
The issue of the application of the identification doctrine to the
prosecution of a non-profit religious corporation was raised before
the trial judge in a pre-trial motion to quash the committal for
trial and for an order under s. 24(1) of the Charter staying the
proceedings for violation of freedom of religion in s. 2(a) of the
Charter. This application was expanded to include allegations of
violations of the freedom of association in s. 2(d), the right to
life, liberty and security of the person in s. 7 and the presumption
of innocence in s. 11(d). The application was argued on the basis of
the transcript from the preliminary inquiry and viva voce evidence
from religious and sociological expert witnesses called by the
corporate appellant. The evidence adduced at trial did not differ
materially from the evidence at the preliminary inquiry.
-95- The appellant Church of Scientology of Toronto was incorporated as a corporation without share capital on September 8, 1967, under Part III of the Ontario Corporations Act (now R.S.O. 1990, c. C.38). Its objects at the time were as follows:
(i) to accept and adopt the aims, purposes, principles and creed of the Church of Scientology of California;
(ii) to propagate the religious faith known as Scientology by that man's best evidence of God is the God he finds within himself and trusting with enduring faith that the Author of the Universe intended life to thrive within it; and (iii) to print and publish articles, books, lessons, periodicals, radio and or television script or other media for the purposes of dissemination of the religious faith, Scientology, to the membership and or the public.
The Corporations Act allows for a corporation without share capital
to have an unlimited number of members of the corporation. The Church
of Scientology of Toronto, however, had only three members. The
parishioners were not members, although they did pay tithes to the
Church. The Act also requires a corporation to have a board of
directors to conduct the affairs of the corporation. The evidence
indicated, however, that the board of directors was a mere
figurehead and that the real executive authority lay in the Guardian's
Office and the FLAG Bureau. During the relevant time period, the
Assistant Guardian Toronto was shown on the corporate filings
as a director of the corporation. A corporation under Part III of
the Act is to be carried on without the purpose of gain for its
members and any profits are to be used in promoting the objects of
the corporation. As I understand the
-96- theory of the appellant, the corporation held the property in trust for the parishioners, and the board of directors or the members acted as trustees.
The religious and sociological expert witnesses for the corporate appellant testified about the effect of the criminal prosecution.
They noted that they were unaware of any previous criminal prosecution of a religious institution or corporation in the "free world". They emphasized the concern that prosecution of a religious body implicates the parishioners in the wrongdoing since the public is unable to distinguish between the church as an institution and its individual adherents. Further, the public is unable to distinguish between the Church of Scientology of Toronto as a corporate entity and the Church of Scientology and its faith in general. In effect then, prosecution of the corporate entity stigmatizes the religion and its parishioners.
The witnesses also testified that the prosecution of a religious body
impairs the capacity of the religious community to participate in the
institutional life of a society. The criminal charges suggest an
element of hypocrisy within the Church in the sense that while the
adherents teach one thing, they act another way and thus are not
worthy of being followed or supported financially. The witnesses
further noted that the negative effects of prosecution on newer
religions such as Scientology are more profound than on established
-97- 2. Ruling of the Trial Judge The trial judge held that the fact that the corporate appellant is a religious organization does not render it immune from prosecution.
In this regard, he relied on the decision of this court in Re Church of Scientology et al. and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449. The trial judge was satisfied that the identification doctrine of corporate criminal liability applies to a non-profit corporation with religious objects. He held that the prosecution of the appellant did not involve any limit on the freedoms of religion or association in s. 2 of the Charter because the illegal acts of the members of the Guardian's Office were not condoned by the Church doctrine. He also concluded that the prosecution did not violate the s. 7 right to life, liberty or security of the person of any human being, and that the s. 11(d) presumption of innocence was not violated.
3. The Issue
Although the evidence on the application before the trial judge
would appear to raise the broad issue of the propriety of _any_
criminal prosecution of a religious corporation the appellant does
not seem to argue that a religious corporation can never be
prosecuted criminally. Rather, it makes a narrower argument. The
appellant argues that prosecution _through the identification
doctrine_ violates ss. 2(a), 2(d), 7 and 11(d) of the Charter. It
-98- submits that a religious corporation only be convicted if the board of directors authorized the illegal activity or failed to exercise due diligence to prevent it.
4. Analysis For the reasons that follow, I would hold that the identification doctrine as explained in Canadian Dredge & Dock applies to non-profit corporations established for religious purposes. Since s. 7 of the Charter does not apply to corporations, it is unnecessary to determine whether the doctrine infringes s. 7. I am satisfied that the doctrine does not violate s. 11(d) of the Charter. Assuming without deciding that the identification doctrine infringes the freedoms of religion and association as guaranteed by ss. 2(a) and 2(d) of the Charter respectively, that infringement constitutes a reasonable limit in a free and democratic society under s. 1. In the result, it is unnecessary to decide whether the appellant has standing to rely on s. 2 of the Charter.
(a) The Identification Doctrine
The theoretical impediment to attributing criminal liability to a
corporation, an artificial entity, is the requirement for most crimes
that the accused be proved to have mens rea. This obstacle had been
overcome at common law by attributing to the corporation the acts and
the state of mind of certain of its agents. In Canadian Dredge & Dock,
Estey J., for
-99- the Supreme Court of Canada, explained the basis for criminal liability to a corporate entity through the "identification doctrine", and set out the elements and certain limits of liability. The essential holdings in the case can be briefly summarized for the purposes of this appeal.
Estey J.'s discussion of the identification doctrine assumed that a corporation would be liable under the doctrine for the criminal acts of its board of directors. He held at p. 682 that the corporation will also be liable for the criminal acts of the employee who is its "alter ego" or "directing mind", based on the notion that the identity of the directing mind and the identity of the corporation coincide.
He also considered some of the circumstances in which the corporation
would not be liable for the acts of the directing mind. The acts of
the directing mind must be performed within the scope of his or her
authority or, put another way, when the directing mind is "carrying
out his assigned function in the corporation" (at p. 685). Even then,
Estey J. stipulated at p. 713 that the corporation will not be
liable where the directing mind was acting totally in fraud of the
corporation and where the act was intended to and does result in
benefit exclusively to the directing mind. As will be seen below when
considering The Rhone, one of the important issues left to the jury
in this case was whether the persons alleged to be directing minds
of the corporate appellant were carrying out a function assigned to
them by the corporation.
-100- Mr. Ruby, on behalf of the corporate appellant, does not take issue with the aspect of the identification doctrine that imposes liability on the corporation for the acts of the board of directors. He argues, however, that the broader aspects of the doctrine should not be applied to non-profit corporations and particularly those with religious objects.
(b) Does the Identification Doctrine Apply to Non-Profit Corporations?
The identification doctrine as explained in Canadian Dredge & Dock represents a compromise between immunity for corporations and the imposition of vicarious liability on the corporation for any of the acts of its agents. As Estey J. explained, the increasing importance of corporations in society, and particularly as they became the principal vehicle of commerce in the community, made it imperative that they be subject to the criminal law in some fashion.
Mr. Ruby submits that the rationale for the identification doctrine
reveals that it was never intended to apply to non-profit corporations
without share capital. He points out that the initial motivation for
extending criminal liability focused on the fact that the corporation
had become the principal vehicle of commerce. Non-profit corporations
are not involved in commerce in this sense. They do not have
shareholders, and any profits are to
-101- be used to further the objects of the corporation rather than to enrich the members. Mr. Ruby relies particularly on the following passage from Canadian Dredge & Dock at p. 694:
The corporation which set the directing mind in position to
do the wrong will suffer an economic penalty. _While it is true
that this penalty will feed through to the stockholders, who
may well be totally innocent as in the case of a large public
company, it may be seen as a risk or cost associated with the
privilege of operating through the corporate vehicle._ In the
case of personal corporations, the imposition of a criminal
penalty on the corporation may be an additional penalty imposed
upon the 'personal' corporate stockholder but such a result
would be an acceptable part of the sentencing process as it
simply reflects the economic identification, as well as the
legal identification, present in such a corporation. In the
case of a public corporation, the economic identification factor
is absent, and in a theoretical sense there is an additional
penalty for the same act which must be justified in some way
other than that suggested above. This is the inevitable result
of the pragmatic adoption of the attribution of the acts of its
delegates to the delegating corporation in order to bring that
corporation within the system of criminal justice. Whether
the route taken be the doctrine of respondeat superior or
identification, the result is the same. _The corporation
in reality has three elements: the legal entity, the personal
shareholder (a natural person directly or indirectly), and
the employee. Once the process is set in motion, the criminal
penalty will extend directly or indirectly to all three which
is quite unlike the situation of a natural proprietor where
only two of these elements are present. All this, in my view,
while not entirely logical, is a tolerable result for a
community where reality dictates corporate criminal
accountability in certain circumstances. [Emphasis added.]
In my view, the identification doctrine is fully applicable to
non-profit corporations without share capital. The rationale for the
imposition of criminal liability on
-102- corporations is not that they make profit or are engaged in commerce, or even that they have shareholders. Rather, since corporations occupy such a central role in society, it would be unacceptable to have them operating outside the criminal law.
As the excerpt quoted above indicates, Estey J. recognized that the economic penalty may feed through to shareholders who, in a large public corporation, are totally innocent. This was nevertheless a "tolerable result," and a risk or cost associated with the privilege of operating through the corporate vehicle. The same may be said for the non-profit corporation. The economic penalty may be borne by the members or, as in this case, the parishioners who may be totally innocent. This is, however, a risk or cost associated with the privilege of operating through the corporate vehicle. In this respect, I note that the members enjoy the same special protection from liability as shareholders of a business corporation. Section 122 of the Corporations Act provides as follows:
122. A member shall not, as such, be held answerable or responsible for any act, default, obligation or liability of the corporation or for any engagement, claim, payment, loss, injury, transaction, matter or thing relating to or connected with the corporation.
Although he did not refer directly to non-profit corporations, Estey
J. clearly contemplated that such corporations must be brought within
the fold of criminal liability, and that the identification doctrine
was the appropriate basis for doing so. After pointing out that
-103- criminal liability for a human actor is personal and he or she is not responsible for the acts of an agent. Estey J. said at p. 692:
On the other hand, the corporate vehicle now occupies such a large portion of the industrial, commercial _and sociological sectors_ that amenability of the corporation to our criminal law is as essential in the case of the corporation as in the case of the natural person. [Emphasis added.] The evidence in this case bears out the important role of the non-profit corporation in modern society. The latest figures available at the time of trial indicated that there were over 25,000 corporations without share capital incorporated in Ontario; that there were approximately 65,000 registered charities in Canada, and almost 30,000 of these carry out religious activities; and that Canadian taxpayers donated almost $3 billion to charities. To leave these organization outside the purview of the criminal law would be intolerable. Some of the most important activities undertaken in society are performed under the umbrella of the corporate vehicle.
