R. v. Church of Scientology of Toronto and Zaharia, (1987) 18 O.A.C. 321 (CA)

• Judge: Lacourcière, Goodman and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 30, 1987
• Jurisdiction: Ontario
• Citations: (1987), 18 O.A.C. 321 (CA);1987 CanLII 122 (NS CA);1987 CanLII 122 (ON CA);31 CCC (3d) 449;[1987] CarswellOnt 1401;[1987] OJ No 64 (QL);18 OAC 321;1 WCB (2d) 327;2 ACWS (3d) 292;30 CRR 238

R. v. Church of Scientology (1987), 18 O.A.C. 321 (CA)

MLB headnote and full text

R. v. Church of Scientology of Toronto

R. v. Michael P. Zaharia

Indexed As: R. v. Church of Scientology of Toronto and Zaharia

Ontario Court of Appeal

Lacourcière, Goodman and Finlayson, JJ.A.

January 30, 1987.

Summary:

Police obtained search warrants to search the business premises of the Toronto Church of Scientology and the dwelling house of Zaharia. Thousands of documents were seized. Subsequently, the court granted a detention order respecting the seized documents pursuant to s. 446(1) of the Criminal Code. Further orders extending the period of detention were also granted under s. 446(1)(a) of the Code.

The Church of Scientology and Zaharia applied to quash the search warrants and the detention orders and also applied for a return of all documents seized. The trial judge dismissed the applications to quash, but allowed in part the application for a return of documents seized. The Church and Zaharia appealed. The Crown cross-appealed respecting the judge's decision on the return of documents.

The Ontario Court of Appeal dismissed the appeal. The Court of Appeal allowed the Crown's cross-appeal.

Administrative Law - Topic 1067

Classification of power or function - Administrative - Issuance of detention order reitems seized by search warrant - The Ontario Court of Appeal held that the granting of a detention order under s. 446(1) of the Criminal Code and a further order extending the detention under s. 446(1)(a) were administrative acts - See paragraphs 266, 269 to 270, 279.

Civil Rights - Topic 345

Freedom of religion - Exercise of - Restrictions - The Ontario Court of Appeal held that the criminal law of Canada operates to limit religious practices even when based on 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 - See paragraph 19.

Civil Rights - Topic 347

Freedom of religion - Exercise of - As defence to crime - The Ontario Court of Appeal discussed generally the concept of freedom of religion as a possible defence to criminal activity - See paragraphs 20 to 28.

Civil Rights - Topic 1649

Property - Search and seizure - Detention of things seized - The Ontario Court of Appeal held that s. 446(1) of the Criminal Code was valid and did not violate ss. 7 and 8 of the Charter of Rights by reason that the section provided for the ex parte detention of items seized under a search warrant - The court held that ss. 7 and 8 were inapplicable to detention orders, because the Charter did not protect property rights and especially not rights, respecting the retention or use of property - See paragraphs 273 to 282.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 1649 above].

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - What constitutes a justiciable issue - Police searched the premises of the Church of Scientology under a search warrant granted pursuant to an information alleging that the described documents and items would afford evidence respecting the commission of criminal offences - Three proposed counts were included in the supporting material - The counts alleged tax fraud, fraud on the public respecting the sale of certain items, and conspiracy to effect a lawful purpose by unlawful means - Scientology alleged that a church could not be subject to criminal prosecution arising out of its principles or practices and that the spiritual issues raised in the proposed counts were non-justiciable - The Ontario Court of Appeal held that the issues raised by Scientology were justiciable in a criminal court and could only be resolved by a trial and not on an application to quash the search warrant - See paragraphs 12 to 28, 30 to 36, 40 to 60, 61 to 63.

Criminal Law - Topic 5

Persons who may be prosecuted under the Criminal Code - Churches - [See Courts - Topic 2022 above].

Criminal Law - Topic 238

Statutory defences and exceptions - Freedom of religion - [See Civil Rights - Topic 347 above].

