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 appellant, Church of Scientology of Toronto.  Between 1974 and 1976, Scientologists 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 documents 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.

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.

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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 instance, 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 acquisition of confidential materials.

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 taking 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 with the Ministry of the 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 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 occasion.

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 could be returned to the Ministry.

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XII.     SENTENCE

A.        Introduction

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.

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 with 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 offences and therefore overemphasised 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 offence is that there was no significant interference with law enforcement or the administration of justice.  As it turned 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 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 upon 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.  [Emphasis added.]

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 offences.  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 offences 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 offences.  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 part 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.

C.        Remorse

The trial judge unequivocally rejected the appellant's submission that  remorse was a mitigating factor.  He expressed his reasons for doing so as follows:

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 the 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 twenty years after the fact.  Our justice system 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 corporation to 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 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 raised 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 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 he considered general deterrence to be the principal objective in determining the amount of the fine.  In my view, he 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.