Evidence focuses on agency's action in children's seizure
Lawyers argue the rights of parents violated in corporal punishment case
June 1, 2002
It was in her opening statement early last week that lawyer Valerie Wise warned that if the action of a local children's aid society last summer in snatching seven children from their fundamentalist Christian home was remotely ordinary conduct for such agencies, Canadians "all have great need for concern."
Ms. Wise represents the mother of the youngsters, who to much media publicity were abruptly apprehended by the Child and Family Services of St. Thomas and Elgin County and taken temporarily into foster care, at a hearing here that will determine whether the children are in need of protection.
In her low-key way, Ms. Wise thundered that just as the courts have imposed reasonable limits upon how police officers can go about their jobs, so child care workers ought to be subject to similar controls.
"We have to guard," she said then, "against abuse of power by all state actors."
But as ringing as the lawyer's words were a few days ago, it is only now, as the facts of the actual apprehension slowly unfold in the courtroom, that it is beginning to become clear that Ms. Wise was not merely talking through her hat.
Ms. Wise and lawyer Michael Menear, who represents the father of the family, take the position that society workers and the local police officers who accompanied them so ran roughshod over the family's Charter rights -- to security of the person and against unreasonable search and seizure -- on that July afternoon last year that virtually none of the evidence that was gathered should be deemed admissible here.
But what is also becoming apparent, as hinted at by the two lawyers in their opening remarks, is the paucity of that evidence and arguably even the tenuous nature of the original grounds upon which the agency moved so harshly.
Alas, because of the sweeping publication ban clamped upon the proceedings by Ontario Court Justice Eleanor Schnall, none of the dramatic testimony now being heard can be publicly reported.
In the witness stand yesterday for the second consecutive day was the young social worker who had carriage of the case when the children were wrenched from the family home in the nearby town of Aylmer, where their parents are members of the Church of God Restoration, an offshoot of the Church of God originally founded in 1881 by Daniel S. Warner.
Church members dress like the traditional Mennonites of whom there are living in this part of southwestern Ontario as many as 30,000 at any given time and with whom they share the use of a dialect called "low German," which is a combination of Dutch, German and Russian-Prussian.
So alarmed were other congregants by what happened last July 4 that the women of the Aylmer church, fearing similar state action, fled Canada with their children shortly thereafter. They are all believed to have since returned.
In a general way, the Church of God congregants are considered more strict than Mennonites, and believe in faith healing, corporal punishment or spanking with a rod to correct disobedient or "carnal" children, and that the rule of God must always trump the rule of man.
To one degree or another, all these are issues at this hearing, which at bottom pits the right of a child-protection agency to conduct abuse investigations against the rights of parents who, like the religious couple in this case, may be distrustful of government or whose beliefs are at odds with mainstream norms and practices and the laws and rules that govern them.
Alfred Mamo, for instance, the lawyer who represents the St. Thomas and Elgin County agency, told the court this week that among the significant legal questions are whether workers have the right to ask questions of parents under investigation, whether parents have the right to remain silent -- and, if they choose not to speak, can workers reasonably draw "adverse inferences" from their silence? -- and whether workers can question children without their parents' permission.
Mr. Mamo, who joined a lawyer for the media in strongly opposing the publication ban and asking the judge to allow light to shine upon the hearing by keeping it open, said his client's position is that "the steps taken by the agency were ordinary and commonplace," that all the regulations and laws were followed, and that workers must be able to question suspected abuse victims without having to obtain consent from their suspected abusers.
In the balance, he said, hangs the ability of child care workers to do their jobs and protect the most vulnerable citizens.
Mr. Mamo maintains the seven youngsters, aged six to 15, are "being hit by objects" by their parents, are therefore in need of protection, and should be subject to a year-long supervision order by the agency.
Ms. Wise and Mr. Menear, on the other hand, say the children were never at any real risk whatsoever and that the agency not only had "no warrant" to seize the youngsters, it also had "no reasonable and probable grounds" to suspect they were ever being harmed in the first place.
It is precisely in this critical area that the social worker, who was just 27 years old and only two months into her first full-time job in the field when she moved to seize the children, was cross-examined yesterday.
Within the confines of the massive publication ban, all that can be reported is that what she was grilled about by Mr. Menear was the nature and quality of the information she had about the family, how she came to believe apprehension was necessary, and what steps she took that culminated with the youngsters being dragged, kicking and screaming, from congregants' arms by local police -- a scene that was widely reported and broadcast when it happened.
Suffice to say, however, that the cross-examination, as yet incomplete, was aggressive, with the worker being challenged about both her expertise and her decisions by Mr. Menear at almost every turn.
By deciding from the get-go to hold almost all the hearing in what's called "voir dire" -- a French term for a trial within a trial -- the judge has effectively muzzled the press and turned the hearing into a secret proceeding.
Voir dires are usually held to determine the admissibility of a contested piece of evidence -- such as a police statement or confession that may not have been given voluntarily, or weapons or drugs that may have been obtained in an illegal search -- and that may subsequently be thrown out.
Most common in jury trials in the criminal courts, these mini-trials are not reportable by the press until the evidence is completed and the jury sequestered, so as not to prejudice the jurors hearing the case.
The assumption inherent in the rationale for voir dires in jury trials is that while a learned judge is deemed capable of disregarding evidence he or she finds was improperly obtained and that is therefore not properly admissible against the accused, an ordinary citizen, acting as a juror, would struggle not to consider it in deliberations.
But Judge Schnall, in giving her reasons for deeming almost all this case to be in voir dire, said that virtually all the evidence here is contested, and that allowing the media to report the details "would do little to advance" the public's knowledge and would cause the children "emotional harm."
She prohibited publishing "any evidence taken on voir dire" and said "the hearing will proceed on a voir dire basis until all the impugned evidence is heard." At that point, Judge Schnall said last week, she will "fine-tune" the publication ban.
It was the parents who successfully sought to keep the hearing secret, a move which, given that they are alleged to have both invited and courted the media when their children were taken from them, now gives rise to the reasonable inference that they may have something to fear from the facts of the case becoming public.
Yet as their lawyers suggested off the top, they may be the victims of an over-zealous and heavy-handed public agency.
Christie Blatchford can be contacted at email@example.com