Criminal Law - Topic 3043

Search warrants - Jurisdiction to quash - The Ontario Court of Appeal held that certiorari was available to quash a search warrant before trial - The court discussed the scope of review and held that jurisdictional error was required - See paragraphs 67 to 90 - The appropriate test on a certiorari application was whether there was evidence upon which the justice of the peace could determine that a search warrant should be issued - It was not the task of the reviewing judge to weigh the evidence or determine whether the justice should have been satisfied by the sworn information - See paragraph 95 - The court further held that the Charter has not altered the scope of review - It will be for the reviewing judge to determine if there were any Charter violations and if so, whether such violations constituted jurisdictional error - Even if no jurisdictional error occurred, the court must determine whether an appropriate remedy should be granted under s. 24(1) of the Charter - See paragraphs 96 to 97.

Criminal Law - Topic 3048

Search warrants - Validity of - Severability of partially defective warrant - The Ontario Court of Appeal held that the doctrine of severability can be applied to a search warrant - See paragraph 227.

Criminal Law - Topic 3105

Search warrants - Issue of - Re privileged documents - The Ontario Court of Appeal discussed the procedure to be followed and the test to be applied by a justice on an application for a search warrant, where documents to be seized may be privileged - See paragraphs 218 to 219, 222 to 223, 256 to 259.

Criminal Law - Topic 3105

Search warrants - Issue of - Re privileged documents - The Ontario Court of Appeal held that a justice of the peace has jurisdiction to issue a search warrant to obtain evidence of the commission of a criminal offence, but lacks jurisdiction to issue a warrant respecting privileged documents, unless the documents are specifically alleged either to be criminal in themselves or to have been made with a view to facilitate the commission of a crime - See paragraphs 211 to 228.

Criminal Law - Topic 3105

Search warrants - Issue of - Re privileged documents - Documents seized under a search warrant were later found to be subject to solicitor-client privilege - There had been no allegation made to the issuing justice that the documents themselves were criminal or made to facilitate the commission of a crime - Noting that the possibility that privileged documents might be seized was not readily apparent to the issuing justice, the Ontario Court of Appeal refused to quash the warrant on the ground that the justice lacked jurisdiction - See paragraphs 211 to 228.

Criminal Law - Topic 3105

Search warrants - Issue of - Re privileged documents - The Ontario Court of Appeal held that although a justice of the peace lacks jurisdiction to issue a search warrant respecting privileged documents, a justice had jurisdiction to order the seizure of documents which were allegedly subject to the priest-penitent privilege, because no such privilege exists prima facie - On an application to quash the warrant, the reviewing judge may consider the claim of privilege and its effect on the justice's jurisdiction to issue the warrant - See paragraphs 251 to 253.

Criminal Law - Topic 3105

Search warrants - Issue of - Re privileged documents - The subject of a search warrant applied to quash the warrant, alleging that many of the documents seized were subject to the priest-penitent privilege and that the issuing justice therefore lacked jurisdiction to issue the warrant - The Ontario Court of Appeal held that the justice had jurisdiction because he correctly concluded that the documents were made to facilitate the commission of a criminal offence and thus were capable of being seized under warrant regardless of their allegedly privileged nature - See paragraph 255 - The court further held that the justice did not err in authorizing the seizure, because there was no alternate source or methods of obtaining the information - See paragraphs 256 to 259.

Criminal Law - Topic 3167

Search warrants - Power of seizure - Setting aside warrant - Evidence - The Ontario Court of Appeal stated that absent fraud or a reckless disregard for the truth it is incumbent on the applicant, on a motion to quash a search warrant in certiorari proceedings, to show that there was no evidence upon which the justice could be satisfied that a search would afford evidence of the commission of an offence under the Criminal Code - See paragraph 102.