I can see no rational basis for adopting a different test for
criminal liability in the case of non-profit corporations solely
because they do not have shareholders or because any profits are
used to promote the objects of the corporation rather than to enrich
the shareholders personally. The need for regulation of the conduct
of the corporation through the criminal law is the same.
-104- Accordingly, subject to the arguments under the Charter, which were not available in Canadian Dredge & Dock, a pre-Charter case, I am satisfied that the identification doctrine applies to this corporate appellant.
(c) Sections 7 and 11(d) of the Charter The appellant argues that imposing liability on a corporation through the identification doctrine infringes ss. 7 and 11(d) of the Charter. The argument, as I understand it, is that even though Estey J. avoided reliance on vicarious liability in his description of the identification doctrine, in reality, the doctrine has the potential to find a corporation criminally liable in the absence of what Mr.
Ruby terms "corporate fault". Mr. Ruby seems to argue that corporate fault can only be based on the actions and mens rea of the board of directors. This would require proof that the board of directors either authorized the criminal activity or failed to exercise due diligence to prevent the wrongdoing by the directing minds other than the board of directors.
The first problem with this argument is to locate it within the
proper constitutional provision. To the extent that the argument
depends on s. 7 of the Charter, the appellant can have no relief. It
is clear that s. 7 does not apply to corporations. In Irwin Toy
-105- Ltd. v. Quebec (Attorney General),  1 S.C.R. 927, Dickson C.J.C., for the majority, summarized at p. 1004 the holding that s. 7 does not apply to corporations:
That is, read as a whole, it appears to us that this section was intended to confer protection on a singularity human level. A plain, common sense reading of the phrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved; only human beings can enjoy these rights. _"Everyone" then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. In this regard, the case of R. v. Big M Drug Ltd, [ 1 S.C.R. 295] is of no application. There are no penal proceedings pending in the case at hand, so the principle articulated in Big M Drug Mart is not involved._ [Emphasis added.] Mr. Ruby attempts to avoid the effect of the decision in Irwin Toy by arguing that the imposition of liability upon this appellant affects the security interests of the members and parishioners of the Church.
In my view, Irwin Toy also forecloses any reliance by a corporation on the s. 7 rights of other actors. Dickson C.J.C. wrote the following at p. 1002:
In order to put forward a s. 7 argument in a case of this kind where the officers of the corporation are not named as parties to the proceedings, the corporation would have to urge that its own life, liberty or security of the person was being deprived in a manner not in accordance with the principles of fundamental justice.
In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter.
Mr. Ruby also argues that the appellant is entitled to rely on the
caveat in Irwin Toy that, based on Big M Drug Mart, a corporate
accused can, in penal proceedings, assert the alleged
-106- violation of an individual accused's s. 7 right. However, unlike the law at issue in Big M Drug Mart, an individual could never be charged pursuant to the identification doctrine. Since that doctrine applies only to corporations, the logic of Big M Drug Mart does not apply.
See comments of Lamer C.J.C. in R. v. Wholesale Travel Group Inc.,  3 S.C.R. 154 at 181-82. Since the corporate appellant cannot invoke s. 7, it is unnecessary to determine whether the identification doctrine infringes s. 7.
The appellant's inability to rely on s. 7 of the Charter also
forecloses any argument based on an alleged infringement of s. 11(d)
of the Charter. As Lamer C.J.C. explained in R. v. Vaillancourt,
2 S.C.R. 636 at 654-55, the presumption of innocence in s. 11(d)
requires that before an accused can be convicted, the trier of fact
must be satisfied beyond a reasonable doubt of the existence of all
of the essential elements of the offence. These essential elements
include not only those set out in the relevant statute, but also
those required as a matter of fundamental justice by s. 7 of the
Charter. The common law doctrine imposes liability upon the
for the unlawful acts of its directing minds, whether or not the board
of directors authorized or was even aware of the acts, and whether or
not the board exercised due diligence to prevent the commission of
those acts. Since s. 7 of the Charter does not apply to corporate
liability, no additional elements are implied. The corporate
appellant's rights under s. 11(d) are therefore not infringed.
-107- (d) Section 2(a) of the Charter The corporate appellant argues that the application of the identification doctrine to a non-profit religious corporation infringes the freedom of religion guarantee in s. 2(a) of the Charter. Mr. Bernstein raises a standing argument here, as be did in relation to the issue of eligibility for service on a jury. He submits that a corporation cannot have a religion and the appellant therefore has no right to invoke s. 2(a) of the Charter. He points out that Big M Drug Mart, itself a freedom of religion case, does not apply since by definition the identification doctrine applies only to corporations.
I see a vast difference between an accused attempting to invoke the rights of potential jurors who have no connection to the accused, and a corporation with religious objects invoking the religious freedom of its parishioners. Although it has a corporate form, the corporation embodies to some extent the beliefs of its human parishioners. The identification between the corporation and the parishioners is so close that I would be reluctant to find that the corporation could not rely on the religious freedom of its parishioners.
In R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713, four
retailers argued that the provincial Sunday closing legislation under
which they had been charged violated
-108- 2(a) of the Charter. In dealing with the accused's submission that even if the purpose of the legislation was not to infringe freedom of religion it had that effect, both Dickson C.J.C. and Beetz J.
appeared to assume that the accused corporations could rely on the s. 2(a) rights of their individual customers. Dickson C.J.C. noted that the legislation abridged the religious freedom of consumers who observe Saturday rather than Sunday as a day of rest. Beetz J. also dealt with the impact on consumers, but found that the evidence was so tenuous as to be insufficient to establish even a prima facie infringement of s. 2(a).
The question of standing was not addressed explicitly in Edwards Books. Nevertheless, there is the implicit suggestion in the reasons that in a proper case, an accused can rely on the religious freedom of other persons who are directly affected by the prosecution of the accused. Similar reasoning may be applied to the Crown's assertion that the appellant has no standing to assert the freedom of association of the members or parishioners of the Church. Because of the uncertainty as to the appellant's standing under ss. 2(a) and 2(d), I would prefer to deal with these arguments on their merits.
In Edwards Books at pp. 758-59, Chief Justice Dickson held that
indirect coercion by the state is "comprehended within the evils from
which s. 2(a) may afford
-109- protection." He then explained the limits of the protection from indirect burdens afforded by s. 2(a):
Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion. _Otherwise the Charter would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship._ In my opinion, it is unnecessary to turn to s. 1 in order to justify legislation of that sort. ... The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, _legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial:_ see, on this point, R. v. Jones,  2 S.C.R. 284, per Wilson J. at p. 314. [Emphasis added.] The appellants argument, in essence, is that prosecution of this religious corporation through the identification doctrine constitutes a non-trivial burden on the practice of the Scientology religion by its members and parishioners. Those persons are forced to bear the cost of the defence and to suffer the stigmatization of prosecution.
If the corporation is convicted, the members and parishioners must
raise funds to pay the fine or risk loss of the Church property,
including their place of worship. The burden of defending a serious
criminal charge is far more severe than the modest sales tax example
used by Dickson C.J.C. in Edward Books.
-110- The Crown responds that this issue has been determined against the appellant by the decision of this court in Re Church of Scientology et al. and the Queen (No. 6). The issues in that case concerned the validity and execution of search warrants at the Church premises in Toronto. The material seized during the searches played some part in the subsequent prosecution. This court held that although it is not the function of the courts to pass judgment on the validity of any particular religious belief, it would not be appropriate for the court to rule that the allegations against the appellant Scientology were not justiciable. The court made some broad comments about the application of the criminal law to religious practices at pp. 469-70:
In our opinion, the criminal law of Canada does operate to limit religious practices even when based upon sincerely or genuinely held religious beliefs. 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. Freedom of religion has not prevented Canadian courts in the past from restricting sincerely held religious beliefs or practices in cases of compelling public interest. Even in the case of United States v. Ballard [(1944), 322 U.S. 78], the count at p. 87, adopted the statement in Davis v. Beason (1890), 133 U.S. 333 at p. 342:
With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, *provided always the laws of society designed to secure its peace and prosperity and the morals of its people are not interfered with.* [Emphasis added.] The appellant Scientology relies on R. v. Big M Drug Mart Ltd.
supra. to support its position on this point. _However, with
-111- great respect to those advocating the contrary, we do not believe that Big M Drug mart assists a proponent of the view that the actions of a church are non-justiciable. We do not take Chief Justice Dickson's reference to religious "practices" to mean that "practices" that are otherwise illegal are to be protected by freedom of religion._ In fairness to the appellant, counsel conceded that to the extent that religious beliefs run afoul of criminal law proscriptions such as those relating to bigamy or the use of drugs, a belief in polygamy or the use of hallucinogenic drugs is not a defence. Those who practice these beliefs, as opposed to merely holding them, can be subject to attack. We accept that any citizen, whether motivated by religious beliefs or otherwise, is entitled to his or her own opinion as to the validity of the laws of this country. Debates as to abortion, capital punishment and euthanasia are examples of issues where the courts will not interfere with thought or the exercise of free speech. However, as will be developed later, _one could conclude that the appellant Scientology, in the instances alleged by the informant, has gone well beyond postulating controversial religious beliefs and, through its senior officers, is committing a number of serious criminal act._ [Emphasis added.] In my view, Re Church of Scientology et al. and the Queen (No. 6) establishes that a corporation with religious objects is not immune from prosecution for the commission of criminal acts. There is also much to be said for the respondent's submission that this court has held that such prosecution does not infringe freedom of religion.
However, Mr. Ruby submits that the basis upon which the corporation
is held liable is still an open question in this count. As pointed
out above, Mr. Ruby advances the position that although prosecution
of a corporation with religious objects does not per se
-112- infringe freedom of religion, the application of the identification to such a corporation does. He argues that while it may be tolerable for the state to prosecute a corporation with religious objects for the criminal acts of persons in charge of the corporation, namely the board of directors, this does not justify punishing the corporation for the wrongdoing of other employees or agents. As I understand the argument, in effect, vicarious liability is imposed on the "innocent" corporation and the "innocent"
parishioners and members for the acts of persons who may be acting largely for their own purposes and at odds with the religious doctrine and who do not have the authority of the "trustees" of the corporation's assets.
Although Estey J. in Canadian Dredge & Dock suggested at p. 683 that the identification doctrine creates liability in the corporation on a "primary" rather than "vicarious" basis, he later conceded at p. 692 that, of necessity, any attribution of liability to a corporation will be vicarious in some sense:
Thus where the defendant is corporate the common law has
become pragmatic, as we have seen, and a modified and limited
'vicarious liability' through the identification doctrine has
emerged. In this context I use the word "vicarious" in the sense
that it is defined in the principal dictionaries, including the
Shorter Oxford English Dictionary (1959), where the term is
defined: "that takes or supplies the place of another thing or
person; substituted instead of the proper thing or person."
