Seven children, a clash of rights
Child-protection case highlights difficult choices
Thursday, June 13, 2002
ST. THOMAS, Ont. - What rights do parents have when a children's aid society comes knocking on the door?
Can they tell the social workers to go away? Must they answer the questions put to them? Do they have the right to remain silent, and if they choose not to speak, are the workers entitled to do what in law is called "draw an adverse inference" and assume the worst, or that the parents have something to hide? Can children be interviewed without their parents' consent?
And finally, what is the threshold for the state, in the form of a child-protection agency, to act without a warrant in actually apprehending a child?
Even the Supreme Court of Canada, as evidenced by a two-year-old decision in a celebrated Winnipeg case, is divided on the latter thorny matter.
These are some of the significant questions central to a child-protection hearing now going on in this small southwestern Ontario city.
While the hearing itself is being conducted under a blanket of judicial secrecy because of a sweeping publication ban imposed by Ontario Court Justice Eleanor Schnall, why the case is important is no mystery. Across the country, children's aid societies have the statutory obligation to protect children and unusually wide powers to enable them to do it.
Ontario's Child and Family Services Act, for instance, allows workers to "enter any premises to investigate," without warrant and by force if necessary, if they have reasonable and probable grounds to believe a child is in danger.
Where it gets tricky, and did for the Supreme Court, is when this sort of drastic action -- because it infringes upon the parents' Charter rights to security of the person and against unreasonable search and seizure -- is justified.
In some parts of Canada, such as British Columbia, the Yukon and Nova Scotia, the legislation uses terms such as "imminent jeopardy" and "immediate danger" to describe the so-called emergency situations where authorities are not obliged to seek a judge's warrant before entering a home.
But Ontario, Newfoundland, Quebec and Alberta, for instance, rely upon broader definitions and a less stringent test, allowing warrantless seizure where the risk to a child is deemed to be "substantial" during "the time necessary to obtain a warrant."
Here, the case revolves around the highly publicized seizure last July 4 of seven gorgeous youngsters from their fundamentalist Christian parents' home in the nearby town of Aylmer, Ont. The children were temporarily placed in foster care before being returned to their parents via a deal, which the parents later renounced, that had them agree not to use corporal punishment until the trial.
The society maintains that its workers played by all the normal rules and laws that day last summer, and that, as its lawyer Alfred Mamo said in his opening statement, "All the steps taken by the agency were ordinary and commonplace."
It is now seeking to have the children, in Mr. Mamo's words two weeks ago "who are being hit with objects," formally declared "in need of protection." The finding would see them remain with their parents but only subject to a year-long supervision order that would keep the family under the watchful eye of social workers.
The parents, and the children themselves through their separate counsel, oppose the order and want to live their simple, God-fearing lives -- they belong to the Church of God Restoration in Aylmer, a congregation of 200 members, the majority of whom, like this family, originally hail from the large "Mexican Mennonite" settlement in Durango, Mexico, and generally believe in corporal punishment -- without the boot of Big Brother poised over their heads like an axe about to fall.
Michael Menear and Valerie Wise, the parents' lawyers, say the youngsters were never at risk and the society had no reasonable grounds ever to believe otherwise and they are not in need of protection.
The hearing, now in its third week, has already heard from some of the central players involved in the apprehension -- the lead social worker and her supervisors at the Child and Family Services of St. Thomas and Elgin County; the Aylmer deputy police chief who was at the scene -- with the parents themselves set to testify starting today.
Presentation of the evidence, or what is arguably the lack of it, that led the society to move so swiftly soon will be complete.
Virtually all of it has been heard, as per an earlier ruling by the judge, in a secret mini trial called a "voir dire" and is not reportable.
After legal arguments on the constitutional issues, Judge Schnall, a 55-year-old former defence lawyer from London, Ont., must decide whether the parents' Charter rights were trampled by society workers -- and if she rules this way, as the parents' lawyers have asked, she may well rule that all the evidence obtained that day should be tossed out.
If she finds that the society was justified in moving so abruptly without a warrant and its evidence is thus admissible, the trial proper would then proceed.
One of the cases likely to be cited during legal arguments is the Winnipeg one that divided the Supreme Court.
It involved a mother of five who had a long history of involvement with the local society, Winnipeg Child and Family Services. Her two older children were in and out of care, with the agency seeking permanent guardianship; she was an alcoholic and substance abuser, and, in July of 1996, she informed the society she was pregnant again. A day after his birth, the society apprehended the child, without a warrant, in hospital.
The critical issue for the Supreme Court was whether the warrantless seizure was justifiable. A majority of the court, including retiring Justice Claire L'Heureux-Dubé, found that it was, and dismissed the mother's appeal, ruling that the "emergency threshold" of immediate danger was not the appropriate test.
But two judges, including Chief Justice Beverley McLachlin and Justice Louise Arbour, found that the society should have sought a warrant, and that in general, in non-emergency situations, having to obtain judicial authority first was a constitutional safeguard necessary to "protect both parents and children from unreasonable state interference."
The question here is much the same: Was the society justified in taking the seven youngsters from their parents without a warrant? Was the situation that day one that could be properly labelled an emergency, or, by the lower standard, one where the children were reasonably believed at substantial risk? Did the society's workers, in other words, overreact?
Curiously, Judge Schnall herself once ruled on a case where the issues were not so very different.
On Oct. 12,1999, in a Goderich, Ont., court, she was ruling on a motion by the Children's Aid Society for Huron County, which was seeking to have employees of the local health unit and building department enter a home on its behalf.
The society had received two anonymous complaints, one by letter and one by phone, alleging that the involved children, who were being home-schooled, had "no people skills" and weren't acting "the way normal people live."
From documents before her, Judge Schnall found that there were no apparent abuse concerns, and that the children appeared normal and well.
In her 11-page judgment, which she sealed but which the National Post has read, she agreed the society was seeking to exercise its least intrusive option, but found that the parents, who were "vigorously" objecting to the proposed visits, were "entitled to do so," that the family was "not obliged to let the society and its employees enter the home, not without a court order" and that the authorities ought not to draw "a negative inference" from the parents' lack of co-operation.
She dismissed the motion.
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