Criminal Law - Topic 3167

Search warrants - Power of seizure - Setting aside warrant - Evidence - Cross-examination of informant - The Church of Scientology applied to quash a search warrant - The Ontario Court of Appeal affirmed that before being granted leave to cross-examine the informant, Scientology was required to establish a prima facie case of deliberate fraud or reckless misstatements or omissions of fact - The court further held that since Scientology established a prima facie case sufficient to meet the test, the reviewing judge was correct in limiting the cross-examination to matters which would have a bearing on the informant's alleged fraud or reckless disregard for the truth - The court held that the judge properly refused cross-examination of the informant respecting (1) his opinion or knowledge of whether the issuing justice considered the information and (2) the informant's use of arcane language in the information - See paragraphs 178 to 201.

Criminal Law - Topic 3170

Search warrants - Power of seizure - Detention of things seized - [See Civil Rights - Topic 1649 above].

Criminal Law - Topic 3175

Search warrants - Power of seizure - Setting aside detention order - The subject of a search warrant under which documents were seized, detained under s. 446(1) of the Criminal Code and further detained under s. 446(1)(a), alleged that the orders for further detention were invalid on their face - The objections were the absence of a date, the placement of a signature and the absence of the period of time for which the order was to run - The Ontario Court of Appeal held that these were insufficient to quash the detention orders - See paragraphs 288 to 290.

Criminal Law - Topic 3181

Search warrants - Setting aside - Grounds - General - Police searched the premises of the Church of Scientology under a search warrant granted pursuant to an information alleging that the described documents and items would afford evidence respecting the commission of criminal offences - Three proposed counts were included in the supporting material - The counts alleged tax fraud, fraud on the public respecting the sale of certain courses and items, where the items were incapable of providing the represented benefits, and conspiracy to effect a lawful purpose by unlawful means, i.e. the use of the Guardian Office Of Scientology to commit indictable offences - Scientology alleged that the charges related to spiritual issues, which were non-justiciable - The Ontario Court of Appeal held that on an application to quash the warrant, it was inappropriate to raise defences respecting the proposed charges - See paragraphs 12 to 28, 30 to 36, 40 to 60, 61 to 63.

Criminal Law - Topic 3181

Search warrants - Setting aside - Grounds - General - The Ontario Court of Appeal held that a valid search warrant cannot be invalidated by any conduct subsequent to its issue such as an unlawful search and seizure contrary to s. 8 of the Charter - See paragraph 271.

Criminal Law - Topic 3183

Search warrants - Setting aside - Grounds - Information - Sufficiency of form and content - Police searched the premises of the Church of Scientology under a search warrant - Scientology attacked the warrant on the ground that the information upon which it was granted contained statements of opinion and conclusions - The Ontario Court of Appeal held that the reviewing court was correct in considering whether, apart from the impugned material, the information contained sufficient allegations to satisfy the issuing justice that there was reasonable ground to believe a warrant could issue - See paragraphs 114 to 117.

Criminal Law - Topic 3183

Search warrants - Setting aside - Grounds - Information - Sufficiency of form and content - Police searched the premises of the Church of Scientology under a search warrant - Scientology attacked the warrant on the ground that the information upon which it was granted contained hearsay not attributed to any particular source - Three sources were relied on by the informant, two of whom were confidential sources - The Ontario Court of Appeal held that the reviewing court was correct in determining that the issuing justice may consider such information - The court held that the reviewing court should apply the "totality of circumstances" test to the decision reached by the issuing justice (i.e. that the issuing justice should consider all the circumstances in the information) - See paragraphs 118 to 129.

Criminal Law - Topic 3183

Search warrants - Setting aside - Grounds - Information - Sufficiency of form and content - The subject of a search warrant (Church of Scientology) complained that the warrant and the information pursuant to which it was granted lacked sufficient particularity in the description of things to be searched for - The informant had described in general terms the nature of the documents for which the warrant was sought - The information set out three proposed charges respecting which the documents and items to be seized would allegedly afford evidence - The Ontario Court of Appeal held that considering the size and sophisticated nature of Scientology and its affiliates, the continuing nature of the alleged offences and the lengthy period of time during which they were alleged to have been committed, the warrant authorizing search and seizure of broad classes of documents was justified - The court held that the amount of discretion required by the executing officers did not constitute jurisdictional error - See paragraphs 148 to 176.