-113- Stevenson J. expressed a similar view in R. v. CIP Inc.,  1 S.C.R. 843 at 855:
_We must also remember that corporate criminal liability is essentially vicarious liability based upon the acts and omissions of individuals:_ "a corporation may only act through agents" (Canadian Dredge & Dock [citation omitted] at p. 675).
Extending Charter guarantees to corporations will, in some circumstances, afford a measure of protection to those individuals. [Emphasis added.] I am prepared to assume, without deciding, that the common law identification doctrine constitutes a non-trivial burden on the practice of the Scientology religion and therefore infringes s. 2(a) of the Charter. For the reasons set out below, however, I am satisfied that this common law rule is a reasonable limit under s. 1 of the Charter.
(e) Section 1 of the Charter In R. v. Swain,  1 S.C.R. 933, Lamer C.J.C. explained the application of s. 1 to a common law rule. He held at pp. 978-89 that if it is possible to reformulate a common law rule so that it would not infringe the Charter, such a reformulation should be undertaken.
If it is not possible, the court must consider whether the common law rule can be upheld as a reasonable limit under s. 1.
In this case, it is necessary to resort to the s. 1 analysis. There
is no reformulation of corporate criminal liability that will not
infringe s. 2(a) of the Charter. The
-114- mere prosecution of the Church will stigmatize the parishioner and members, and divert funds from religious purposes to defence of the charge. Even if the prosecution were limited to the acts of the board of directors, it would infringe freedom of religion since liability would still be imposed on the corporation on a vicarious basis. The "innocent" parishioners would be required to fund the defence, and Church property would be at risk if the Church were convicted and a fine imposed.
The s. 1 test is well established. Two conditions must be met:
1. the objective of the impugned provision must be pressing and substantial; and 2. the means chosen to achieve the objective must pass a proportionality test; that is to say, they must:
(a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right or freedom in question as "little as
(c) be such that their effects on the limitation of the right
or freedom are proportionate to the objective.
-115- (i) Objective The objective of applying the identification doctrine of criminal liability to corporations with religious objects relates to a fundamental tenet of our society, namely, that no person is above or beyond the law. The Charter itself in the preamble recognizes the supremacy of the rule of law. While there is no precise definition of the rule of law, it surely embraces the second of Dicey's three principles of the rule of law: the equal subjection of all classes to the ordinary law: Dicey, Introduction to the Study of the Law of the Constitution. 10th ed. (1959), at p. 193. In R. v. Turpin,  1 S.C.R. 1296 at 1329, Wilson J., referring to the guarantee of equality before the law in s. 15 of the Charter, noted that this value has "historically been associated with the requirements of the rule of law that all persons be subject to the law impartially applied and administered."
Having regard to the important position that corporations occupy in modern society, subjecting corporations -- including those with religious objects -- to the ordinary criminal law is a pressing and substantial objective, and is implied by the rule of law.
(ii) Rational Connection
The identification doctrine is a pragmatic but rational way of
making a corporation liable for criminal acts committed on its behalf
or at least partly for its benefit.
-116- In contrast to the American doctrine of respondeat superior, which holds a corporation liable for the acts of any employee performed within the scope of employment, the identification doctrine represents a relatively limited response to the necessity of bringing all corporations within the purview of the criminal law. It imposes liability only for the acts of the corporate governing body and those to whom that body has delegated executive authority. Moreover, even if the employee is deemed to be a directing mind of the corporation, the corporation will not be liable for that employee's acts if they are in total fraud of the corporation. As Estey J.
wrote in Canadian Dredge & Dock at p. 719:
The identification theory, however, loses its basis in rationality when it is applied to condemn a corporation under the criminal law for the conduct of its manager when that manager is acting not in any real sense as its directing mind but rather as its arch enemy.
Given these limitations on the identification doctrine, I am satisfied that it is rationally connected to the objective.
(iii) Minimal Impairment
At this stage of the proportionality analysis, the court must ask
whether the impugned law infringes the Charter right "as little as
possible". In the case of a common law rule, less judicial deference
is warranted than in the case of a legislative provision. The court
must adopt "the least intrusive common law which will attain the
-117- disproportionately affecting rights": R. v. Swain at p. 984. This requires the court to explore alternative means of achieving the pressing and substantial objective.
At the outset, it is important to note the limitations on the identification doctrine.
As Estey J. explained in Canadian Dredge & Dock at p. 693:
[The identification doctrine] merges the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation.
The doctrine does not, however, extend criminal liability to any other agents or employees. Further, the identification doctrine operates only where the directing mind is acting within the scope of his or her authority. Finally, even if the act is committed by a directing mind of the corporation carrying out his or her assigned function, no liability will be attributed to the corporation where the criminal act is totally in fraud of the corporate employer and where the act is intended to and does result in benefit exclusively to the employee.
The appellant suggests the imposition of corporate criminal
liability, in the case of a non-profit religious corporation, only
where the board of directors either authorized the illegal activity
or failed to exercise due diligence to prevent it. Arguably, this
alternative approach would address one of the objectives of the
imposition of criminal liability by
-118- forcing the corporation to improve its organizational structure to prevent criminal wrongdoing within the organization. Liability based on the acts or omissions of the board would encourage the board to adopt policies to ensure clear lines of accountability, and that it received adequate information of corporate activity.
However, failing to impose corporate criminal liability for the acts of the directing minds who are not on the board of directors fails to take into account one of the fundamental rationales for imposing criminal liability on the corporation in the first place.
The wrongdoing of the agents of a corporation is not done in a vacuum
and, ordinarily, not solely to profit the individual agent. As
Professor Dawn Russell points out in "Paedophilia: The Criminal
Responsibility of Canada's Churches" (1992), 15 Dalhousie L.J. 380
at 394 in comparing the for-profit corporation and the church,
"[M]uch of the corporate wrongdoing done by both of these types
of organization is attributable to the phenomena of institutional
loyalty or of loyalty of their agents to the goals of the
institution." The agents commit the criminal acts not for personal
gain, but to protect the institution and its reputation. To fail to
impose criminal liability on the corporation for acts of persons
with managerial responsibility acting in the name of the corporation
would result in a substantial gap in the deterrent objective of the
criminal law. In fact, it could encourage managers to become more
-119- secretive to protect the corporation while they in engage in illegal activities for the perceived greater good of the corporation.
The imposition of criminal liability on the corporation with religious objects for the acts of its managers is also necessary to protect vulnerable persons within the hierarchy. The managers have the day-to-day responsibility for the use of vast sums of money for important societal purposes. To relieve the corporation of liability when the managers have abused their positions to benefit the corporation would aggravate the powerlessness of the victims. In this case, the victims were large, powerful institutions such as the O.P.P. and the Ministry of the Attorney General. In another case, however, the victims could be the parishioners or members themselves.
To say that the individual managers could be prosecuted is simply not an adequate response. It fails to take into account that the acts are not for personal gain, but for the benefit of the institution.
The Guardian's Office operated not to benefit its members or even
the individual parishioners. The plant operations were for the
benefit of the Church of Scientology of Toronto as an institution,
to enable it to carry on as an institution. Notwithstanding the
significant stigma of a criminal conviction, it is entirely
-120- the institution be held accountable for the wrongdoing of the individuals whom it put in a position to perpetrate these crimes on its behalf.
In addition to failing to achieve the objective of bringing religious corporations under the criminal law, it is unclear to me how the appellant's proposed alternative would impair the freedom of religion any less than the identification doctrine. That doctrine already imposes liability for the acts or omissions of the board of directors, but only where there is mens rea. Mere negligence or lack of due diligence by the board does not render the corporation liable for criminal offences. Imposing criminal liability for the negligence of the board might, in fact, be more intrusive of the freedom of religion. As Mr. Bernstein points out, many non-profit corporations rely on volunteer boards of directors. The day-to-day management of the corporation is delegated to its managers. Imposing criminal liability based on negligence by the board of directors would force these volunteers to become more involved in the day-to-day operations. This would no doubt be a positive development from the standpoint of its potential to prevent corporate crime. It would, however, make it that much more difficult to attract people to serve on these boards.
Further, if the courts were to adopt a lower standard of criminal
liability for corporations with religious objects, this would
necessarily invite inquiry into whether these
-121- objects were genuine or a mere sham to take advantage of the preferential treatment. This would not be difficult for the established religions. The smaller, lesser known sects, those groups that are most vulnerable to the tyranny of the majority, would be at greatest risk. Their religious beliefs and practices would be placed on trial. This would be a highly undesirable consequence and essentially at odds with the Charter guarantee of freedom of religion.
As Henry Hansmann observes in "The Evolving Law of Nonprofit Organizations: Do Current Trends Make Good Policy?" (1988-89), 39 Case Western L. Rev. 807 at 820, "[T]he best way to assure that organizational law neither penalizes nor promotes religion is to keep it from discriminating between religious and non-religious organizations."
Imposing liability on the religious corporation on a different basis than a secular corporation would also disadvantage religious corporations in other ways. Holding the religious corporation to a lower standard may simply aggravate the mistrust that some feel towards religious organizations. Hansmann makes this point in relation to fundraising at pp. 819-20:
The usual argument offered to justify a lower degree of
accountability for religious organizations, in corporate law
and elsewhere, is that higher standards would be excessively
intrusive and would interfere with the separation of church
and state. _But this argument is unpersuasive, at least in
the context of corporate law. Indeed, one might argue that
establishing weaker standards of accountability for religious
nonprofits actually *disadvantages* religious organizations
relative to secular ones. These low
-122- standards result in greater opportunity for fraud among religious organizations, leading to a spirit of distrust toward such organizations on the part of those who would otherwise support them. This distrust handicaps those organizations in raising funds and otherwise securing the commitment and support of the public._ [Emphasis added.] For the above reasons, I am view that the application of the identification doctrine to non-profit religious corporations infringes the appellant's Charter rights "as little as possible".
It is not possible to fashion a different rule of criminal liability for such corporations that will attain the objective and be less intrusive of Charter rights.
(iv) Proportionality of Effects The final step of the proportionality test requires that there be a "proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures": Digeneous v.
Canadian Broadcasting Corp.,  3 S.C.R. 835 at 889.
Given the limits on the reach of the identification doctrine and
the importance of the rule of law and protection of the vulnerable,
I am satisfied that there is an appropriate proportionality between
the deleterious effects of the application of the identification
-123- doctrine and the objective. I also believe that deleterious effects do not outweigh the salutary effects. The appellant's own evidence established that _any_ prosecution, even of the individual perpetrators, would have a significant deleterious effect on the organization and its parishioners and members. This stigmatization is inevitable whether or not the corporation itself is prosecuted and whether or not liability is limited to the acts of the board of directors. I cannot see how any additional stigmatization and related deleterious effects from the identification doctrine outweigh the salutary effect of vindicating the rule of law.
