R. v. Church of Scientology of Toronto et al., (1997) 99 O.A.C. 321 (CA)

• Judge: Robins, Laskin and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 18, 1997
• Jurisdiction: Ontario
• Citations: (1997), 99 O.A.C. 321 (CA)

R. v. Church of Scientology (1997), 99 O.A.C. 321 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Church of Scientology of Toronto and Jacqueline Matz (appellants)

(C13047; C13207)

Indexed As: R. v. Church of Scientology of Toronto et al.

Ontario Court of Appeal

Robins, Laskin and Rosenberg, JJ.A.

April 18, 1997.

Summary:

The Church of Scientology of Toronto and Matz, its director of operations, were each convicted of two counts of breach of trust contrary to s. 111 of the Criminal Code. The Church of Scientology of Toronto was fined $250,000 and Matz was fined $5,000. The Church of Scientology of Toronto appealed its conviction and sentence. Matz appealed her conviction.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - The Ontario Court of Appeal held that the application of the doctrine of identification to a nonprofit religious corporation infringed the freedom of religion guarantee in s. 2(a) of the Charter, but was a reason­able limit under s. 1 - See paragraphs 186 to 215.

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - The Ontario Court of Appeal held that, assuming the identifi­ca­tion doctrine violated s. 2(d) of the Char­ter, the violation was justified under s. 1 of the Charter - See paragraph 216.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury and jury selection (Charter s. 11(f)) - [See Civil Rights - Topic 3146 ].

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - The Church of Scientology of Toronto and Matz, its di­rector of operations, were charged with breach of trust and theft - The Church was a nonprofit religious corporation and Matz was a noncitizen - Under s. 2 of the Juries Act, noncitizens were not eli­gible for jury duty and under s. 3 certain pro­fessionals and spouses were not eligible - The Church and Matz submitted that the Juries Act provisions breached ss. 7, 11 and 15 of the Charter - The Ontario Court of Appeal held that ss. 7 and 11 ensured a jury representative of the community hav­ing been selected from a fair cross-section of the community - The Juries Act provi­sions did not breach ss. 7 or 11 - See paragraphs 127 to 164.

Civil Rights - Topic 5653.4

Equality and protection of the law - Par­ticular cases - Criminal law - Jury selec­tion - The Church of Scientology of Tor­onto and Matz, its director of oper­ations, were charged with breach of trust and theft - The Church was a nonprofit religious corporation and Matz was a noncitizen - Under s. 2 of the Juries Act, noncitizens were not eligible for jury duty and under s. 3 certain professionals and spouses were not eligible - The Church and Matz sub­mitted that the Juries Act provisions breached ss. 7, 11 and 15 of the Charter - The Ontario Court of Appeal held that neither the Church nor Matz had standing to challenge a breach of the Charter rights of noncitizens and the parties specified in s. 3 - Also Matz's equality rights were not breached - See paragraphs 114 to 126.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Church of Scientology of Toronto, a nonprofit religious corpo­ration, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - A search war­rant was obtained for the Church offices - The trial judge held that the search vio­lated the Church's s. 8 Charter rights - The trial judge excluded primary evidence, but allowed secondary evidence, including the testimony of ex-Scientologists (identified in seized documents) who were promised immunity in return for testifying - The Ontario Court of Appeal declined to inter­fere with the trial judge's decision not to exclude the secondary evidence - See paragraphs 68 to 95.

Criminal Law - Topic 263

General principles - Corporations - Crim­inal liability - Basis of - The Ontario Court of Appeal held that the identification doctrine applied to nonprofit religious corporations - See paragraphs 166 to 182.

