The ban in question

Tuesday, June 11, 2002, Page A20

It would be perverse in the extreme to hold a child-protection hearing that brought serious harm to the children whose protection was at issue. In declaring that media reporting of a hearing in Southwestern Ontario would cause emotional harm to the children involved, Judge Eleanor Schnall has raised an important concern.

But by imposing a near-complete publication ban on a protection hearing in the Ontario Court in St. Thomas, near London, Judge Schnall has insulated her courtroom from public scrutiny. It would be equally perverse to hold a trial which, because it was out of public view, could not be said for certain -- not by the Canadian public, anyway -- to have protected those children.

Publication bans do have a way of focusing the mind on first principles. Those principles sometimes clash, and concentrating too much on one may mean that another gets short shrift. So it's worthwhile to review Judge Schnall's argument, set against other important Canadian values.

Some background: The seven children were removed temporarily from their families last summer over allegations that they had been punished by being struck with objects. Their parents belong to a church whose members believe the Bible demands such stern methods of corporal punishment. The national media broadcast unforgettable images of protection workers dragging the children from their homes. The issue now is whether a local child-protection agency should be granted a continuing role in supervising the family.

The problem in reviewing the publication ban's merits is that Judge Schnall did not hear evidence about the potential for harm to the children. She did not spell out the danger. Is it the pain of seeing personal information in cold, hard print? Is it the shame of hearing school chums discuss their personal business?

The children's identity is protected by statute and cannot be revealed. The family's story has been publicly circulated by the family and their church, through news conferences and a Web site. What reason is there to believe that, after all that publicity, reporting of court proceedings would pose a real risk -- not to some hypothetical children, but to these particular ones, in the actual circumstances in which they live, in a small-town faith community that big-city media barely penetrate? And why has Judge Schnall extended her initial ban to include the reporting of displays of emotion within the court?

She seems to be relying on speculation. Instead, she should be asking: Is the ban necessary?

Nearly a decade ago, the Supreme Court of Canada said necessity is the key. For a discretionary ban to be considered necessary, it must be based on a real and substantial risk; it must not be merely speculative. Even then, it must be drawn as narrowly as possible.

Although it is old news by now that free speech is protected by the Constitution, Judge Schnall has suggested to media lawyers attempting to argue for openness that they are wasting the court's time. In broadening an already sweeping ban this week, she permitted a lawyer a little more than 10 minutes to make his arguments, and then only after being reminded by a court official that she had promised a day earlier to do so.

Judge Schnall, it seems, puts little stock in the public's right to know.