In contrast, for the reasons set out above in relation to minimal impairment, the deleterious effects of the appellant's proposed modification to the common law rule would, in my view, far outweigh the alleged salutary effects of such a solution. This ground of appeal fails.
(f) Section 2(d) of the Charter
The corporate appellant also relies on freedom of association in
s. 2(d) of the Charter. In my view, assuming the identification
doctrine violates s. 2(d), for the reasons already given in relation
to freedom of religion, I am satisfied that any violation of s. 2(d)
can be justified under s. 1 of the Charter. The freedom of association
that the appellant seeks to
-124- invoke is the freedom to associate for religious purposes. Nothing is added to the argument by invoking s. 2(d).
XI. APPLICATION OF THE IDENTIFICATION DOCTRINE TO THIS CASE A. The Application of The Rhone The corporate appellant argues that even if the identification doctrine applies to it, the trial judge failed to direct the jury properly on the doctrine as it is now understood in light of the Supreme Court's decision, after the trial in this case, in The Rhone v. The Peter A.B Widener. In fact, the appellant submits that based on the law as enunciated by Iacobucci J. in The Rhone there was no evidence upon which the appellant could be convicted. The appellant relies mainly on the following excerpts from The Rhone at pp. 520-2l and 526:
As Estey J.'s reasons [in Canadian Dredge & Dock] demonstrate, the focus of inquiry must be whether the impugned individual has been delegated the "governing executive authority"
of the company within the scope of his or her authority. I
interpret this to mean that one must determine whether the
discretion conferred on an employee amounts to _an express or
implied delegation of executive authority to design and supervise
the implementation of corporate policy rather than simply to
carry out such policy. In other words, the courts must consider
who has been left with the decision-making power_ in a relevant
sphere of corporate activity. [Emphasis added.]
-125- With respect, I think that the courts below overemphasized the significance of sub-delegation in this case. _The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis, whether at head office or across the sea._ While Captain Ketch no doubt had certain decision-making authority on navigational matters as an incident of his role as master of the tug Olio and was given important operational duties, governing authority over the management and operation of Great Lakes' tugs lay elsewhere. [Emphasis added.] The appellant submits that the trial judge never instructed the jury that to find the appellant guilty on the basis of the identification doctrine, it must be shown that persons alleged to be the directing minds of the corporation had been delegated authority to design and supervise the implementation of corporate policy. The appellant further submits that the bulk of the evidence in this case is that persons such as Bryan Levman had no authority to design corporate policy. Rather, their role was to implement policies established elsewhere and, in particular, by the Guardian Jane Kember and the officials in the Guardian's Office World Wide.
In my view, the decision of the Supreme Court of Canada in The
Rhone did not apply to this case, and the trial judge properly
directed the jury with respect to corporate criminal liability. The
discussions by Iacobucci J. in The Rhone and Estey J. in Canadian
Dredge & Dock are premised on a corporate structure in which ultimate
-126- lies with the board of directors. The identification doctrine renders the corporation liable as a result of the acts, in addition to those of the board of directors, of those persons to whom the board has expressly or impliedly delegated executive authority. That, however, was not this case. The Church operated in the context of a rigid command structure in which the board of directors was irrelevant.
The board of directors did not appoint, much less delegate to, the senior officials of the Church. In fact, the members of the board were themselves required to sign undated letters of resignation. The evidence is clear that the appellant's board of directors had no executive authority. Thus, it is beside the point to attempt to apply principles relating to the degree of delegation of that authority.
At trial, the issues of corporate liability did not concern whether
the illegal acts were carried out with the knowledge of or by
persons with executive authority. The only real issues were whether
information-gathering was within the scope of authority of the
persons in control of the Guardian's Office and, more importantly,
whether the Guardian's Office was an autonomous body, separate and
apart from the Church of Scientology of Toronto. The trial judge's
directions on these two issues were clear and unimpeachable. The
following excerpt from the charge to the jury demonstrate the context
in which the issues were developed at the trial:
-127- The real issue in this case, however, with respect to the corporate accused, is whether the information-gathering activities of the Guardian Office in Toronto were a field of operation of Church of Scientology of Toronto, assigned to the Guardian Office in Toronto by Church of Scientology of Toronto.
The theory of the defence of Church of Scientology of Toronto is that the information-gathering activities of the Guardian Office in Toronto were not a field of operation of Church of Scientology of Toronto, and were not assigned to the Guardian Office in Toronto by Church of Scientology of Toronto. And every time I say the name, I am trying to emphasize "Toronto", because there are, of course, other corporations in Canada and in the United States which are "Church of Scientology of" - such as Vancouver - and they are not concerned with Church of Scientology of Toronto, whose head offices and its offices were located in the City of Toronto.
The defence submits that the field of operation that the people in the Guardian Office in Toronto were concerned with was a field of operation of the Guardian Office, which was an autonomous body, separate and apart from the persons or organizations that control the delivery of the services of Scientology to adherents throughout the world.
This direction was repeated in one form or another with respect to each count. For example, in relation to the breach of trust count respecting the Ministry of the Attorney General, the trial judge directed the jury as follows:
In this case, in respect of any count in which you are satisfied that persons in the Guardian Office in Toronto were parties to the offence charged by aiding it, directing it, or counselling it, you must decide whether, in relation to the criminal act, the persons in the Guardian Office were the directing mind of the Church of Scientology of Toronto within a field of operation assigned to them.
Now, I referred you to Exhibit 5, the policy letter setting up
the office of the Guardian (it is dated March the 1st, 1966), and I
-128- suggested to you, though I emphasized that this is a matter for your decision as the triers of fact, that you could reasonably conclude, on the evidence, that the gathering of intelligence for the protection of Scientology was a field of operation that had been assigned by L. Ron Hubbard to the Guardian, and that the persons in the Guardian Office in Toronto who were directing or engaged in the plant activities were engaged in that field of operation, and I suggested to you that the real issue in this case, with respect to the corporate accused, is whether the information-gathering activities of the Guardian Office in Toronto were a field of operation of Church of Scientology of Toronto, assigned to the Guardian Of Office in Toronto by the Church of Scientology of Toronto.
The theory of the defence of the Church of Scientology of Toronto is that the information-gathering activities of the Guardian Office in Toronto were not a field of operation of Church of Scientology of Toronto, and were not assigned to the Guardian Office in Toronto by Church of Scientology of Toronto.
Instead, the defence submits, the field of operation is that of the Guardian Office, which was an autonomous body, separate and apart from the organization that controlled the delivery of the services of Scientology to adherents throughout the world. And I read you from the policy letter Exhibit 6.
Then I went on to refer to the evidence which I thought you might consider significant in deciding whether the persons in the Guardian Office in Toronto were separate and apart from Church of Scientology of Toronto so that their information-gathering activities could not be regarded as a field of operation of Church of Scientology of Toronto.
In light of these clear and repeated instructions, it is obvious
that the jury was satisfied that information-gathering was a field
of operation of the Church of Scientology of
-129- Toronto and that persons in the Guardian's Office performing those operations were not part of an autonomous body, separate and apart from the delivery of Scientology services.
In the command structure of the Church of Scientology generally and the Church of Scientology of Toronto in particular, de facto control was divided between the Executive Director and the Assistant Guardian Toronto. The Board of Directors was, on the evidence, irrelevant.
Accordingly, once the jury found that the Guardian's Office Toronto was not an autonomous body, they were bound to find the appellant liable for the unlawful acts committed by the persons in that office, inasmuch as de facto control resided there.
In Canadian Dredge & Dock, Estey J. said at p. 701 that the
identification theory was "inspired in the common law in order to
find some pragmatic, acceptable middle ground which would see a
corporation under the umbrella of the criminal law of the community
but which would not saddle the corporation with the criminal wrongs
of all of its employees and agents." This pragmatic approach dictates
that the corporation be liable for the acts of persons in de facto
control of the corporation, be it the board of directors or, as in
this case, the persons in control of the board of directors. The
dicta from The Rhone was, in my view, not intended to apply to a
case where there is no issue of delegation. Counsel for the appellant
concedes as much. Mr. Ruby agrees that the identification doctrine
-130- apply here if the board of directors had authorized the illegal acts.
Similarly, where the most senior officials in the corporation having de facto control of the corporation have committed the criminal acts or authorized them, no issue of delegation of executive authority arises. To hold otherwise would mean that this corporation had no directing mind. This is simply not a sensible or pragmatic position.
Moreover, in my view, even if the principles in The Rhone applied to this case, they must be adapted to the facts as they existed here.
It may be that the Assistant Guardian Toronto and the other senior officials in the Guardian's Office Toronto had limited discretion to set police on matters of information-gathering. However, whatever executive authority did exist within the Church with respect to those matters resided with the senior officials in the Guardian's Office.
The Assistant Guardian, for example, was accountable to no one within the Church. He was free from control and instruction by the board of directors and the Executive Director. For these reasons, I would not give effect to this ground of appeal.
B. Trial Judge's Direction on Corporate Criminal Liability
The trial judge properly instructed the jury with respect to the
two central corporate criminal liability issues in the case: field
of operation and the alleged autonomous nature of the Guardian's
Office. The appellant argues that the trial judge did not adequately
-131- direct the jury with respect to the limits of corporate criminal liability. In Canadian Dredge & Dock, Estey J. defined those limits in the following terms at pp. 713-14:
[I]n my view the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation; and (c) was by design or result partly for the benefit of the company.
The trial judge expressed the opinion that the jury would have little difficulty in finding that the Crown had proven that the acts were not totally in fraud of the Church and that they were intended to benefit the corporation. The trial judge did, however, leave those issues for the jury to determine.
Although the trial judge's directions were brief and accompanied by a relatively strong expression of opinion, they were adequate.
Once the jury found that information-gathering was a field of
operation assigned to the Guardian's Office and that the Guardian's
Office was not separate and apart from the corporation, it was
unlikely that they would nevertheless find that the senior Guardian's
Office personnel were acting _totally_ in fraud of the Church and
did not _intend_ to benefit the Church. The illegal plant activity
was designed to protect the Church from its perceived enemies. As
the trial judge pointed out, the persons in the Guardian's Office
who authorized or carried out the illegal acts received no direct
-132- The appellant also argues that the trial judge erred in his charge by placing before the jury the "new" theory of liability of wilful blindness. The question of wilful blindness arose in response to submissions made by Mr. Ruby in his closing address to the jury. He told the jury that there was "not the slightest bit of evidence" to suggest that the board of directors ever authorized a criminal act.
He also submitted that there was no evidence that the board had expressly or by implication assigned any field of operation to the Guardian s Office and that the Church could only act through its directors.
