Jun. 28, 2002. 10:36 PM

Publication ban lifted in spanking case
Judge was 'not at liberty to impose such a ban based on speculation,' court finds

LONDON, Ont. (CP) - A sweeping publication ban that kept secret the details about two fundamentalist Christian parents and their fight to retain custody of their seven children has been lifted.

After listening to submissions from lawyers for media outlets, the children and the child-welfare agency that removed them from their homes last summer, Superior Court Justice Thomas Granger wasted no time Friday in lifting a ban he said had no business being in place.

"In my view, the required evidentiary foundation - i.e., would there be emotional harm to the children to support a publication ban - is lacking in this case," Granger said after just a half-hour of deliberation.

"A trial judge is not at liberty to impose such a ban based on speculation."

Ontario Court Justice Eleanor Schnall had imposed broad, elaborate publication bans that forbade media outlets from disclosing details of the so-called "spanking case" unfolding in St. Thomas.

The case centres on seven children who were forcibly removed from their Aylmer, Ont., home last summer by child welfare workers amid fears they were being subjected to spankings with a paddle.

Their parents, members of an international religious group called the Church of God, refused to guarantee that they wouldn't spank the children because corporal punishment is condoned in the Bible.

With the bans lifted, media outlets are free to report on testimony given in the case, although the identities of the children and their parents are still withheld by statute.

The St. Thomas court has heard the parents testify they hit their children with belts, sticks, electrical cords, a clothes hanger and a broken metal fly swatter that some of their kids knew only as a ``spanking stick."

The mother and father said they would hit their children when they misbehaved but that it didn't occur that often.

Videotape evidence of interviews of the children presented at the trial showed the children admitted to regular occurrences of spanking. The children said that either them, or their siblings were spanked regularly.

Paul Schabas, who argued on behalf of several media outlets, including The Canadian Press, the National Post, the Toronto Star, the Hamilton Spectator, the London Free Press and the CBC, said the ban likely caused more damage than it prevented.

"It wouldn't be the first time that kind of thing has happened," Schabas said after the ruling.

"There have been other cases where drawing attention to a case by seeking a ban has actually drawn more attention to the case. Sometimes fighting attention leads to more attention."

Earlier Friday, Schabas had argued the bans should be lifted because they violated the public's right to timely news.

"In imposing the bans, she has done more harm than good; they create more questions than answers about what's going on behind closed doors in our courts," Schabas told Granger.

"Justice Schnall's action was utterly unnecessary, unjustified, unsupportable and unconstitutional and should be set aside."

The bans, first imposed on the first day of the custody hearing and amended and expanded several times since, cover virtually all the evidence that has been heard since the proceedings began May 27 in nearby St. Thomas.

Donald Kilpatrick, the lawyer representing the children, tried to argue that their identities had already been compromised, requiring a sweeping and comprehensive ban in order to prevent further damage.

Kilpatrick said earlier media reports identifying the family's neighbours, not to mention a Web site that briefly posted their photos in the days following the removal of the children, mean anyone can find out who they are.

"It doesn't make sense to say, `Well, the cat's out of the bag, so what's the harm of telling the whole story,'x " Kilpatrick argued. "The harm, of course, is the harm to the children."

While the children have been returned to the family, the St. Thomas trial is to determine whether they are in danger of physical abuse while in their parents' custody and if so, what measures are necessary to ensure their safety, including being removed permanently into the custody of Family and Children's Services of St. Thomas and Elgin.

Alfred Mamo, who represents Family and Children's Services and also argued against the ban, admitted there's likely to be some tension in the courtroom in St. Thomas when the case resumes next week.

"I think Justice Granger's decision is very sound in law and while Justice Schnall obviously tried to do what she thought was in the best interests of the children, I don't think she had the evidence on which she could have acted."

"I think there's probably going to be a little bit of tension for the first half hour in terms of trying to deal with the dynamics of this case," he said.

"Once we get into the arguments on the charter, we're going to focus on the task at hand."

Schnall was one of several judges appointed to the Ontario Court in 1990 by then-attorney general Howard Hampton. Currently based at the London courthouse, she has spent the bulk of her career on the bench in southwestern Ontario.