Jun. 4, 2002. 01:00 AM Media fight gag order at spanking trial
Judge bans reporting of testimony

Kate Harries
ONTARIO REPORTER

ST. THOMAS — The Star and several other media outlets are appealing a publication ban that prohibits the reporting of testimony in what has become known as the "spanking" case, now in its second week.

A sweeping publication ban imposed by Madam Justice Eleanor Schnall sets a dangerous precedent, said lawyer Tony Wong, who filed the appeal yesterday.

"It's denying the public access to a hearing where the interests of the most vulnerable in society are being protected," Wong said.

"This is exactly the kind of hearing where the frankest and fullest public scrutiny is necessary."

Seven children, now aged 7 to 15, were seized by police and social workers last July 4 because of corporal punishment used by their fundamentalist Christian parents.

The parents sought the ban because they claim disclosure of the evidence would cause emotional harm to their children. Their request was opposed by the Family and Children's Services of St. Thomas and Elgin, whose lawyer argued that the best interests of these and other children would be served by a full public discussion of the issues.

Schnall decided on an unusual ban that prohibits reporting, except in general terms, of evidence she's hearing in a voir dire, or trial within a trial. She intends to decide at the end of the trial what is admissible and what can be reported.

But Schnall exceeded her authority under the Child and Family Services Act, according to court documents filed by The Star, The National Post, Canadian Press, the Hamilton Spectator, the London Free Press, the Canadian Broadcasting Corp. and the Kitchener-Waterloo Record.

Protecting children from emotional harm is the only purpose for a publication ban under the act, but no evidence was presented to show that they would be hurt. The act prohibits identifying the children, bans the public from family court, but specifically provides for media coverage

"The media is very conscious and respectful of the need to protect the children," Wong said.

The case is important because of a recent Ontario Court of Appeal decision that upheld a Criminal Code provision that allows parents to use "reasonable force" in disciplining their children, he said.

The appeal court found that the use of objects for corporal punishment is not appropriate, Wong noted.

That runs directly against the belief of the parents, members of the Aylmer Church of God, that it's preferable to use an object for discipline, rather than the hand, which they feel is an instrument of love.

The media lawyers are seeking a hearing date as soon as possible, late June or early July.