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NP: Reporting bans work like a charm

Date: JUN-20-02
Source: The National Post
Keywords: secrecy, constitutional rights, evidence, appeal
Posted: JUN-20-02
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Reporting bans work like a charm

Christie Blatchford
National Post

ST. THOMAS, Ont. - The long drink of water who is the father of seven children seized by the local children's aid society from their home in nearby Aylmer last summer is now in the witness stand at the secret hearing being held to determine his family's fate.

Because of a sweeping publication ban imposed upon the proceeding by Ontario Court Justice Eleanor Schnall at the start of the case, virtually nothing can be reported about the man's testimony or his demeanour while giving it.

Physical descriptions are just about the only aspect of the witnesses here that do not fall under the wide-ranging gag order.

The father is tall and slim, and wore his usual uniform of black vest and pants and a bright white dress shirt. He gave his evidence-in-chief yesterday morning, and his probing cross-examination at the hands of Alfred Mamo, lawyer for Child and Family Services of St. Thomas and Elgin County, will continue tomorrow.

In a general way, it can be said that the father testified both about last July 4, the day his youngsters were seized, and about the discipline practices used with the children by him and his wife.

The couple are so-called Mexican Mennonites who were born of Canadian ancestors in Durango, Mexico. Many have emigrated to Canada in recent years, and this family, like others, subsequently joined the Church of God Restoration, a 200-member fundamentalist Christian sect centred in a new building just outside Aylmer.

Mexican Mennonites comprise about three-quarters of the church membership, and here, where they are a largely low-German-speaking enclave in an English-speaking region of the province, they remain as curious a group of immigrants as they were in Mexico, where they were a low German-speaking island in that Spanish-speaking nation.

As the days dwindle down to a precious few at the hearing -- there are only four more days scheduled and optimistic estimates suggest the evidence may be completed early next week -- the case is emerging as a remarkable one in several regards.

The first is how very little, after 12 days of evidence, the Canadian public knows about a case that could have stunning ramifications both for parents across the country and for the child-protection workers who are charged with safeguarding vulnerable youngsters.

Because lawyers for the parents allege that the couple's Charter rights to security of the person and against unreasonable search and seizure were trampled by society workers, the first order of business for Judge Schnall is to rule on this issue and determine whether the evidence gathered as a result is admissible here.

Mr. Mamo, for the society, maintains that its young worker was merely doing what she is authorized by provincial statute to do, and that her warrantless apprehension of the youngsters was perfectly ordinary and carried out according to all the rules. What the society is seeking here is a year-long supervision order that would allow the children to remain at home, but only under the watchful eye of the worker.

Should the judge decide the couple's constitutional rights were breached, it would be a landmark decision that could make the social worker's already difficult job even more complicated. Should the judge side with the society on this issue, the decision likely would add fuel to pro-family advocates who fiercely defend the sanctity of the home and believe children's aid societies intrude there too often, too easily and with too few checks and balances.

Yet the public knows virtually nothing of the facts of the case that will inform the judge's eventual findings. Indeed, Canadians may never know.

In effect, lawyers for the parents are asking the judge to find that social workers are, like the police, agents of the state who need similiar sorts of controls placed on their conduct. As in the criminal courts, where evidence can be ruled inadmissible because of the way police obtained it, so, the mother's lawyer, Valerie Wise, argued weeks ago in her opening statement, should Judge Schnall find the evidence here, in a civil proceeding, is similarly inadmissible.

Ironically, given the potential for crossover of criminal court standards into the civil courts, one of Judge Schnall's early decisions here saw her borrow a tool much more common to the criminal side.

Because of the contentious nature of much of the evidence, the judge decided at the get-go to hold virtually the entire hearing in ''voir dire'' -- the phrase is, according to a learned law professor, a corruption of so-called ''law French,'' the Norman French used in the English common-law courts for centuries after the Conquest, and which is itself a corruption of ''vrai dire,'' which means to hear the truth.

Voir dires are effectively trials-within-trials, and are usually reserved for a criminal jury trial.

There, a judge may first screen in the absence of the jurors evidence that is potentially damaging to an accused but which is held by defence counsel to have been improperly or illegally obtained, and thus unfair.

If the judge finds the evidence is inadmissible, reporters are forbidden from publishing it until the jury has retired to begin its deliberations, at which point it will usually enter the public domain.

But here, there is no accused. Neither is there a jury to be tainted by hearing evidence that is prejudicial but inadmissible, only a judge who is presumed to have the ability and wisdom to disregard it and set it aside.

And neither, thus far, is there an end in sight to the ban -- no fixed time at which the voir dire prohibition will expire. Judge Schnall has indicated that should she toss any of or all of the contested evidence, it may remain permanently under wraps.

In the background is another decision made early in the case by the judge, her ruling, reached without her admittedly having heard a whit of evidence, that any publication of the details of the hearing would cause ''emotional harm'' to the involved children.

And this is the second lesson of this case: Publication bans work like a charm.

Lawyers for a handful of media outlets are appealing the ban in this case, and even the parents through their lawyers last week asked Judge Schnall to lift it. But the appeal will not be heard until June 28, by which time, the hearing, as it is scheduled now, will be just one court day away from the anticipated end of the voir dire.

It is worth noting that under Ontario's Child and Family Services Act, members of the public are routinely barred from child-protection hearings, as indeed they are here. In addition, there is a statutory ban, not contested in this case by the media, which keeps confidential the names of the children and their parents.

Copyright 2002 National Post

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