In his charge to the jury, the trial judge gave the following instruction, which the appellant alleges constituted a new theory of liability:
A further necessary inference, in my opinion - and this is a matter for your judgment - is that these members of the Board of Directors of Church of Scientology of Toronto either knew of the illegal plant activity, or were willfully blind about what was being done behind the locked doors of the Guardian Office. The persons controlling a corporation cannot avoid corporate criminal responsibility by installing a board of directors who close their eyes to the conduct of the persons in control.
The reference to wilful blindness was repeated once more in relation to the control that the members or parishioners may have exercised:
Thus, the Church that was captured was either a corporation
of which the parishioners were not even members, or it was a
corporation whose members had chosen a board of directors that
was, at best, wilfully blind about the plant activity that was
-133- accompanied by so much obvious secrecy. The directors of a corporation cannot avoid responsibility for themselves or the corporation by closing their eyes to suspicious circumstances that cry out for investigation.
I agree with the respondent that the trial judge might have avoided the use of the phrase "wilfully blind" only because it has come to have a special meaning in criminal law. See R. v Sansregret,  1 S.C.R. 570. However, the appellant was not prejudiced by the reference to wilful blindness. Contrary to the appellant's submissions, the trial judge was not invoking a new theory of liability based on wilful blindness of the board of directors. Rather, he was pointing out that the persons who were in control of the corporation had set up a board of directors that had no real executive authority. He quite properly pointed out that, on the facts of this case, it was no _defence_ that the figurehead board of directors may not have known about the illegal acts of the persons with de facto executive authority.
When the charge to the jury is read as a whole, I am satisfied that there is no danger that the appellant was convicted on the basis of anything done or not done by the board of directors. For example, in relation to the count involving the Ministry of the Attorney General, the trial judge directed the jury as follows:
There is no evidence that the Church of Scientology
authorized the Guardian Office in Toronto, either expressly or
by implication, to participate in the unlawful plant operation
- _that is, there is no evidence that the Board of Directors
of the Church of Scientology
gave such authority, expressly or by implication. So that your concern in this case with the basis for corporate criminal liability depends upon the question of whether the persons - and in this case, the persons in the Guardian Office in Toronto who participated in the plant operation - were the directing mind of the Church of Scientology of Toronto_, within a field of operation assigned to them so that their actions and intent were the very actions and intent of the corporation itself. A corporation will only be found liable on this basis if the action taken by the directing mind was not totally in fraud of the corporation, and was, by design or result, partly for the benefit of the corporation. [Emphasis added.] This direction fairly put the issues to the jury; similar directions were repeated frequently throughout the charge. The jury could not have been confused about the findings they had to make or the basis for the appellant's liability. This ground of appeal fails.
The trial judge imposed a fine totalling $250,000 upon the Church
of Scientology of Toronto. He imposed a fine of $100,000 in respect
of the count involving the O.P.P. and a fine of $150,000 in respect
of the count involving the Ministry of the Attorney General. We
called on the Crown to respond to the sentence appeal.
-135- In my view, the fine represented a fit sentence. The trial judge carefully reviewed the facts and aspects of the case that the parties put forward as aggravating and mitigating factors. I intend to deal briefly who the submissions made by Ms. Edwardh in support of the corporate appellant's claim that the sentence was unfit and that the trial judge committed a number of errors in principle. Ms. Edwardh made four principal submissions:
(i) The trial judge misconceived the gravity of the offenses and therefore overemphasized the seriousness of the offences.
(ii) The trial judge erred in principle in rejecting the appellant's claim that it had shown great remorse.
(iii) The trial judge failed to treat the appellant as a discrete entity independent of the Church of Scientology International.
(iv) The trial judge placed undue emphasis on the factor of general deterrence given the unusual nature of the offence.
B. The Seriousness of the Offence
The fundamental submission with respect to the seriousness of the
offense is that there was no significant interference with law
enforcement or the administration of justice. As it fumed out, the
persons planted in the O.P.P. and the Ministry of the Attorney
General were unable to obtain anything of real value to the Church
or anything that impaired the
-136- functioning of these agencies. The trial judge recognized this aspect of the case. He pointed out that the count in relation to the O.P.P.
was based on the conduct of Cynthia Bake and that she was only able to obtain a document that turned out to contain "innocuous"
information. The conviction concerning the Ministry of the Attorney General concerned the conduct of Janice Wheeler on three occasions.
On the first occasion, she let Marion Evoy into the Ministry archives to obtain copies of correspondence between the Attorney General of Ontario and the Attorney General of the United States. On the second occasion, Ms. Wheeler turned over a Ministry file respecting the application of the appellant for authority to solemnize marriages.
On the third occasion, Ms. Wheeler took Ms. Evoy into the Ministry offices. They were looking for files on the Church of Scientology but were unable to find any.
The trial judge characterized these acts as follows:
The criminal acts of Church of Scientology of Toronto were insidious attacks on two essential law enforcement agencies in this province. The integrity and effective functioning of those agencies (the Ministry of the Attorney General and the Ontario Provincial Police) are of great importance to good government in this province. The offences _threatened_ such integrity and effectiveness, and I regard each of them as very serious.
-137- I agree with this characterization of the offences. The trial judge did not misapprehend their nature. He quite properly focused on the intended consequences of the offenses. This conduct represented a deliberate attempt to undermine the effectiveness of the law enforcement agencies. The acts struck at the integrity of the public service. This was not simply an intelligence-gathering exercise. The appellant had planted its agents in these agencies so that they would be able to anticipate and counter the efforts of these agencies to enforce the law.
It was also important that these offenses were not isolated instances of errors of judgment. They represented the execution of a carefully conceived plan. The agents were given special instructions to assist them in carrying out the offenses. An independent part of the appellant's infrastructure was devoted to this kind of activity. The planting of agents in these law enforcement agencies was merely part of a systematic pattern of conduct on the pan of the appellant. These agents were not acting for personal gain but under the belief instilled by the appellant that these acts were necessary to protect their Church.
The trial judge unequivocally rejected the appellant's submission
that remorse was a mitigating factor. He expressed his reasons for
doing so as follows:
-138- Next I deal with the question of remorse. I am unimpressed by the defence submission that the church has shown remorse by removing from office any individuals involved in the offences, by offering to assist the authorities in the prosecution of the wrongdoers, and by requiring the wrongdoers to perform acts of public service in an amends programme. Remorse requires an acceptance of guilt.
The conduct of Church of Scientology International and Church of Scientology of Toronto, after the Church of Scientology International became aware, in July 1981, of the criminal conduct of the Guardian Office World Wide prior to 1978, and of those in local churches like Church of Scientology of Toronto who had acted on the direction of Guardian Officer World Wide, was not to accept corporate responsibility; instead, the corporation sought to have individual wrongdoers take the blame, and to distance the corporations from them. The most telling evidence against the church, on the question of remorse, is the fact that no steps were taken to reveal the criminal conduct to the authorities until after the seizure of documents in March 1983. By that time, the detection of the criminal acts was virtually certain. And then the offer to the authorities in 1984 was to assist in the prosecution of the individuals, not to accept responsibility on the part of the church for criminal acts done by senior employees almost a decade previously.
The trial judge also rejected the submission that although the appellant had defended the case on the basis of legal defences, it had always accepted moral responsibility for the acts. He pointed out that any acceptance of moral responsibility was made on behalf of the individuals and that the appellant's position was always that it was not at fault. In this respect he noted the contents of a press release issued by the appellant following the jury verdict. The press release included the following:
Parishioners and church staff who are innocent of any crime
have been punished today for acts they knew nothing about almost
-139- twenty years after the fact. Our justice has protected unrepentant criminals who ordered or committed these acts, given them immunity, and used their testimony to assault the innocent. The result is a travesty of justice and a useless waste of more than $15 million in taxpayers' money.
I agree with the trial judge that remorse was not a mitigating factor. The appellant at no time admitted responsibility for these offences or expressed remorse for its involvement As Ms. Pomerance pointed out in her submissions, the evidence was clear that the appellant stopped this kind of activity because the risk of discovery was putting the appellant and the Church of Scientology in jeopardy.
In the years leading up to the commission of these offences, the Church had tried various illegal means in a misguided effort to protect itself from those agencies, organizations and individuals that it perceived to be its enemies. When the risk of detection became too great, a particular technique would be abandoned in favour of some better or different method. The various actions such as the "amends programme", which forced the individuals to accept personal responsibility, were mechanisms by which the appellant distanced itself from the acts committed on its behalf.
On the other hand, while I do not view remorse as a proper
mitigating factor here, there were some factors in the appellant's
favour. Substantial efforts were made to remove the people involved
in the illegal acts from positions of power and responsibility within
the organization. Important changes were made to the structure of the
-140- ensure that this kind of conduct would not be repeated. The senior officials who took over responsibility for the Church, repudiated the illegal acts and made it clear that such conduct was inconsistent with the teachings of the Church of Scientology. It is also the case that the offences relate to acts committed some 20 years ago and many of the current parishioners would have had no knowledge of those activities. In his reasons, the trial judge made reference to many of these factors and I cannot say that he did not give them the proper weight.
D. Treating the Appellant as a Discrete Entity The appellant argues that, in effect, it is insolvent and that accordingly only a nominal fine should be imposed. It led evidence that its liabilities exceeded its assets by approximately $12 million and that it had already expended over $7 million in legal fees to defend these charges. There was evidence, however, that the Church of Scientology International had provided financial help to the appellant to assist in the payment of legal fees and other creditors.
The trial judge also noted the important role played by the Church of Scientology International in directing some of the operations of the appellant. In that context, he said as follows:
Because of the role of the mother church (described as
the Church of Scientology International) in controlling the
local Church of Scientology of Toronto and in providing financial
assistance, the corporate accused, in my judgment, is in a
position analogous to
-141- that of a wholly-owned subsidiary of a large corporation. The Court must look to the size of the parent in determining the amount of the fine to be imposed.
In the unusual circumstances of this case I cannot say that the trial judge erred in taking this approach. There was evidence that a portion of the funds used by the appellant from its parishioners and from its various activities were sent to the "mother church". While the offences were intended to benefit the appellant, they were also intended to benefit the movement as a whole. In fixing the amount of the fine, it was open to the trial judge to look to the assets of the Church of Scientology International. The trial judge also noted that there was no need for a large fine as a matter of specific deterrence and that the fine must not be "crushing or vindictive". It is apparent that he did not give undue weight to the nature of the relationship between the appellant and the International Church.
E. General Deterrence Ms. Edwardh submits that the trial judge placed undue emphasis on general deterrence. She argues that the offences were highly unusual and thus the prevalence of the crime did not dictate a heavy deterrent penalty. She also argues that it was wrong in principle to use a religious organization as a means of deterring the public generally.
The point here seems to be that it was not appropriate to impose a
fine on an association that
-142- exists only to exercise protected Charter rights and where the fine will be paid by innocent parishioners.