Criminal Law - Topic 1928

Offences against property - Breach of trust - What constitutes - The Church of Sci­entology of Toronto, a nonprofit religious corporation, authorized members to infil­trate government agencies and other or­ganizations believed to be enemies of the Church to obtain information that would be useful to the Church - A member was planted in the Ontario Provincial Police, because it was believed to be investigating Scientology - A member was planted in the Ontario Ministry of the Attorney Gen­eral - She provided the Church with sev­eral folders of documents and allowed Scientologists access to archives - The jury convicted the Church of two counts of breach of trust - The Ontario Court of Appeal affirmed the convictions - See paragraphs 25 to 31.

Criminal Law - Topic 4311

Procedure - Jury - General - Challenging the array - The Church of Scientology of Toronto, a nonprofit religious corpo­ra­tion, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - The Church was charged with theft and breach of trust - The Church challenged the array on the ground that ss. 2 and 3 of the Juries Act breached ss. 15, 7, 11(d) and 11(f) of the Charter, where noncitizens were not eligi­ble to serve on the jury (s. 2) and medical practitioners, etc., and spouses of judges and law enforcement personnel were ex­cluded (s. 3) - The Ontario Court of Ap­peal rejected the ground of appeal - See paragraphs 97 to 164.

Criminal Law - Topic 4352.1

Procedure - Jury charge - Directions regarding similar fact evidence - [See Criminal Law - Topic 5213 ].

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - The Church of Scientology of Toronto, a nonprofit religious corpo­ra­tion, allegedly authorized members to infiltrate government agencies and other or­ganizations believed to be enemies of the Church to obtain information that would be useful to the Church - The Church was convicted of breach of trust - The Church submitted that the trial judge failed to instruct the jury that, to find it guilty based on the identification doctrine, it must be shown that the alleged directing minds of the Church had been delegated authority to design policy - The Ontario Court of Appeal held that the trial judge correctly instructed the jury - See paragraphs 217 to 231.

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - The Church of Scientology of Toronto, a non­profit religious corporation, allegedly authorized members to infiltrate govern­ment agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - The Church was charged with theft and breach of trust - The trial judge allowed the testimony of several ex-Scientologists who were promised immu­nity in return for testifying - The Church submitted that the trial judge failed to adequately warn the jury regarding the testimony of the witnesses and that the evidence was not confirmatory - The Ontario Court of Appeal held that the jury was adequately warned - See paragraphs 43 to 57.

Criminal Law - Topic 4387

Procedure - Jury charge - Comment by judge on facts - The Church of Scien­tology of Toronto, a nonprofit religious corporation, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - The Church was charged with theft and breach of trust - The case was lengthy and the facts were complex - The trial judge commented on the facts in the jury charge, but repeatedly stressed that the jury was not bound by his opinions on matters of fact - The Ontario Court of Appeal held that the trial judge did not err - See paragraphs 40 to 41.