Criminal Law - Topic 3184

Search warrants - Setting aside - Grounds - Falsehood in sworn information - The Church of Scientology applied to quash a search warrant - The information upon which the warrant was granted contained three principal misstatements and material omissions of fact - The reviewing judge, after allowing cross-examination of the informant by Scientology, held that there was no deliberate attempt to omit, conceal or mislead or a reckless disregard for the truth, and so refused to quash the warrant - The Ontario Court of Appeal refused to disturb the judge's finding - The court further held that for the informant's misstatements and omissions to constitute a reckless disregard for the truth, there must be a flagrant lack of concern for the truth or accuracy of the statements, which approaches fraudulent behaviour - The lack of concern must be unconscionable and does not include mere error of judgment, ordinary negligence or carelessness - See paragraphs 203 to 207.

Criminal Law - Topic 3184

Search warrants - Setting aside - Grounds - Falsehood in sworn information - The subject of a search warrant applied to quash the warrant because of, inter alia, material omissions and misstatements in the information - The Ontario Court of Appeal held that where the reviewing judge finds no fraud or reckless disregard for the truth, the judge should determine whether there is any evidence remaining, after disregarding the false statements and considering the omissions, upon which the issuing justice could have been satisfied that a warrant should issue - See paragraphs 208 to 210.

Criminal Law - Topic 3185

Search warrants - Setting aside - Grounds - Failure to state grounds for belief - Police searched the premises of the Church of Scientology under a search warrant granted pursuant to an information alleging that the described documents and items would afford evidence of the commission of criminal offences - Three proposed counts were included with the information, alleging tax fraud, fraud and conspiracy to use Scientology to commit indictable offences - Scientology alleged that the information did not set out reasonable grounds to believe that these offences had been committed - The Ontario Court of Appeal disagreed - See paragraphs 98 to 105 - The court held that the reviewing judge was correct in determining whether the information contained allegations on the basis of which the justice could, as a matter of law, be satisfied that reasonable grounds to believe existed - See paragraphs 106 to 112 - The court further held that the Charter did not affect the test for issuing search warrants - See paragraphs 130 to 132.

Criminal Law - Topic 3188

Search warrants - Setting aside - Grounds - Error of jurisdiction - [See Criminal Law - Topic 3043 above].

Evidence - Topic 4311

Witnesses - Privilege - Priest-penitent communications - General - The Ontario Court of Appeal examined the history of the sacerdotal or priestpenitent privilege at common law and by statute - See paragraphs 236 to 247 - The court concluded that there is no recognized class privilege accorded to the priest and penitent relationship and thus no prima facie entitlement to privilege on this basis, but that the courts should encourage recognition of this privilege on a case by case basis - See paragraphs 251 to 252.

Statutes - Topic 5126

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Mandatory power - What constitutes - The Ontario Court of Appeal held that the word "shall" in s. 446(1) of the Criminal Code is mandatory and not discretionary - See paragraphs 264 to 265.

Cases Noticed:

Church of Scientology and the Queen (No. 3), Re (1985), 17 C.C.C.(3d) 489, refd to. [para. 8].

Church of Scientology and the Queen (No. 1), Re (1984), 13 C.C.C.(3d) 93, refd to. [para. 11].

Church of Scientology and the Queen (No. 2), Re (1984), 13 C.C.C.(3d) 97, refd to. [para. 11].

Church of Scientology and the Queen (No. 2), Re (1984), 15 C.C.C.(3d) 190 (addendum), refd to. [para. 11].

Church of Scientology and the Queen (No. 3), Re (1984), 13 C.C.C.(3d) 353, refd to. [para. 11].

Church of Scientology and the Queen (No. 4), Re (1985), 17 C.C.C.(3d) 489, refd to. [para. 11].

Church of Scientology and the Queen (No. 5), Re (1985), 18 C.C.C.(3d) 244, refd to. [para. 11].

Church of Scientology et al. and the Queen (No. 6), Re; Walsh et al. and the Queen, Re (1985), 21 C.C.C.(3d) 147, refd to. [para. 11].