In his reasons, the trial judge made it clear that be considered general deterrence to be the principal objective in determining the amount of the fine. In my view, be did not err in principle in doing so. The appellant was established as a corporation for reasons that seemed appropriate at the time. One purpose was to take advantage of the limited liability of the corporation. However, this also meant that the appellant was subject to criminal prosecution for the acts of its directing minds. I can see no principled basis for holding that general deterrence should not be a factor in fixing the sentence to be imposed. In this respect, it is proper to take into account that the appellant itself devoted considerable resources to these non-religious objects.
General deterrence did have an important role to play in fixing
the size of the fine. The importance of general deterrence to a
large extent follows from the seriousness of the offence to which
I have already adverted. A significant fine was appropriate to
encourage compliance by other entities who might otherwise adopt
a similar strategy and attempt to subvert the public service and
interfere with the administration of justice.
-143- XIII. DISPOSITION Accordingly, I would dismiss the appeals by both appellants from conviction. I would grant leave to appeal sentence by the Church of Scientology of Toronto, but dismiss the appeal.
[signatures] C13047 C13207 COURT OF APPEAL FOR ONTARIO ROBINS, LASKIN and ROSENBERG JJ.A.
HER MAJESTY THE QUEEN
CHURCH OF SCIENTOLOGY OF TORONTO
and JACQUELINE MATZ
RELEASED: April 18, 1997
From: ptsc <firstname.lastname@example.org>
Subject: Scientology Pays Biggest Libel Verdict in Canadian History
Date: Sat, 28 Oct 2000 20:38:17 -0400
Organization: ARS: Perhaps The Most Malignant Newsgroup on Usenet
http://www.skeptictank.org/gs/sci310.htm Canada court upholds libel suit against ScientologyNorth American News Report July 20, 1995 17:53 E.T.
OTTAWA (Reuter) - Canada's Supreme Court Thursday upheld a million-dollar libel award against the Church of Scientology in a case that saw writers and news organizations siding with thechurch.
Casey Hill, a former Ontario prosecutor, sued the Church of Scientology for accusing him of acting improperly in connection with a raid on church offices in Toronto in 1983.
Journalists, writers and newspaper groups pressing for free speech had backed the church in arguing for laxer rules on defamation, but the court upheld the $1.6 million Canadian ($1.2 million U.S.)
award in favor of Hill. It is believed to be the largest libel award ever made in Canada.
"Reputation is an integral and fundamentally important aspect of every individual; it exists for everyone quite apart from employment," the majority ruled.
"The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employmentstatus."
Lawyers said at the time of the original award in 1991 that it was the biggest ever assessed by a Canadian jury. A legal source said he believed that was still the case.
From: ptsc <email@example.com>
Subject: Scientology Crime Cultist Loses Second-Biggest Libel in Canada, too!
Date: Sat, 28 Oct 2000 20:40:25 -0400
Organization: ARS: Perhaps The Most Malignant Newsgroup on Usenet
http://home.snafu.de/tilman/prolinks/chelekis_libel.txt (BW)(MARKET-NEWS-PUBLISHING) RE: Apology to David Baines and Southam from Market News Publishing Business Editors VANCOUVER, BRITISH COLUMBIA--(BUSINESS WIRE)--Sept. 12, 1997--Market News Publishing On September 29, 1994, Market News Publishing Inc. disseminated an article that made allegations that Vancouver Sun business writer David Baines was trading against his column. This article was written by George Chelekis, a stock tipster from Clearwater, Florida.
The allegations against Mr. Baines were completely false.
We sincerely apologize to Mr. Baines and The Vancouver Sun for disseminating this material and for any inconvenience or embarrassment this may have caused.
--30--bk/ny* CONTACT: Market News Publishing Inc.
Robert Shore, 604/689-1101
====== Vancouver Stock Exchange - Southam traps Shore with his own libel Vancouver Stock Exchange VSE Shares issued 0 1899-12-30 close $0 Friday Sep 12 1997 See Southam Inc (STM) Street Wire INSURANCE LAWYER AMBUSHED BY HIS OWN CLIENT by Stockwatch Business Reporter The libel, slander and bad feelings trial between Southam Inc and David Baines as plaintiffs and Robert Shore, David Robinson and George Chelekis as defendants continued in BC Supreme Court on Thursday, September 11, 1997.
Resuming his testimony before Mr Justice John Rowan was Robert Shore, the owner, publisher and admitted libeler at Market News Publishing Inc. Mr Shore and Market News are accused of distributing two of Mr Chelekis's articles and a press release that impugned the integrity and honesty of Vancouver Sun business reporter David Baines and Howe Street investigator Adrian du Plessis.
Neither Mr Chelekis nor David Robinson, publisher of the Florida-based tout sheet Bull & Bear, are represented in court, though both attempted unsuccessfully to derail their trial. Mr du Plessis is pursuing a separate legal action over the libelous allegations that he conspired with Mr Baines and unnamed short sellers to profit from driving down the price of a number of VSE companies over a six-year period. In addition, Mr Chelekis told about 150 people at a May 1996 investment conference in Vancouver that Mr Baines was HIV positive and had not told his wife.
Under cross-examination by Southam counsel Barry Gibson, Mr Shore said the first time he met Mr Chelekis was when Howe Street habitue, David Elrix, brought to him the August 1994 edition of the Bull & Bear, which contained allegations of impropriety on the part of Messrs Baines and du Plessis. Mr Elrix thought Mr Shore ought to meet Mr Chelekis, and helped set up a meeting with its author. Mr Shore then met Mr Chelekis -- for the first time ever, he told the court -- at the Four Seasons hotel in late July or early August 1994.
Asked why Mr Chelekis was in town, Mr Shore said he believed the Florida-based writer was attending one of the many roadshows organized by newsletter writers and similar species to promote their products and generate subscribers.
"Did he indicate that he was a journalist for hire?" Mr Gibson asked, meaning that he was paid specifically to write the kind of articles that promoters of penny-stock companies wanted to read. "At that point, no," Mr Shore replied. "I believe this was a loss leader for him, to get subscribers for his newsletter."
Mr Shore said he could not recall when he figured out Mr Chelekis accepted money or stock for his articles. Asked if he knew by late August or early September 1994 that Mr Chelekis accepted shares in the various companies for which he wrote nice things, Mr Shore said: "I'm not sure."
Mr Gibson also wanted to know whether Mr Shore inquired as to who was paying for Mr Chelekis's trips to Vancouver, which consisted of himself, the "research assistant" Lisa Petrella and high-class accommodation. Mr Shore replied he did ask, but that Mr Chelekis said that no one but himself was picking up the tab.
Mr Shore said he subsequently met with Mr Chelekis one or two more times.
Mr Gibson spent considerable time enquiring whether or not Mr Shore made efforts to verify the veracity of the material he accepted for publication and possible publication. (Mr Shore acknowledges disseminating the August Bull & Bear story and a press release tipping the October 1994 Bull & Bear story. However, he claims the second story was sent out inadvertently and without his authorization.)
Mr Shore replied that he asked Mr Chelekis for the names of the sources for specific allegations contained in the August story and was assured credible people gave him the information; both that and the subsequent October Bull & Bear stories offered no attributions. Mr Gibson pressed Mr Shore, demanding to know the names of one -- even one -- individual, gleaned from his several meetings with the writer, that formed the basis of the allegedly defamatory material in the first article. Mr Shore said names were mentioned, but his memory had gone blank: "I don't remember any of the names."
"Did you take notes?" Mr Gibson asked. "No," replied the electronic journalist.
Mr Gibson pressed further: "I just want you to name for the court one name as a source for the first article." Replied Mr Shore: "I can't say he'd named any specific people . . .
only that he'd spoken with a number of people."
Mr Gibson then wanted to know about the $2 fee he charged Mr Chelekis for publishing the articles. "I was under the mistaken impression that he'd been very careful about the material and that I could rely on him for the veracity of the material," Mr Shore testified. From that, Mr Gibson posited that Mr Shore knew the material was "pretty dangerous stuff" and that he needed to take measures to protect himself from libel, which he thought he did by charging Mr Chelekis $2 for publishing the material and by printing three disclaimers on the articles absolving himself from responsibility for their content.
"You wanted to transfer all responsibility to Mr Chelekis?"
Mr Gibson asked. "No, I wouldn't say that," Mr Shore replied.
Mr Gibson read aloud the laborious disclaimers that were transmitted with the electronic version of the October story sent out over the Star Data and Bloomberg news-wire services: "Distribution of this article has been paid for by the author, and as such the text is carried in full and unedited. Distribution of this material has been paid for by the author, who takes full responsibility for its contents. Opinions expressed here are solely those of the author and do not necessarily reflect the opinions of the publisher or distributor."
Mr Shore said he had never before charged to distribute a bylined article, nor had he ever before placed such a disclaimer on a story.
"Didn't you ask the names of sources for specific allegations" in the second story? Mr Gibson asked.
Mr Shore replied, "I was told there were sources for the allegations."
"I just want to know any of the sources for the second article," Mr Gibson demanded. "Which did you check on?"
Mr Shore replied, "Some of the people that Adrian du Plessis traded with on the floor . . . and I don't remember their names."
"Did you ask for the sources for allegations that Baines was trading on his column?" Mr Gibson asked.
"Yes, I asked," Mr Shore told the court. "I relied on the assurance he had a source."
"Didn't you make any independent effort to verify"
allegations Mr Baines traded against his column and kept his short-selling riches in Panamanian banks, Mr Gibson asked.
"I didn't know how," Mr Shore replied.
Mr Gibson then levelled a hitherto unmentioned charge that Mr Chelekis was planning a third article - this time bringing into the alleged short-selling conspiracy Stockwatch owner and publisher John Woods. This was presaged in an Internet posting which referred to Mr Woods and Mr Baines as two of Vancouver's "terrible trio" of stocks reporters (Mr du Plessis was the third).
"Did you encourage him to add Woods into it?" Mr Gibson said. Mr Shore replied only that Mr Woods may have been a subject for discussion. "That's possible," he said. "I don't recall."
Mr Gibson then wondered aloud whether Mr Shore understood that an article of this kind could spell the end of Mr Baines's career. "Mr Chelekis assured me he had sources"
for all of his allegations, Mr Shore countered.
The Southam counsel then returned to his line of questioning about the third story that may have been planned but not written. "The first two take out David Baines and Adrian du Plessis and the third would take out John Woods," Mr Gibson said. Mr Shore denied the statement.
Mr Gibson then pressed Mr Shore on his motives for taking such a risk in publishing the Chelekis material. "What I want to know is, what was in it for Robert Shore?" Mr Gibson asked. "We were attempting to get more information, to expand the company, to get more news (from the US)," Mr Shore said. In addition, if Mr Chelekis was right, he added, that meant Mr Chelekis had "something significant to offer the industry."