Criminal Law - Topic 4388

Procedure - Jury charge - Directions re addresses by counsel - The Church of Scientology of Toronto, a nonprofit reli­gious corporation, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain informa­tion that would be useful to the Church - The Church was convicted of breach of trust - The Church appealed, alleging that the trial judge inappropriately responded to certain remarks in defence counsel's jury charge - The Ontario Court of Appeal dismissed the ground of appeal, stating that the trial judge's remarks were necessitated by the defence counsel's incorrect state­ments - See paragraph 42.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Church of Scientology of Toronto, a nonprofit religious corpo­ra­tion, authorized members to infiltrate govern­ment agencies and other organiza­tions believed to be enemies of the Church to obtain information that would be useful to the Church - The Crown made exten­sive disclosure, including copies of state­ments of former Scientolog­ists who testi­fied at trial and of Sciento­logists who did not testify at trial, access to Metro police files, and copies of notes of undercover agents - The trial judge declined to order further disclosure - The Church appealed its conviction on two counts of breach of trust, arguing, inter alia, that it was denied full disclosure - The Ontario Court of Appeal rejected the ground of appeal, where the Church failed to show a basis from which the trial judge could have concluded that other potentially relevant material existed - See paragraphs 58 to 67.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Church of Scientology of Toronto, a nonprofit religious corpo­ra­tion, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - The Church was charged with theft and breach of trust - The trial judge allowed evidence of similar criminal acts by Church members to show that the acts charged were committed with the knowledge of the Church - The trial judge charged the jury not to rely on the evidence as evidence of a propensity to condone criminal acts - The Ontario Court of Appeal held that the trial judge did not err in admitting the evidence and correctly charged the jury respecting the evidence - See paragraphs 36 to 39.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. - Warn­ing to jury of danger of reliance on - The Church of Scientology of Toronto, a non­profit religious corporation, allegedly authorized members to infiltrate govern­ment agencies and other organizations believed to be enemies of the Church to obtain information that would be useful to the Church - The chief Crown witnesses were former members of the Church who were promised immunity from prosecution if they testified about their part in the infiltration scheme - The Church was convicted of two counts of breach of trust - The Church appealed on the ground, inter alia, that the jury charge failed to stress the danger of relying on the wit­nesses' testimony - The Ontario Court of Appeal held that the jury charge was ade­quate - See paragraphs 43 to 52.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. - What constitutes corroboration - The Church of Scientology of Toronto, a nonprofit reli­gious corporation, allegedly authorized members to infiltrate government agencies and other organizations believed to be enemies of the Church to obtain informa­tion that would be useful to the Church - The chief Crown witnesses were former members of the Church who were prom­ised immunity from prosecution if they testified about their part in the infiltration scheme - The Church was convicted of two counts of breach of trust - The Church appealed, arguing, inter alia, that the evidence relied on by the Crown to support the evidence of the suspect witnesses was not capable of being con­firm­atory - The Ontario Court of Appeal held that the evidence was confirmatory - See paragraphs 53 to 57.

Criminal Law - Topic 5952

Sentence - Breach of trust - The Church of Scientology of Toronto, a nonprofit religious corporation, was fined $250,000 for two counts of breach of trust - The Church authorized members to infiltrate government agencies and other organiza­tions believed to be enemies of the Church to obtain information that would be useful to the Church - The Ontario Court of Appeal affirmed the sentence - The trial judge did not misconceive the gravity of the offence and did not err in conclud­ing that remorse was not a mitigating factor - In fixing the fine, the trial judge was entitled to look to the assets of the inter­national church - Also, the trial judge did not place undue emphasis on general de­terrence - See paragraphs 232 to 246.

Cases Noticed:

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 4].

R. v. Rose (J.) (1996), 90 O.A.C. 193; 28 O.R.(3d) 602 (C.A.), refd to. [para. 35].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 37].

R. v. Endicott, [1993] 3 S.C.R. 155; 156 N.R. 321; 141 A.R. 353; 46 W.A.C. 353, refd to. [para. 41].

R. v. A.W.E. - see R. v. Endicott.

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, refd to. [para. 47].

R. v. Chaplin, [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 63].

R. v. Carosella (N.) (1997), 207 N.R. 321; 98 O.A.C. 81 (S.C.C.), refd to. [para. 67].

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449, refd to. [para. 70].

Church of Scientology et al. and The Queen (No. 6) - see R. v. Church of Scientology of Toronto and Zaharia.

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 74].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 84].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 85].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673; 37 C.R.R. 335; [1989] 1 W.W.R. 385, refd to. [para. 87].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 107 C.C.C.(3d) 195 (C.A.), refd to. [para. 88].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81 (S.C.C.), refd to. [para. 88].

Baron et al. v. Minister of National Rev­enue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 91].

R. v. Burnett, [1985] 2 C.T.C. 227 (Ont. H.C.), refd to. [para. 91].

R. v. Goncalves, [1993] 2 S.C.R. 3; 150 N.R. 384; 135 A.R. 397; 33 W.A.C. 397, refd to. [para. 92].

R. v. Plant, [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 92].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577; 73 Alta. L.R.(2d) 97, refd to. [para. 93].

Bureau v. R. (1931), 51 Que. K.B. 207, refd to. [para. 98].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 107].