R. v. Zaharia and Church of Scientology of Toronto (1985), 21 C.C.C.(3d) 118, refd to. [para. 11].

Founding Church of Scientology v. United States (1969), 412 F.2d 1197, refd to. [para. 14].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481, consd. [para. 15].

United States v. Ballard (1944), 322 U.S. 78, consd. [para. 16].

Supple, In re Estate of (1967), 55 Cal. Rptr. 542, refd to. [para. 17].

Davis v. Beason (1890), 133 U.S. 333, refd to. [para. 19].

R. v. Lewis (1903), 7 C.C.C. 261 (Ont. C.A.), consd. [para. 23].

R. v. Chomokowski (1973), 11 C.C.C.(2d) 562, consd. [para. 23].

R. v. Reed (1983), 8 C.C.C.(3d) 153 (B.C. Co. Ct.), consd. [para. 23].

R. v. "Bear's Shin Bone" (1899), 3 C.C.C. 329, consd. [para. 23].

Baxter v. Baxter (1983), 36 R.F.L.(2d) 186 (Ont. H.C.J.), consd. [para. 24].

Price et al. v. A.G. of British Columbia et al., [1976] 5 W.W.R. 656 (B.C.S.C.), consd. [para. 25].

R. v. Hothi et al. (1985), 33 Man.R.(2d) 180; 18 C.C.C.(3d) 31, consd. [para. 26].

R. v. Harrold, [1971] 3 W.W.R. 365 (B.C.C.A.), consd. [para. 27].

R. v. Jack and Charlie (1982), 67 C.C.C.(2d) 289, affd. [1985] 2 S.C.R. 332; 28 N.R. 162, consd. [para. 27].

Fardella v. Treasury Board of Canada (1974), 5 N.R. 571; 47 D.L.R. 689 (F.C.A.), consd. [para. 28].

Lubell and The Queen, Re (1973), 11 C.C.C.(2d) 188, refd to. [para. 33].

Royal American Shows Inc. v. The Queen ex rel. Hahn et al., [1975] 6 W.W.R. 571, refd to. [para. 33].

R. v. Coté and Vézina (1986), 64 N.R. 93; 23 C.C.C.(3d) 481 (S.C.C.), consd. [para. 39].

R. v. Morozuk (1986), 64 N.R. 189; 24 C.C.C.(3d) 257, consd. [para. 39].

R. v. Morgentaler, Smoling and Scott (1984), 14 C.C.C.(3d) 258 (Ont. H.C.), refd to. [para. 43].

Founding Church of Scientology of Washington v. United States (1969), 409 F.2d 1146, refd to. [para. 45].

Cantwell v. Connecticut (1940), 310 U.S. 296, refd to. [para. 46].

United States v. Article or Device, etc. (1971), 333 F. Supp. 357, refd to. [para. 47].

Christofferson v. Church of Scientology of Portland et al. (1982), 644 P.2d 577 (Or. App.), refd to. [para. 48].

Church of the New Faith v. Commissioner of Pay-Roll Tax (1983), 154 C.L.R. 120 (Aust. H.C.), consd. [para. 50].

Ambassador College v. Geotzke (1982), 675 F.2d 662, refd to. [para. 57].

Missouri Church of Scientology v. State Tax Commission (1978), 560 S.W.2d 837, consd. [para. 58].

Pastor X and the Church of Scientology v. Sweden (1979), 16 European Commission of Human Rights 68, consd. [para. 58].

Church of Scientology of Minnesota et al. v. Department of Health, Education and Welfare et al. (1971), 341 F. Supp. 563, consd. [para. 58].

Van Schaick v. Church of Scientology of California Inc. (1982), 535 F. Supp. 1125, consd. [para. 59].

R. v. Mills (1962), 47 Cr. A.R. 49, refd to. [para. 63].

R. v. Walker (1887), 13 O.R. 83, consd. [para. 67].

Sleeth v. Hurlbert (1896), 25 S.C.R. 620, consd. [para. 68].

