June 4, 2002

Media challenge publication ban

Gag order goes beyond its aim to protect the children

Christie Blatchford
National Post

ST. THOMAS, Ont. - Even as a judge's sweeping publication ban continues to render a celebrated child-protection case effectively secret, including compelling evidence heard yesterday about the involved youngsters, the ban itself is under appeal.

A Toronto lawyer representing six media outlets, including the National Post, yesterday filed an appeal seeking to overturn the wide-ranging gag order of Ontario Court Justice Eleanor Schnall, which was imposed over two days in court here last week.

Renato Gasparatto is slated to appear in Superior Court in London, Ont., today, seeking to have the case heard on June 28.

Mr. Gasparatto represents the London Free Press, one of the newspapers contesting the ban.

He will be standing in for Toronto lawyer Tony Wong, who, in addition to the Free Press and the Post, represents the Toronto Star, the Canadian Press, the Hamilton Spectator and the CBC on the appeal.

The hearing itself centres around the much-publicized seizure last summer of seven children from their fundamentalist Christian home in the nearby town of Aylmer by the local child-welfare agency, Child and Family Services of St. Thomas and Elgin County.

The youngsters, aged six to 15, were dragged weeping and screaming from the arms of congregants from the Church of God Restoration, the parents' church, who had arrived to support the mother of the family and her pastor, and were temporarily placed in foster care.

The social worker who had carriage of the family's file when the children were abruptly apprehended last July 4 yesterday spent her fourth day in the witness stand.

Toward day's end, she was cross-examined by Donald Kilpatrick, appointed by the provincial Office of the Children's Lawyer.

It is an arm of the Ontario government that represents children in cases where there's a "difference in the views" between the child and a parent, or between a child and the children's aid society that is seeking to have him removed from his home or which alleges him to be in need of protection from actual physical harm.

In this case, it is clear the seven children want to remain with their parents, because while the St. Thomas society alleges the youngsters are in need of protection, Mr. Kilpatrick says they are not.

Originally the society was seeking a six-month wardship of the youngsters, which triggered Mr. Kilpatrick's involvement. It now wants a year's supervision order, which would mean the children remain in the care of their parents, albeit under the society's watchful eye.

But society lawyer Alfred Mamo, in his opening statement last week, also alleged the youngsters are being "hit with objects" and thus at risk.

At bottom, it means that two different public agencies -- one the St. Thomas society, the other the Office of the Children's Lawyer, both with the goal of acting in the best interests of the youngsters -- are at odds over what should happen to them.

And yesterday, Mr. Kilpatrick's gentle but pointed questioning of the young social worker, who was just 27 and only two months into her first full-time job when she apprehended the children, shed light on why his office has taken the position it has here.

While Judge Schnall's massive publication ban prohibits detailed reporting of testimony in the case, in a general way it can be said that Mr. Kilpatrick's questioning dealt not with evidence the society had that the children were being harmed -- but rather with an alleged lack of it.

The youngsters were in foster homes for only three weeks before being returned, amid much media attention, to their parents, who had agreed to refrain from the use of corporal punishment pending the matter being resolved at this hearing, a deal they later renounced, via a press release, last December.

Mr. Kilpatrick yesterday took the social worker through the dozens of meetings she had with the children after their return home, and in the process added to the picture that is emerging of them here as arguably indoctrinated in Church of God dogma, but for all that, as healthy, happy and well-adjusted youngsters with the confidence to engage their adult keepers in sometimes vigorous debate about the merits of spanking

Church of God members, who dress like Mennonites -- there are estimated to be between 20,000 and 30,000 of them living in this part of southwestern Ontario at any given time -- and share with them the use of a dialect called "low German," believe spankings should be administered with a rod or switch, because the hand should be reserved for kindness.

In his appeal, Mr. Wong cited 18 instances where he says Judge Schnall made errors in law in imposing what he described as the "overly broad, potentially permanent and questionable in its efficacy" ban. At bottom, he said, she has ignored "the presumption of openness" in the courts to which Canadians are constitutionally and by common-law principle entitled, and "created a presumption of covertness with respect to judicial proceedings."

While the identity of children and their parents are routinely protected in child-protection hearings -- and no media outlet was challenging this -- Judge Schnall made two key decisions that rendered this ban far more comprehensive than normal.

One was to declare, upon "no evidence" whatsoever as Mr. Wong noted, that if the media were allowed to fully cover the hearing, the youngsters would suffer "emotional harm." This was despite the fact that the church and the parents allegedly "courted and invited" media attention from the day the children were first seized.

The judge's second controversial decision was to rule that virtually all the evidence would be heard first in "voir dire," a French term for a trial within a trial that is held to hear evidence that may later be found to be inadmissible at trial and which means it cannot be reported.

The purpose of voir dires, generally, is protect jurors in criminal proceedings from hearing prejudicial evidence against an accused that may have been illegally or improperly obtained.

The Canadian Charter of Rights and Freedoms affirms freedom of the press as one of the fundamental safeguards of a democratic society, and that the media must be free to comment on court proceedings to ensure public scrutiny is brought to bear.

Christie Blatchford can be contacted at cblatchford@nationalpost.com .