R. v. Laws (1994), 19 C.R.R.(2d) 269 (Ont. Gen. Div.), refd to. [para. 110].

R. v. Church of Scientology of Toronto et al. (1996), 92 O.A.C. 313 (C.A.), refd to. [para. 110].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 113].

Ontario Home Builders' Association et al. v. Board of Education of York Region et al., [1996] 2 S.C.R. 929; 201 N.R. 81; 93 O.A.C. 241; 137 D.L.R.(4th) 449, refd to. [para. 115].

Benner v. Canada (Secretary of State) (1997), 208 N.R. 81 (S.C.C.), refd to. [para. 115].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 118].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 119].

R. v. C.M. (1995), 82 O.A.C. 68; 98 C.C.C.(3d) 481 (C.A.), refd to. [para. 119].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 96 C.C.C.(3d) 1, refd to. [para. 119].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 120].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 121].

Eaton v. Board of Education of Brant County (1996), 207 N.R. 171; 97 O.A.C. 161; 142 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 124].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 124].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 124].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, appld. [para. 184]; refd to. [para. 127].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241, refd to. [para. 127].

Philippines (Republic) v. Pacificador (1993), 63 O.A.C. 344; 16 C.R.R.(2d) 299 (C.A.), refd to. [para. 129].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 133].

P.P.G. Industries (Canada) v. Canada (At­torney General) (1983), 3 C.C.C.(3d) 97 (B.C.C.A.), refd to. [para. 138].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 140].

Taylor v. Louisiana (1975), 95 S. Ct. 692, refd to. [para. 149].

Silagy v. Peters (1990), 905 F.2d 986 (7th Cir.), refd to. [para. 150].

Lockhart v. McCree (1986), 106 S. Ct. 1758, refd to. [para. 150].

Duren v. Missouri (1979), 99 S. Ct. 664, refd to. [para. 161].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 165].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 10 Q.A.C. 161, refd to. [para. 185].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 188].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. CIP Inc., [1992] 1 S.C.R. 843; 135 N.R. 90; 52 O.A.C. 366, refd to. [para. 195].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 193, refd to. [para. 200].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 213].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 230].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 123].

Corporations Act, R.S.O. 1990, c. C-38, sect. 122 [para. 179].

Juries Act, R.S.O 1990, c. J-3, sect. 2, sect. 3(1) [para. 103].

Authors and Works Noticed:

Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th Ed. 1959), p. 193 [para. 200].

Hansmann, Henry, The Evolving Law of Nonprofit Organizations: Do Current Trends Make Good Policy (1988-89), 39 Case Western L. Rev. 807, pp. 819-820 [para. 211]; 820 [para. 210].

Head, Ivan, The Stranger in our Midst: A Sketch of the Legal Status of the Alien in Canada (1964), Can. Y.B. Int'l L. p. 107 [para. 154].

Petersen, C., Institutionalized Racism: The Need for Reform of the Criminal Jury Selection Process (1993), 38 McGill L.J. 147, p. 163-65 [para. 125].

Russell, Dawn, Paedophilia: The Criminal Responsibility of Canada's Churches (1992), 15 Dalhousie L.J. 380, p. 394 [para. 206].

Counsel:

Clayton Ruby and Marlys Edwardh, for the appellant, Church of Scientology of Toronto;

John Norris, for the appellant, Jacqueline Matz;

Michael Bernstein and Renee Pomerance, for the respondent, Crown;

Frank Addario and Peter Rosenthal, for the intervener, Dudley Laws;

Roslyn J. Levine, Q.C., for the intervener, Attorney General of Canada;

Linda McCaffrey, Q.C., for the Ministry of Consumer and Commercial Relations.

These appeals were heard on September 9 to 13 and 16 to 17, 1996, before Robins, Laskin and Rosenberg, JJ.A., of the Ontario Court of Appeal. On April 18, 1997, Rosen­berg, J.A., delivered the following judgment for the court.