R. v. Kehr (1906), 11 C.C.C. 52 (Ex. Ct.), consd. [para. 69].

R. v. Solloway and Mills (1930), 53 C.C.C. 271, consd. [para. 71].

R. v. Denaburg (1935), 64 C.C.C. 216 (Man. C.A.), consd. [para. 75].

King, The, Re v. Hallinan et al. (1937), 68 C.C.C. 226 (Ont. H.C.), consd. [para. 75].

R. v. Foster, Ex parte Re Royal Canadian Legion (Branch 177) et al., [1964] 3 C.C.C. 82 (B.C.S.C.), consd. [para. 76].

Worrall, Re, [1965] 2 C.C.C. 1 (Ont. C.A.), consd. [para. 78].

R. v. Collin, Ex parte Merrick et al. (1971), 1 C.C.C.(2d) 8, consd. [para. 79].

PSI Mind Development Institute et al. and The Queen, Re (1977), 37 C.C.C.(2d) 263, consd. [para. 80].

Capital Associates Ltd. v. Monty et al., [1968] Qué. B.R. 333, consd. [para. 82].

Laporte and The Queen, Re (1972), 29 D.L.R.(3d) 651, consd. [para. 83].

R. v. Jackson (1983), 9 C.C.C.(3d) 125 (B.C.C.A.), consd. [para. 84].

R. v. Print Three Inc. et al. (1985), 10 O.A.C. 220; 20 C.C.C.(3d) 392, consd. [para. 87].

Times Square Bookstore, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503, consd. [para. 88].

R. v. Heaslip et al. (1985), 1 O.A.C. 81; 9 C.C.C.(3d) 480, refd to. [para. 91].

R. v. Anderson (1984), 2 O.A.C. 258; 9 C.R.R. 161, refd to. [para. 91].

R. v. Baig (1985), 9 O.A.C. 266; 20 C.C.C.(3d) 515, refd to. [para. 91].

R. v. Botting, [1966] 3 C.C.C. 373, refd to. [para. 92].

R. v. Mills (1986), 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 96].

Imperial Tobacco Sales Co. v. Attorney-General of Alberta (1941), 76 C.C.C. 84, refd to. [para. 120].

Illinois v. Gates (1983), 462 U.S. 213, refd to. [para. 122].

Aguilar v. Texas (1964), 378 U.S. 108, not appld. [para. 122].

Spinelli v. United States (1969), 393 U.S. 410, not appld. [para. 122].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 130].

Voss v. Bergsgaard (1985), 774 F.2d 402, not appld. [para. 136].

Stanford v. Texas (1965), 379 U.S. 476, not appld. [para. 136].

Rosden v. Kentucky (1973), 413 U.S. 496, not appld. [para. 136].

Zurcher v. Stanford Daily (1978), 436 U.S. 547, not appld. [para. 136].

Mareno v. Search Warrant (1966), 367 U.S. 717, not appld. [para. 136].

A Quantity of Books v. Kansas (1964), 378 U.S. 205, not appld. [para. 136].

Descôteaux et al. v. Mierzwinski et al. (1982), 44 N.R. 462; 70 C.C.C.(2d) 385 (S.C.C.), consd. [para. 143].

Pacific Press Ltd. v. Attorney-General of British Columbia et al., [1977] 5 W.W.R. 507, refd to. [para. 145].

New York v. P.J. Video Inc. (1985), 54 L.W. 4396, refd to. [para. 148].

R. v. Burnett (1985), 2 C.T.C. 227, consd. [para. 154].

Dare to be Great of Canada (1971) Ltd. and Attorney-General for Alberta, Re (1972), 6 C.C.C.(2d) 408, refd to. [para. 166].

Newfoundland and Labrador Corporation Ltd. et al. and Her Majesty's Stationery General (1974), 6 Nfld. & P.E.I.R. 274, refd to. [para. 174].

Liberal Party of Quebec and Mierzwinski et al., Re (1978), 46 C.C.C.(2d) 118, refd to. [para. 175].

