June 8, 2002

Best witnesses were not in court
They were raising their voices in song on courthouse lawn

Christie Blatchford
National Post

ST. THOMAS, Ont. - Inside the courthouse, Madam Justice Eleanor Schnall dithered away much of the day going to and fro about the vagaries of protecting the family at the centre of a controversial and near-secret child-protection hearing from the glare of media attention and shielding them from public identification.

Outside on the front lawn, however, the family's friends and fellow congregants from the Church of God Restoration in the nearby town of Aylmer gathered beneath a spreading maple tree to stand in their peaceful support.

Near a simple banner that borrowed a line from the Canadian national anthem -- "God keep our land glorious and free," it read -- about 75 adults and their array of astonishingly beautiful children quietly talked and smiled at and sweetly flirted with reporters for about a half hour.

Then, the children were artfully grouped beneath the banner and, bursting with excitement, eyes huge and cheeks flushed fire-engine red, led in song for a time, Sunday School hymns to which they knew all the words and matching gestures. Their favourite, judging by the gleeful way they shouted it out, was one they know as the Bible song; in each verse, they spelled out the word of the good book and then got to shriek in unison, "Bible!"

The contrasting scenes comprise a powerful illustration of the chasm that exists between the arguably preposterous nature of Judge Schnall's swelling publication ban, imposed last week and further hardened just two days ago, and reality.

The primary purpose of the ban, as the judge said again yesterday, is to protect the seven youngsters whose fate hangs in the balance here from "emotional harm," which she has always maintained is the natural result of ordinary media coverage of the hearing.

In fact, in re-affirming the new provisions to the ban yesterday, Judge Schnall said that if the press were allowed even to report that the parents, who sit in court in the front row every day, were distressed by the evidence, "the children are going to be distressed."

So uniquely "readily identifiable" are these children, she said, that reporting even their ages -- their names and their parents' names are already protected by an ordinary statutory ban that was never contested by the media -- constitutes a breach of her sweeping order.

But, as was abundantly clear from the outing on the courthouse lawn, the children and their parents live within the cloistered confines of their church, go to a church school on the same property and are no more exposed to mainstream media than they are, the lucky beggars, to Britney Spears music videos.

And more than that, among the little ones yesterday, for instance, were some of the seven children's schoolmates, dressed in their uniforms of oxford blue shirts and navy pants for the boys and long navy dresses for the girls, and among the adults was at least one woman, a pastor's wife, who one day last week babysat them after school while their parents were at the hearing.

And yesterday's lunchtime outing was organized and recently announced at the church by the pastor, with congregants invited to come, the group's exquisitely courteous young spokesman, 17-year-old Benjamin Tovstiga, said shyly.

In other words, everyone who is important in this family's small sphere already knows very well who the involved children are, and some congregants were even at their house when local police officers and social workers from the Child and Family Services of St. Thomas and Elgin County swooped in last July 4 to seize the youngsters and take them temporarily into foster care.

Indirectly, the little rally also went some distance to address the larger question at the heart of this case.

The society is seeking to have the seven children declared in need of protection and then subject to a year-long supervision order that would allow them to stay with their parents but under the watchful eye of agency workers. The parents and the children, represented here by three different lawyers, oppose it.

The central issue is spanking, with the society and the Church of God Restoration at philosophical odds.

Corporal punishment, as its executive director Steve Bailey said yesterday -- his testimony curiously and abruptly volunteered as reportable by the judge after she worried it like a dog on a bone for a time -- "is not a philosophy we would support in the community."

The Church of God Restoration, on the other hand, is long on the public record as subscribing to the use of the Biblical rod, judiciously used, in correcting and disciplining children.

Those youngsters who were on the lawn yesterday provided a singularly powerful advertisement for the merits of their parents' beliefs.

Under the warm June sun, they were spectacularly well-behaved but not in the slightest cowed or subdued.

In the main, they sat quietly, but they were still indisputably full of fun and mischief.

Two little girls rough-housed and accidentally knocked down a toddler, to predictable wailing result; another group of young girls gathered around an infant in a carriage and poked at and played with her; two boys did impromptu cartwheels; another built a stick house; two boys tried to climb a pole before their mom told them to stop, and when I sat down beside a couple of darling little guys and threw a few blades of grass at them, one of them grinned and proceeded to eat some, daring me with his eyes to do the same.

And all of them -- whether infant, toddler, adolescent or all the stages in between -- veritably glowed with robust good health and contentment. There probably isn't a parent in the land who wouldn't burst with pride to have such children.

In the courtroom, all was rather more normal, or what passes for it in these judicial parts.

Judge Schnall's day began, as it has before, with her facing a media lawyer, this time, Paul Schabas, who represented four organizations -- the National Post, Toronto Star, The Canadian Press and the Hamilton Spectator.

The day before, when the judge had toughened her ban even to preclude the reporting of the parents' reactions to the evidence they hear in court, she ended by saying that if the media lawyer wished to appear to get his objections on the record, she supposed she would give him 10 minutes: Thus Mr. Schabas' presence.

He had no sooner identified himself than the judge snapped, "We're not going to spend any more time listening to media submissions!" When he protested he thought himself invited, she said he was mistaken. When, once, they spoke simultaneously, she said, "Is it the practice where you come from to interrupt the judge?" When Mr. Schabas persisted, she invited him to sit and wait while the scheduled witness took the stand.

When the witness's evidence-in-chief was complete, the judge briefly recessed, and when she returned, it was to say, "I checked with the court reporter and the court clerk ... I must have been having a senior moment ... I did indicate yesterday I would give 10 minutes [to a media lawyer] ... I apologize to you for this morning's interaction."

About 90 minutes later, the cross-examination of the witness now complete, Judge Schnall invited Mr. Schabas to speak.

He did, and for 13 minutes, argued that she had "overreacted" in toughening the ban and was "punishing the public's right to know" about the case; called her order "unreasonable, unnecessary and in conflict with the Supreme Court of Canada's clear statement that such orders [bans] are to be framed as narrowly as possible," noted that "the heart of publicity is about scrutinizing our public officers and our courts" and concluded that the effect of her various bans is "completely negating freedom of expression" and that they amount to "a complete prohibition."

The judge took a recess, and came back to turn down Mr. Schabas' request she reconsider the new provisions of her ban.

She took 17 minutes to do it.

Later, out of the blue, she suddenly wondered aloud if she should revisit the same ban in order to allow Mr. Bailey to be named and his testimony reported because he was discussing general policies and thus couldn't cause the children any emotional harm. Then she decided no. Then she wondered aloud again, and took a recess to think about it. And when she came back, she said yes, she would lift it for Mr. Bailey.

Alas, in comparison to the day's other events, and the compelling faces of the children on the lawn, his evidence rather paled.

Christie Blatchford can be contacted at cblatchford@nationalpost.com