"But what about Bob Shore?" Mr Gibson demanded.
"I'm not really sure there was anything in it for me, except to gain more information and to make contact with companies in the US," he said.
Mr Shore also confirmed he had later travelled to a gold show in Florida and had stayed overnight as a guest in Mr Chelekis's home, adding that he subsequently met with the tipster-cum-promoter "a couple of times" when he visited Vancouver, and talked many times over the phone.
Mr Shore was sued by Mr Baines and Southam in May 1995. Mr Gibson then asked whether Mr Shore took any steps at that time to "find out facts" from Mr Chelekis about the story and who provided information on the specific allegations.
Mr Shore replied that he did, and that Mr Chelekis assured him the sources were solid and that he should not worry.
"Did you worry?" Mr Gibson asked. "Oh, I worried," Mr Shore replied.
Mr Shore said he tried to ensure that Mr Chelekis would appear in court to defend himself and provide information about his sources, adding he last spoke to Mr Chelekis "eight to 10 weeks ago, possibly longer." (In fact, Mr Chelekis didn't appear, claiming through a lawyer he hired by cell phone on September 5 that he didn't know about the court date. Lawyer Andrew Davis requested a delay of proceedings on September 8, but Mr Justice Rowan denied the request, agreeing with Mr Gibson that he should have known about the date because it was set in late 1995.)
After the June discovery hearings, Mr Shore tried to contact Mr Chelekis but was told his numbers had been disconnected. That followed Mr Chelekis's plea of no contest on February 25, 1997 to charges by the SEC that he was touting shares in an illegal fashion and was fined US$162,000. After that, his presence on the Internet ended.
Mr Shore, the self-proclaimed computing expert, had spent much effort the day previous and again today patiently trying to help the gathering of computing neophytes understand the computing intricacies of the Bloomberg news system. According to Mr Shore, Bloomberg's mainframe news computers work like a great big wheel. The news enters the big wheel (really a buffer), and then when the wheel is full, all news that is not filed with a recognized stock exchange ticker symbol is dropped. It is simply a matter of how long it takes for news stories to fill the big wheel.
Two days, maybe four, definitely not five, was Mr Shore's evidence. Then, poof goes the story into the ether, providing it was filed without a recognized symbol. Since the libel, which Mr Shore variously said he did distribute, did not distribute or was not sure (depending on when he was asked) had no recognized symbol attached, it would have disappeared into the ether in 2-4 days. In other words, none of it could possibly have been available on Bloomberg for more than four days, even if it was distributed in August and September and October of 1994.
Mr Gibson then yanked the carpet out from under his quarry, the way courtroom lawyers do it in the movies. "Well then Mr Shore, what is this?," he asked, placing in front of the witness a copy of the offending libel. Up jumped the defendant's lawyer, Bryan Baynham, who headed for the witness box. After a long, pained look, the ambushed Mr Shore answered the question with, "How'd you get this?"
Plaintiff Baines had pulled the libel off his Bloomberg terminal minutes before heading to the courthouse that morning. Mr Gibson handed copies of them to Mr Shore and asked for an explanation. "I gave instructions to have it deleted," he said, apparently not remembering much of his previous evidence.
In addition, Mr Gibson produced a fax of the story that indicated it was faxed from Market News's office on October 24, 1994 - nearly three weeks after he received notice from the Vancouver Sun that its parent company intended to sue over the October Bull & Bear story. Mr Shore said the makeup of the fax indicated it was an "internal document"
not meant for distribution. As for who sent it out, "I would assume it was an employee who is no longer with us,"
Asked if he was considering an apology for his 1994 libeling of Adrian du Plessis, Mr Shore replied: "I haven't had an opportunity to discuss that with my attorney."
Mr Gibson again questioned the sincerity of Market News's apology to Mr Baines which was sent out two working days before the trial. Mr Gibson also pointed out that it didn't come from Mr Shore personally, but from Market News.
"Anyone seeing this wouldn't know you're the one issuing the apology," Mr Gibson stated.
In addition, Mr Gibson produced evidence the apology was distributed shortly before 10 pm. "How many brokers are in their offices at that time?" he inquired. Mr Shore testified his office had been the victim of a power breakdown around 5 pm that night, just before it was due to go out. Besides, said Mr Shore, it makes little difference when transmissions are made; brokers could access the material when they arrived at work. "That was not at all the intention," he said of the after-dark distribution. "We had a major scramble and we put it out when the power came back on."
In summary arguments, Mr Gibson turned the Chelekis conspiracy theory on its head. Instead of Messrs Baines and du Plessis - and possibly Mr Woods - being in on a scheme to drive down the value of stocks, the conspiracy lay with Mr Chelekis, Mr Robinson's Bull & Bear, Mr Shore's Market News, and unnamed figures on Howe Street backing the deal in a bid to bring down their enemies in the press. "There is simply no other explanation for his conduct," he said.
Mr Gibson painted a picture of a writer with no visible means of support, coming to Vancouver with an assistant, and staying in one of the city's finest hotels, and having enough money to hire private investigators to snoop on Mr Baines. "In spite of his efforts, he found absolutely nothing," Mr Gibson adds. "He certainly found a host of VSE promoters who did not like David Baines or Adrian du Plessis. But he found no evidence whatsoever of wrongdoing."
Nor could Mr Chelekis find evidence Mr Baines lived extravagently. At the time, Mr Baines drove a 1980 Volkswagen, living with his wife and three children in a middle-class Richmond neighbourhood.
As a result, Mr Chelekis decided to make it all up, the counsel stated. In the August Bull & Bear story, he tried to dislodge Messrs Baines and du Plessis without resorting to clear libel, with statements such as "together, Baines and du Plessis connived to create a pipeline of disinformation."
When that didn't have the desired effect, Mr Gibson adds, he went quite a bit further, making "sensational allegations" in the October Bull & Bear story, alleging the conspiracy to short sell and trade on his column, and that the two had fat overseas bank accounts. Mr Chelekis also wrote Mr Baines "casually altered facts or manufactured outright lies" to drag down share values.
But Mr Chelekis needed a better vehicle for his lies than the Bull & Bear, Mr Gibson continued. "George Chelekis found the perfect ally in Robert Shore." Mr Shore could feed material to electronic news services worldwide, and he himself was looking to boost his own reputation and credibility both on Howe Street and around the world. "Best of all, Robert Shore has his own reasons to dislike David Baines and Adrian du Plessis - they are close associates of John Woods, his competitor and adversary."
Mr Gibson said the fallout for Mr Baines has been significant and lasting. "While David Baines had enemies, he nevertheless enjoyed a good reputation," he told the court. "He had won numerous awards for his coverage of the VSE. Most important, even his enemies didn't question his honesty."
Mr Gibson continued: "George Chelekis's attack on David Baines could have ended his career. The one thing that saved him was the support of Southam Inc." But despite that support, Mr Baines became the subject of a vicious and obscene fax campaign. Furthermore, other news outlets picked up the affair for their publications, repeating the allegations in publications such as Vancouver Magazine and the Globe and Mail.
"In fact, it's still going on, on the Internet," Mr Gibson added.
Mr Gibson stated the awards for damages should rival that of a recent case involving the Church of Scientology, which tallied $1.6 million in punative, general and compensatory damages.
The trial continues.
(c) Copyright 1997 Canjex Publishing Ltd.
Subject: Scientologist stock tout George Chelekis and cohorts hammered in
Supreme Court of British Columbia From: "Adrian du Plessis" <firstname.lastname@example.org>
Date: 16 Apr 98 15:34:02 GMT
-------- Thursday 16 April 1998 The Vancouver Sun ------------------------------------------------------------------------ Sun business writer wins $875,000 by Petti Fong Vancouver Sun Vancouver Sun business writer David Baines was awarded the second-largest libel suit judgment in Canadian history on Wednesday.
Baines was awarded $875,000 plus an additional $75,000 in special costs after B.C. Supreme Court Justice John Rowan found a Florida journalist had carried on a "campaign of vilification with the intention that Baines be left with no credibility. His intent was to destroy Baines' career."
There were three defendants in the case: David J. Robinson, the Florida publisher of the Bull & Bear, Market News Publishing Inc., a Vancouver-based electronic publisher of business news, and Florida journalist George Chelekis.
Justice Rowan found Chelekis liable for most of the damages.
Baines, who is on vacation, was unavailable for comment.
The suit against Chelekis and the publishers was filed by lawyers for Southam Inc., which owns The Sun, after a series of articles written by Chelekis was reprinted in the two newsletters and over the Internet.
Chelekis accused Baines of threatening his life and that of his secretary, and of working with former Vancouver Stock Exchange trader and private investigator Adrian du Plessis to manufacture negative news about selected companies to drive down the prices of their shares.
"In the course of his campaign, Chelekis manufactured three separate and deliberate lies, the first, that David Baines threatened his life; the second, that Baines was trading against his column, and third, that Baines was involved in a homosexual relationship with Adrian du Plessis," Rowan wrote in his judgment.
Rowan termed Chelekis' conduct as arrogant, vindictive and continuous during the two-year campaign against Baines.
Sun editor-in-chief John Cruickshank said the suit against Chelekis and the two publishers was not the newspaper's preferred course.
"We did it after it was clear Chelekis was attempting to destroy the credibility and career of David Baines and damage the credibility of The Sun's business section and doing it with a calculated smear campaign fabricated entirely of lies, many of them despicable."
Baines' work has always been in the public interest, Cruickshank said.
"His powerful investigative stories about the VSE have always been important for investors and important for the health and welfare of the exchange itself."
The largest libel award in Canadian history was against the Church of Scientology, which was held liable for $1.6 million over statements made about an Ontario lawyer.
Du Plessis, who has also launched a suit against Chelekis and the two publishers, said the judgement is gratifying.
"I can only hope when my lawsuit goes through the system, there will be similar results," he said.
Copyright 1998 The Vancouver Sun
====== Subject: Liar and tout George Chelekis nailed along with cohorts in B.C.
Supreme Court From: "Adrian du Plessis" <email@example.com>
Penny stock shill and con-artist George Chelekis, who went underground when the SEC nailed him for making false statements about companies he'd been paid to tout, has now been nailed in the Supreme Court of British Columbia over his lies. In February 1997 Chelekis agreed to pay more than US $162,000 to the SEC after US regulators charged he'd been paid by more than 150 public companies to tout their shares. Chelekis is a liar who lacked any credible background in the junior stock world - he used what knowledge others had to try and appear as an expert when, in truth, he was a shill.