Ontario Public Service Employees Union et al. v. Ministry of Correctional Services (1984), 2 O.A.C. 351; 45 O.R.(2d) 70, not appld. [para. 185].

Canada Metal Co. Ltd. and Heap, Re (1975), 7 O.R.(2d) 185, not appld. [para. 186].

Seaway Trust Co. et al. v. The Queen in right of Ontario et al. (1983), 5 C.R.R. 257, not appld. [para. 188].

Franks v. Delaware (1978), 438 U.S. 154, consd. [para. 191].

Shumiatcher v. Attorney-General of Saskatchewan and Salterio, J.P. (1960), 129 C.C.C. 267, not appld. [para. 195].

Abou-Assale and Pollack and the Queen, Re (1978), 39 C.C.C.(2d) 546, not appld. [para. 195].

Kelly Douglas and Co. Ltd. v. the Queen in the Right of British Columbia (1981), 129 D.L.R. 154, not appld. [para. 195].

Goodman and Carr et al. and M.N.R., Re, [1968] 2 O.R. 814, refd to. [para. 222].

Borden & Elliot and The Queen, Re (1977), 30 C.C.C.(2d) 337, refd to. [para. 222].

R. v. Johnson et al., [1971] 4 W.W.R. 534, (B.C.C.A.), refd to. [para. 227].

Slavutych v. Board of Governors of the University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [para. 234].

Wheeler v. LeMarchant (1881), 17 Ch.D. 675, refd to. [para. 236].

Annonymous (1693), Skin. 404; 90 E.R. 179 (K.B.), refd to. [para. 237].

Rex v. Sparkes, cited in Dubarre v. Livette (1791), Peake N.P. 108; 170 E.R. 96 (K.B.), refd to. [para. 237].

Wilson v. Rastall (1792), 4 Term R. 753; 100 E.R. 1283 (K.B.), refd to. [para. 237].

R. v. Gilham (1828), 1 Moody C.C. 186; 168 E.R. 1235 (C.C.C.R.), refd to. [para. 237].

Broad v. Pitt (1828), 5 Car. & P. 518; 172 E.R. 528 (C.P.), refd to. [para. 237].

Greenlaw v. King (1838), 1 Beav. 137; 48 E.R. 891 (Rolls Ct.), refd to. [para. 237].

Russell v. Jackson (1851), 9 Hare 387; 68 E.R. 558 (Ch.), refd to. [para. 237].

R. v. Hay (1860), 2 Fost. & Fin. 4; 175 E.R. 933 (Assizes), refd to. [para. 237].

Anderson v. Bank (1876), 2 Ch.D. 644 (C.A.), refd to. [para. 237].

Wheeler v. LeMarchant (1881), 17 Ch.D. 675 (C.A.), refd to. [para. 237].

Normanshaw v. Normanshaw (1893), 69 L.T.R.(N.S.) 468 (P.D.& A.), refd to. [para. 237].

Mullen v. United States (1985), 263 F.2d 275, refd to. [para. 238].

Cook v. Carroll, [1945] I.R. 515, refd to. [para. 240].

United States v. Nixon et al. (1974), 418 U.S. 683, consd. [para. 248].

Jim Pattison Industries v. The Queen (1985), 3 C.P.R.(3d) 9, refd to. [para. 273].

Retention of Seized Goods and Barnable, P.C.J., Re (1986), 59 Nfld. & P.E.I.R. 112; 178 A.P.R. 112; 27 C.C.C.(3d) 565, refd to. [para. 274].

Williams v. Kaplan, Governor in Council and Attorney-General for Canada (1983), 1 O.A.C. 275; 45 O.R.(2d) 291, refd to. [para. 279].

Becker and The Queen in Right of Alberta, Re (1983), 148 D.L.R.(3d) 539, refd to. [para. 279].

Manicom et al. v. Oxford County and Attorney General for Ontario (1985), 11 O.A.C. 38; 52 O.R.(2d) 137, refd to. [para. 279].

Royal American Shows Inc. v. Minister of National Revenue and McClelland, J., [1978] 1 F.C. 72; 15 N.R. 241 (F.C.A.), dist. [para. 280].

