Scientology History in Toronto, Part 10

1992

[This is the last in the series]

As was seen in part 9, Ontario Court Judge James Southey ruled on December 2^nd, 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." [1]

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 14^th, 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". [2] 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, 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." [3]

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. [5]

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". [6] 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". [7] "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." [8] He said he was given a list of 12 agencies that he was expected to infiltrate. [9] As the operation proceeded, the target list grew to "probably a few dozen" agencies and individuals, he said. [10] 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. [11]

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. [9]

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.

[12]

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.

[13]

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. [14]

The trial continued for two months, until June 25^th, 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. [15]

The jury deliberated for a day and a half, and returned the verdicts noted in part 4 of this series. On September 11^th, 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 14^th, 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.

Reference: