Jul. 3, 2002. 01:00 AM

Rights of couple violated, court told
Mother's lawyer urges end to spanking case

By Cal Millar
STAFF REPORTER

ST. THOMAS - Child-protection workers and police violated the Charter rights of an Aylmer couple a year ago when they entered their home without a warrant and seized their seven children, a provincial court was told yesterday.

Valerie Wise, a lawyer representing the mother, said it's impossible to appreciate the enormity of emotion the couple went through while their children were held 22 days by the Family and Children's Services of St. Thomas and Elgin County.

Although the family are members of the Church of God Restoration - an international fundamentalist religious group that believes in using corporal punishment to discipline children - Wise said she's not arguing the case on the grounds of religious freedom and seeking a religious exemption for members of the congregation to be able to spank their children.

She said her concern centres on the cavalier approach taken by the children's aid workers and on how they abused their power when they entered the family's home on July 4, 2001, without a warrant to question and then apprehend the children.

Wise, who was making her final submissions to the court on a Charter challenge in the case, said social workers may only apprehend children without a warrant when they are in immediate danger, and their health and safety are at stake.

The application is being made in the course of a child-protection hearing to decide whether the children are in need of continued children's aid supervision for one year.

Madam Justice Eleanor Schnall has been holding a voir dire - a trial within a trial - to determine if the parents' rights guaranteed under the Charter of Rights and Freedoms have been violated and if any evidence gathered by authorities shouldn't be used against the couple.

Wise argued that evidence taken by agency investigators was inadmissible.

"All the evidence obtained was as a result of breaches to rights," she said in asking Schnall to stay the proceedings.

"It was not necessary to apprehend the children from the house on July 4, let alone to apprehend them as forcefully as they were apprehended," she said. "It was both unlawful and unconstitutional to take them without a warrant."

Evidence presented over 18 days of testimony shows Shelley West, a child-welfare worker, contacted Andre Reymer, Aylmer's deputy police chief, when the children's mother refused to allow her into the house because her husband wasn't at home.

West, who had worked for family and children's services for two months, was later allowed to examine the children and decided to seize them.

File was closed, so there was no legal reason to visit family

Wise said West didn't find any marks on the children but had been told the parents spank them with a stick, belt, fly swatter or electrical cord.

Although there was no evidence of bruises, cuts, welts or abrasions and no indication of injury, Wise said West coded the case as a priority and ordered the children's removal.

"It was an overreaction," Wise told the court.

She said a child-protection worker who believes on reasonable and probable grounds that a child is in danger may, without a warrant, take a child to a safe place.

The Aylmer children were not in any danger, and children's aid officials didn't comply with governing statutes and violated the rights of the parents, she said.

Wise noted that West wasn't even at the house in response to a complaint, but had come to close off a file that was opened in October, 2000, when one of the children received medical treatment for a burn.

During a series of follow-up visits, a worker observed a mark on one of the children and had some discussion about the methods used by the family for discipline.

The worker on the case determined there was no need for the children to be placed in protection and there were no other complaints about the family before West went to the house in June, 2000, to close the file, Wise said.

She said the family refused to meet with the worker in June because they were going to Ohio, and when West returned on July 4, the mother didn't want to speak with her without her husband being present.

There was concern in the church community, Wise said, because family and children's services had taken action against another couple for using corporal punishment.

Since the file was officially closed, Wise said, West had no legal reason to visit the family and examine the children.

"It was a complete fishing expedition," she said, suggesting the only reason she took interest in the file was because it involved another family from the Church of God.

"Guilt by association is wrong and dangerous," Wise said. "That's a scary proposition in a free society where we enjoy freedom of association and freedom of religion."

Lawyers for the children and family and children's services will make final submissions on the Charter arguments when the hearing resumes July 18.