United States v. Dauphinee (1976), 538 F.2d 1, refd to. [para. 281].

United States v. Kennedy (1972), 457 F.2d 63, refd to. [para. 282].

R. v. Baker (1977), 35 C.C.C.(2d) 314 (B.C.C.A.), refd to. [para. 289].

Statutes Noticed:

Corporations Tax Act, R.S.O. 1980, c. 97, sect. 49(1)(b) [para. 31].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 149(1)(f), sect. 149(1)(1), sect. 149(10) [para. 31].

Criminal Code, R.S.C. 1970, c. C-34, sect. 443 [paras. 94, 102, 106, 113, 132, 134, 144, 151, 176, 181-184, 201]; sect. 446(5) [para. 215]; sect. 446(1) [paras. 263, 265-266, 269, 272, 284-286].

Canadian Charter of Rights and Freedoms, 1982, sect. 2 [paras. 250, 253]; sect. 7 [paras. 270, 279, 285]; sect. 8 [paras. 94, 111, 134, 138, 140-141, 174, 176, 270-271, 285]; sect. 24(1) [paras. 97, 174].

Civil Code of Quebec 1965, vol. 2, sect. 308 [para. 245, Fn. 1].

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 9 [para. 245, Fn. 1].

Evidence Act, R.S.N. 1970, c. 115, sect. 6 [para. 245, Fn. 2].

Model Code of Evidence, American Law Institute, rule 219 [para. 245, Fn. 3].

Uniform Rules of Evidence, rule 29 [para. 245, Fn. 4].

Authors and Works Noticed:

Hubbard, L. Ron, Dianetics: The Modern Science of Mental Health [para. 29].

Fontana, The Law of Search and Seizure in Canada (1984), p. 102 [para. 85].

Letourneau, The Prerogative Writs in Canadian Criminal Law and Procedure (1976) [para. 85].

Tremeear's Annotated Criminal Code, 1985 Supplement to (6th Ed.) [para. 218].

Best on Evidence (11th Ed. 1911, Ed. Phipson) [para. 238].

R. v. Hay, Editorial Note (1860), 2 Fost. & Fin. 4; 175 E.R. 933 (Assizes) [para. 238].

Hogan, A Modern Problem of the Privilege of the Confessional (1951), 6 Loyola L. Rev. 1 [para. 238].

Tiemann, Right to Silence - Privileged Communications and the Paster (1964) [para. 238].

Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, pp. 527-529, ss. 2286-2296 [para. 241]; pp. 869-878 [para. 238].

Blackstone's Commentaries, vol. 4, c. 4 [para. 238].

Norman, Anti-Catholicism in Victorian England (1968) [para. 238].

Stephen, A Digest of the Law of Evidence (7th Ed. 1906), pp. 204-206 [para. 238].

Canadian Encyclopedic Digest (Ont.)(3rd Ed. 1976), pp. 57-467 [para. 239].

Evidence, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), pp. 417-423 [para. 247].

Evidence, Ontario Law Reform Commission Report on the Law of (1976), pp. 145-146 [para. 247].

Civil Rights, Royal Commission Inquiry into, Report No. 1 (1968), c. 53, pp. 813-832 [para. 247].

Privilege in Civil Proceedings, 16th Report of the English Law Reform Commission Committee on (1967), paras. 46-47, pp. 19-20 [para. 247].

Evidence, 11th Report of the English Criminal Law Review Committee on (1972), paras. 272-275, pp. 157-160 [para. 247].

Counsel:

Clayton Ruby, Michael Code and Melvyn Green, for the appellants, The Church of Scientology and Zaharia;

Morris Manning, Q.C., for Walsh and others;

Bonnie J. Wein, Michael Bernstein and Joceyln van Overbeek, for the respondent.

This appeal was heard before Lacourcière, Goodman and Finlayson, JJ.A., of the Ontario Court of Appeal on June 2-6, 9-10 and 11-13, 1986. The decision of the Court of Appeal was released on January 30, 1987.