Parents urge media ban be lifted
Puzzled by reversal, judge responds by tightening gag order
Wednesday, June 12, 2002
Fundamentalist Christian supporters of the family at the centre of the hearing held a rally on Friday that included prayers and hymn singing outside the courthouse in St. Thomas, Ont.
ST. THOMAS, Ont. - The parents at the centre of a controversial child-protection hearing yesterday abruptly reversed themselves and asked the presiding Ontario Court judge to lift her sweeping gag order on media reporting of the case.
The request came from their lawyers as Judge Eleanor Schnall was confronted with another alleged breach of her ban, which effectively prohibits any reporting of the evidence in the case, and clearly left her surprised and peeved.
"I can't believe the parents are now saying, 'Yes, let's lift the ban'," Judge Schnall snapped at one point.
Michael Menear, who represents the father of the seven children who were snatched from their family home in the nearby town of Aylmer, Ont., and temporarily placed into foster care last summer, told the judge that since "misinformation and innuendo" have rushed in to fill the factual void created by her wide-ranging order, "We support the lifting of the ban."
He was joined by lawyer Valerie Wise, who represents the youngsters' mother.
But Judge Schnall found preposterous the notion that because the "ban is not working," it should be tossed. To do so would be analagous, she said, to saying that "because people commit crimes, let's abolish the Criminal Code."
She pronounced herself flummoxed by the sudden "180-degree shift" in the parents' position, and instead of lifting the ban, effectively tightened it further by forbidding reporters even from using information that has long been in the public domain if it also happens to become evidence heard here.
It was the second time since she issued her original order that she has enlarged it.
In addition to virtually all the evidence, Judge Schnall has banned pictures and courtroom sketches of all witnesses, limited when reporters can identify these witnesses, prohibited the reporting of so-called "demeanour evidence" -- or descriptions of the way the parents, who are in court every day, react to testimony about the day their world turned upside down -- and placed a thus far permanent prohibition upon identifying the most critical witness in the case, the young social worker who made the decision to apprehend the youngsters last July 4.
It was just two weeks ago, when the hearing began, that Mr. Menear and Ms. Wise first asked the judge to impose the extraordinary ban in the first place, saying that the usual statutory prohibition against publicly identifying the children and their parents -- a standard feature of child-protection hearings that was never being contested by media lawyers -- was not enough in this case.
They were joined at that time by Donald Kilpatrick, from the provincial Office of the Children's Lawyer, who represents the youngsters and who still supports the judge's huge and multi-faceted order.
It was Mr. Kilpatrick who first brought to the judge's attention the alleged breach of the ban by London Free Press reporter Jonathan Sher, whose story in his newspaper yesterday regurgitated information he had first uncovered, and reported, just days after the seven children were taken by police and social workers from their home.
The same information has since become evidence at the hearing, which, because of an earlier decision by Judge Schnall, is being conducted first in "voir dire," a mini trial that is usually reserved for criminal proceedings to protect juries from hearing damaging information against an accused that may later be ruled inadmissible.
Because Ms. Wise argues that the parents' Charter rights to security of the person, and against unreasonable search and seizure, were trampled by social workers and has urged the judge to exclude whatever evidence they obtained, there is the potential that none of the key evidence here will ever become public.
Mr. Kilpatrick said that because the old, long-published facts in Mr. Sher's story were now part of the evidence heard in voir dire, this information was now, like all the other evidence, forbidden fruit. As a remedy, he asked the judge to give Mr. Sher the boot from the courtroom.
But Free Press lawyer Renato Gasparatto argued that Judge Schnall had no jurisdiction to punish Mr. Sher for using information he had already reported nine times in previous stories about the case, and said if this standard were evenly applied to other media coverage, virtually every news outlet would be deemed in technical breach.
For Mr. Sher to be excluded, Mr. Gasparatto said, would mean the judge would have to find his very presence in the courtroom would cause the youngsters "emotional harm and there's no evidence of that. It's ludicrous, Your Honour."
Alfred Mamo, the lawyer for the aid society, Child and Family Services of St. Thomas and Elgin County, vigorously opposed the original publication ban and described Mr. Kilpatrick's suggested remedy yesterday as "without any merit in law and devoid of any common sense.... What Mr. Kilpatrick is asking the court to do is effectively muzzle the media completely. This information has been in the public domain for eight months," he sputtered furiously. "This is not a controversial fact."
Mr. Mamo was then sharply rapped on the knuckles by the judge, who told him to remember it is "the children's aid society who's your client and not the London Free Press. Why the children's aid is standing up to protect the livelihood of a Free Press reporter...."
Judge Schnall then proceeded to take a few shots at Mr. Menear and Ms. Wise, reminding them of their earlier "compelling arguments" in favour of the ban and wondering aloud if the arguments they made yesterday were "self-serving on behalf of the parents" and even appearing to find the parents' own motives dubious when she said, "I don't even know if they [the parents' decisions] were made with the interests of the children at heart or in mind."
It was when she appeared poised to kick Mr. Sher from the courtroom, deeming his story "a breach of the order, straight and simple" and musing that "to eliminate Mr. Sher from the proceedings would hopefully teach him a lesson," that Mr. Sher himself began to speak from his seat in the courtroom.
"If you want to make an apology, I'll hear it," the judge said.
Mr. Sher, who is a lawyer by training himself, then carefully said that "I'm sorry if Your Honour thinks I breached your order," and vigorously, if politely, began to defend himself.
At one point, Judge Schnall asked, "Did you not understand it?" and when Mr. Sher replied that "I don't believe I breached the ban and I can't apologize under those circumstances," the judge snapped, "Mr. Sher, you've just lost your place in the courtroom!"
What followed was an exchange astonishing by the normal etiquette that governs court proceedings, with Mr. Sher, a citizen, on his feet arguing his position, and Judge Schnall snidely noting, from time to time, that he was only succeeding in "making the case that there should have been a total ban on all publication" or "eloquently making a case for a total ban for the rest of the trial."
At one point in the exchange, Judge Schnall shouted, "Mr. Sher! Mr. Sher! We have certain rules of courtesy, one of which is that when I talk, you don't. You may sit down!"
In the end, however, she allowed him to remain, promising that if he, or his newpaper, breach the order again, "I will revisit this issue."
As for the evidence heard yesterday, it, of course, can't be published pending an appeal of the ban by media lawyers. That appeal is slated to be heard on June 28 in Superior Court in London, Ont.
The mother of the youngsters is expected to testify, in secret, today.
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