National Post - May 30, 2002

In this court, it's 'do as I say, not as I do': Judge running child protection case with an iron hand

Christie Blatchford

ST. THOMAS, Ont. - For three days now, Ontario Court Justice Eleanor Schnall has made a huge stink about the time being squandered in her courtroom, where a high-profile child-protection hearing is underway. What a pity, then, that the 55-year-old judge, who lives just 25 kilometres away in London, Ont., appears unable either to get to the St. Thomas courthouse on time or keep to her own schedule. Yesterday, Justice Schnall was 40 minutes late arriving in court. She apologized, offered no explanation except to say, "It's not my preference", and then criticized the lawyers for the parents at the centre of the case for filing "defective" documents that caused a brief delay and what she termed "a sacrifice in court time." The day before, according to what her clerk told lawyers waiting to start, the judge arrived at the courthouse just five minutes late, but then did not actually appear for another 90 minutes, at which point she explained that she had been working on a critical decision involving the sweeping publication ban she subsequently imposed on the proceedings.

The day before that, Justice Schnall held a pre-trial conference in her chambers, arrived in the courtroom only at 12.25 p.m. and proceeded to tear a strip off Toronto lawyer Tony Wong, who represented seven media organizations opposing the parents' motion for the publication ban. The judge harshly criticized him for obliging her to "sacrifice court time" and for "hijacking" the proceedings, and repeatedly pronounced herself "dismayed" at the delay caused by having to hear arguments about the media's constitutional right to freedom of expression. The berating completed, the judge then glanced to the wall on her left, and with a cheerful smile said, "I just looked at the clock and saw it's almost 1 p.m., when the court breaks for lunch .... I see no reason to change that," and promptly adjourned until 2.15 p.m. But she was then 10 minutes late returning, as often she is.

In the courts, this is called "judge time" - where everyone but the hapless citizens involved understands that 15-minute breaks routinely will be doubled in length and that an extra 20 minutes is invariably added to the purported hour for lunch. It's common. What isn't is that a judge who is less than punctual herself castigates the other players in the case for delaying the show. Indeed, if there is a theme emerging from the tiny second-floor courtroom where Justice Schnall runs the show with an iron hand, it is arguably, "Do as I say, not as I do." In the few days the case has been going on, the judge has ordered a reporter to stop chewing gum, congratulated the participants she kept waiting while she worked on her publication ban decision for not engaging in "boisterousness," and patronizingly spelled "voir dire" - a French term for a trial within a trial where the admissibility of evidence is determined - for an audience comprised solely of lawyers and court reporters already well familiar with the phrase.

The publication ban she imposed inarguably dictates the narrow scope of reporting which will be allowed throughout the trial - she has effectively ruled in advance that virtually all the key evidence is potentially inadmissible and thus not publishable and has prohibited even artists' sketches of any witnesses - and yet Justice Schnall at one point said of herself, with clear satisfaction, "I absolutely do not want to be seen as to be telling the media how to write." In the next breath, she warned that if the limited reporting she is allowing becomes too detailed, "I'll draw the strings even more tightly" around the already stiff ban.

In the space of a few hours that day, she first said that reporters would be able to publish the lawyers' opening statements, which she said she expected would be reasonably full in laying out what the issues in the case are because "the public should know" - and then proceeded to warn the lawyers that their statements must be brief and stay away from the very evidence which is the only thing that explains those issues. The following morning, after the four lawyers had delivered opening remarks that were skeletal in their brevity, Justice Schnall told the lawyers that if they had felt "constrained" by her earlier directions, they should not have.

At the heart of the case, which involves the controversial seizing last summer by a local children's aid society of seven youngsters from their fundamentalist Christian home in the nearby southwestern Ontario town of Aylmer, is what caused the society to take the drastic action and whether its workers trampled over the family's Charter rights to security of the person and against unreasonable detention and questioning. In the balance hangs not only the question of whether the family should be supervised by society workers, but also how child-protection workers can do their jobs - whether, for instance, they should be able to question suspected abuse victims without first obtaining consent from their suspected abusers.

Yesterday, the society's central witness, the worker who had carriage of the case when the children were apprehended, kicking and crying, last July 4, finally took the witness stand. But the worker's evidence about the society's rationale - and there is one - can't be reported, and she cannot be identified, photographed or drawn. All the press can report is that the parents, members of the Church of God Restoration, have changed their evidence about how they disciplined the youngsters before they were temporarily apprehended by the society. The change, described as "profound" by Justice Schnall, emerged when lawyers for the couple, told the court yesterday their clients now do not agree to two lines contained in an affidavit signed and sworn by the father as being true. Similar information was repeated in what's called the "answer" in civil proceedings, a document which is akin to a statement of defence. Because this document was signed only by the couple's lawyers, and not by the parents themselves, the judge ruled it was defective, and ordered that it be fully translated into the "low German" dialect which is the couple's first language, and then signed by them. When the translation was complete, Michael Menear, who represents the father, announced that the parents now dispute two key admissions in the document. Mr. Menear, however, agreed that "my client swore it was true, so he's got some explaining to do", and the document was ultimately admitted, with the father to be questioned about it when he testifies.

In general, the right of the press to report on court proceedings, and indeed the court's independent obligation to protect it, has been confirmed by the Supreme Court of Canada. But in child-protection cases, the right is also backed by statute: The provincial Child and Family Services Act, the legislation which governs such hearings, provides that the press has what's called a presumptive right to report on proceedings, subject only to the usual proviso that the involved children and their parents are not identified unless the judge is also persuaded that publication will cause "emotional harm" to the children. The ability of the press to fully cover these hearings is rendered additionally important because members of the public are routinely barred from being in the courtroom, as they are here. Child-protection hearings are, in other words, one of the few instances where reporters are literally the surrogate of the public. But Justice Schnall appeared dubious about the media's right. At one early point in the hearing, she told Mr. Wong, "What I would suggest is this ... convince me there is a presumptive right the media should be in."

It is perhaps instructive to note that Justice Schnall, who was appointed to the bench in 1991 under the then-New Democratic Party Ontario government, was featured in a story in the London Free Press almost exactly a year ago. The story was about the supposed elevating effect of women judges upon the justice system, and Justice Schnall was quoted as saying that female judges were "more just because of our experience of being overtly or indirectly discriminated against." The story noted that she had once taught at the University of Western Ontario law school classes on the public perception of the legal profession, sex discrimination, and the legal process.

How amusing, then, that yesterday she should have struggled to figure out a simple mathematical question, the very sort with which women, in the nasty stereotypes, must wrestle. The judge was trying to figure out when court should return from lunch. It was then 12.15 p.m.; she wanted to take a break of an hour and 45 minutes so the lawyers would have time to fix the defective document and grab a snack. Justice Schnall had to ask her clerk what time that meant court should resume. "Uh, two o'clock?" said the surprised clerk. The judge was still 15 minutes late returning.