June 8, 2002

A publication ban that makes no sense

Editorial
National Post

Last summer, social workers and police in the Ontario community of Aylmer seized seven children, ages six to 14, from their parents, adherents to the fundamentalist Church of God Restoration. Scenes of the screaming children being forcibly apprehended filled national news reports. The children returned home three weeks later.

The parents, who admit they use a switch to spank their children, and Family and Children's Services of St. Thomas and Elgin County, are now in Ontario provincial court for a child-protection hearing. Neither side is arguing for the removal of the children again or for their placement in foster care. But the children's aid society is seeking the right to closely monitor the parents' treatment of the children for one year. The parents, along with a government lawyer representing the children, contend such "protective supervision" is unnecessary, because the children are not in danger. The case could have far-reaching implications for the way children's social workers go about their job, not just in Ontario, but across the country.

However, Canadians will have a hard time judging the merits of the case for themselves. Justice Eleanor Schnall has imposed a publication ban on evidence so tight that journalists are not permitted to publish witnesses' names, and court artists are forbidden from sketching expert witnesses.

The decision appears entirely unjustified -- which is why the Post and six other media outlets have decided to appeal the order in Ontario Superior Court. It is not as if the judge's ban does anything to protect the children: Ontario's Children and Family Services Act already shields the identity of children in child-protection hearings by forbidding the publication of their names or those of their parents. And because members of the public are typically barred from such hearings, the act acknowledges a "presumptive right" of the press otherwise to report on the proceedings as the public's surrogate. The presiding judge generally issues a broader publication order only if he or she believes one is necessary to shield the children involved from "emotional harm."

While the parents' lawyers asserted such harm would result from the children reading or hearing about the proceedings, they offered no persuasive evidence to back up the claim. Given the circumstances, it is doubtful they have any: The children, who live a cloistered life with other congregants of their faith, have no access to television, radio, newspapers or the Internet, and are unlikely to see any coverage.

Nonetheless, Justice Schnall acceded to the parents' request. Virtually all evidence is being heard in voir dire, a sort of trial within a trial that is typically used in criminal cases to evaluate the admissibility of evidence. Voir dires are secret, and by insisting on hearing all evidence in this way, Justice Schnall has made it impossible for reporters to tell the public anything about the facts of the case until the hearing is over -- if then.

On Thursday, Justice Schnall ratcheted up the ban one step further, forbidding reporters -- whom she frequently berates from the bench -- from writing even about the "demeanour" and "tone" of proceedings. Now the expressions on the parents' faces or the inflection in the voice of a social worker witness is out of bounds, too.

Even if this were an obscure case without significant policy ramifications, we would oppose the publication ban on principle. The fact that this case is so important heightens our concern: It goes straight to the issue of who has the final say over children in our society, the government or parents -- and it is certain to become a decisive precedent no matter which way it is decided. Yet Canadians may never know whether Justice Schnall's disposition of the case is correct because it is likely the public will never be granted access to the evidence.

Justice Schnall has said she is concerned that media reporting of the case will bring the administration of justice into disrepute. Instead, it is her over-broad publication ban that threatens the public's confidence in the justice system. Secret trials went out in the 17th-century, and reintroducing their spirit now will do nothing to raise the public's opinion of an arrogant judiciary.