He was paid by companies to promote their inflated shares and he was also
engaged in a vicious smear campaign to discredit those who exposed his
crooked supporters. Today the Supreme Court of British Columbia has awarded
a journalist and his employer (David Baines of the Vancouver Sun) $875,000
- the second largest libel award in Canadian history - over the outrageous
lies that Chelekis told. The libel judgement is against Chelekis
($425,000), a Florida tout sheet, The Bull & Bear ($200,000), that
published his lies in print form, and Bob Shore/Market News Publishing
($250,000), a Vancouver-based news service that republished the lies
electronically. Of course, with Chelekis having gone underground it may be
a challenge getting him to pay up for his dishonesty - but it should be of
benefit to all public investors to know that a liar and fraud like Chelekis
is out of action. (Another judgement against Chelekis, obtained by myself,
will also be pursued as will the other cohorts in the libel scheme.)
====== Subject: NOTICE FOR PUBLICATION - George Chelekis et al
From: "Adrian du Plessis" <firstname.lastname@example.org>
NOTICE FOR PUBLICATION
Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:
ADRIAN du PLESSIS
GEORGE CHELEKIS, THE BULL & BEAR FINANCIAL NEWSPAPER INC., DAVID J. ROBINSON, PETER HUNT, CANADIAN CORPORATE NEWS INC., MARKET NEWS PUBLISHING INC.
and ROBERT SHORE
DEFENDANTS TO: THE DEFENDANT, GEORGE CHELEKIS TAKE NOTICE THAT on September 25, 1997 an Order was made for substituted service upon you of a writ of summons issued from the Vancouver Registry, Supreme Court of British Columbia, in Action No. C965502 by way of this advertisement.
In the proceeding a claim is made against you by the Plaintiff Adrian du Plessis for damages for defamation arising out of the publication of two articles in The Bull & Bear, dated August, 1994 and October 1994.
You have 28 days to enter an appearance in the Vancouver Registry of the Supreme Court of British Columbia, failing which proceedings in default may be taken against you.
You may obtain a copy of the writ of summons and the order for substituted service from the Vancouver Registry at 800 Smithe Street, Vancouver, British Columbia, V6Z 2E1.
CAMPNEY & MURPHY
Barristers and Solicitors
P.O. Box 48800
2100 - 1111 West Georgia Street
Vancouver, B.C. V7X 1K9
Telephone: (604) 688-8022
====== Southam Inc - Robert Shore et al hit with $875,000 libel award Southam Inc STM Shares issued 77973923 1998-04-16 close $26.1 Thursday Apr 16 1998 LOCAL LIBELLER MUST PAY $250,000 Robert Shore and his Vancouver Market News Publishing have to come up with $250,000 to pay their share of damages won by Vancouver Sun business writer David Baines following last September's libel trial in BC Supreme Court.
Mr Justice John Rowan assessed $250,000 in general damages jointly and severally against tout-sheet journalist George Chelekis, Market News and Mr Shore. The total award to Mr Baines was $875,000 -- the second highest in Canadian legal history -- which included $50,000 for a slander by Mr Chelekis made against Mr Baines in 1995. Justice Rowan said co-complainant Southam Inc was not damaged by the defamations and dismissed its action, leaving Mr Baines the sole beneficiary.
Mr Shore was described by the judge as being one and the same as Market News. Either his or Market News' legal and libel costs may be partly covered through Wawanesa Insurance. Wawanesa reportedly offered Mr Baines and the Sun $50,000 ahead of the trial, but this was rejected as inadequate. What is not known is whether $50,000 is the extent of Mr Shore's libel coverage or whether Wawanesa's lawyer was simply making a low-ball offer. The awards stem from a series of libels -- two of which (one story and one press release) were distributed by Mr Shore's news service -- in 1994. In these, Mr Chelekis alleged Mr Baines traded against his column and that he and Howe Street investigator Adrian du Plessis conspired to drive down the price of stocks over a six-year period. They were in league with short sellers, Mr Chelekis said in a story that attributed none of the information to named sources, and they hoarded their ill-gotten gains in offshore banks.
Individually, Mr Chelekis was assessed $350,000, in addition to being named jointly and severally in the remaining $525,000 of the overall assessment.
The libels originally were carried in two articles written by Mr Chelekis in the August and October 1994 editions of stock tout-sheet Bull & Bear Financial Newspaper, published in Florida by David Robinson. Both the Bull & Bear and Mr Robinson were also held liable for the defamations, although neither were represented in court. A third libel was contained in a press release that also was distributed by Market News, but no complaint was made by Southam or Mr Baines for damages against Market News or Mr Shore relating to this press release. The court was especially concerned that various untrue statements about Mr Baines were forwarded by Market News for worldwide distribution through links with Star Data and Bloomberg. "By supplying its material to Bloomberg, Market News can, and sometimes does, achieve worldwide distribution of the material it publishes," Mr Justice Rowan notes.
The judge also noted that Mr Shore paid Mr Chelekis $2 to publish the libellous October article. "Why the payment was $2 is not apparent," Judge Rowan says. "Perhaps it was under a mistaken idea on Shore's part that this might absolve him from responsibility for what Chelekis wrote." Although Mr Chelekis was the most culpable for the defamations, the local man, Mr Shore, also was singled out for harsh comments from the judge in his reasons for judgement. Most notably, the court decided Mr Shore "intended" to libel Mr Baines, a nationally recognized business writer and bete noir of Howe Street frauds and scam artists.
The judge also says he viewed publication of the October 1994 article as the most egregious and damaging of the libels, and it was for writing and distributing this article that Mr Chelekis, Mr Shore, and Market News "shall be liable for the sum of $250,000 damages for the libels contained in the second article and publishing them." The court also assessed Mr Chelekis and Mr Robinson separately an additional $200,000 in damages for writing and publishing the second Bull & Bear article. That assessment was made in spite of the Bull & Bear's modest circulation of 26,500 -- of which only 217 were distributed in BC.
The judge assessed Mr Chelekis, who describes himself as an award-winning journalist, $100,000 for writing a libellous press release announcing the second story. Mr Chelekis was not represented in court because his lawyers had resigned shortly before the trial, stating they could not contact their client. Mr Robinson also was not represented in court.
The smallest defamation was made before a shocked audience at a mining conference in Vancouver in May 1995. In this slander, Mr Chelekis said Mr Baines was HIV positive and cruised gay bars with Mr du Plessis. "Many might realize the statement was a lie, but it was an outrageous lie, uttered with malice and meant to destroy Baines."
In addition, the colourful Mr Chelekis was hit for $100,000 in special damages and $100,000 in punitive damages.
In his remarks concerning punitive damages, the judge said that in the course of his defamatory "campaign", Mr Chelekis "manufactured three separate and deliberate lies." He states the first lie was that David Baines threatened his life; the second, that Mr Baines was trading against his column; and third, that Mr Baines was involved in a homosexual relationship with Adrian du Plessis. "It was Chelekis' intention to inflict on Baines the maximum damage he could," he states.
In assessing aggravated damages, Justice Rowan summarized Mr Chelekis' conduct as "arrogant, vindictive and continuous." The judge noted that in a December 19, 1994 letter to Sun business editor Gerald Prosalendis, Mr Chelekis stated:
"This program will continue until Mr Baines is left with zero credibility."
"His intention was to destroy Baines' career," continues the judge. "With that in mind, he arranged for the publication and republication of his articles with the intention they would reach a worldwide audience. He did reach the worldwide audience."
Mr Chelekis, the Bull & Bear, and its publisher David Robinson were jointly and severally assessed $75,000 for the August libel, and $200,000 for the September libel. Mr du Plessis, who is pursuing his own legal action against the same list of defendents for the identical defamation, says he is extremely encouraged by the high dollar award. "That cannot be read as anything but very good news for my legal position, and my lawyers are very confident and very encouraged by this decision," Mr du Plessis says.
"We'll be going at it like gangbusters. This now is part of our ammunition."
The freelance investigator notes that aside from the HIV charge levelled at Mr Baines, he was named in every one of Mr Baines' defamations. "It's a rare situation where counsel can not only point to a similar fact pattern, but in this case you can say we are dealing with identical libels. We're like the two halves of this case."
Mr du Plessis also argues that a court may be even more inclined to sympathize with his complaint because while Mr Baines' employer would have stood by him regardless of the defamations, as a freelancer he is in a particularly vulnerable position. "My whole job in securities investigation is my reputation," he says. "It could be argued that I'm entitled to a much larger award than Baines. But the other side could use that and argue that I'm entitled to much less because I'm not working for a major newspaper."
Alluding to a theory that Mr Chelekis' attacks were financed by well-known Vancouver moneymen, Mr du Plessis also says the decision "sends a message to the Howe Street cabals that these sorts of sleazy campaigns will not ultimately succeed."
On March 10, 1998, Mr du Plessis won a default judgement against Mr Chelekis; damages and costs are to be assessed, a court document states.
Defense lawyer Brayan Baynham, QC, who defended Mr Shore after the publisher sued Wawanesa, indicates an appeal may be in the works. While saying it is too early to say for sure, he says first, the judge did not take into account Mr Shore's heartfelt and sincere apology, and that the amount of the judgement against his client was extraordinary. Mr Baynham says the defense had accepted that there would be a judgement against his client "because he did publish it." What apparently surprised Mr Baynham was that there was no reduction in the award because Mr Shore apologized "immediately after he realized he published it . . . The fact that Shore apologized, I thought would have been reflected in a very sizeable reduction in the award against Shore vis-a-vis Chelekis."
The "heartfelt and sincere apology" from Mr Shore for "disseminating an article that made allegations that Vancouver Sun business writer David Baines was trading against his column" appeared the day the trial began -- September 8, 1997, three years after original publication. "The allegations against Mr Baines were completely false," the statement read. "We sincerely apologize to Mr Baines and the Vancouver Sun for disseminating this material and for any inconvenience or embarrassment this may have caused."
The trial proceeded.
The plaintiff's side scoffed at what amounted to a courthouse-steps apology. During the trial Mr Shore approached Mr Baines outside the courtroom with another late effort at a personal apology. Mr Baines pointedly rejected Mr Shore's overture, saying it came too late and that he doubted his sincerity. A frantic Mr Shore then made a less-than-moving apology to Mr Baines while he was on the stand. He has not apologized to Mr du Plessis, but in court explained it this way:
"I haven't had an opportunity to discuss that with my attorney."
Mr Baynham also says an appeal also could be based on the size of the award, which is more than double the size of the previous record holder in BC, and five times his lowball offer. "Obviously, there's a potential ground for appeal insofar as the total amount of the awards are concerned, the global amount; it's an extraordinary judgement in that regard," he says.
The star of the trial, Mr Chelekis, seems to have disappeared. Like Elvis, there are occasional reports of Chelekis sightings, although the once flamboyant tout-sheet luminary now maintains a very low profile.
The Securities and Exchange Commission had charged Mr Chelekis with illegal profits of at least US$1.1 million from his touting activities and early in 1997 he was fined US$162,000. Soon after, he was effectively banned from the VSE, where he had worked for dozens of companies.
(c) Copyright 1998 Canjex Publishing Ltd.