Judge who demands silence speaks out
Spanking not the issue she tells TV
ST. THOMAS, Ont. - Here come da judge, indeed. Ontario Court Justice Eleanor Schnall, having silenced virtually everyone else in her courtroom for four weeks by dint of a sweeping publication ban, yesterday walked all over it herself by commenting on the controversial child-protection case over which she is presiding.
Arguably, she even appeared to be tipping her hand a little.
Judge Schnall was waylaid by a television videographer on her way into court for the morning session.
She said flatly that the case involving the seven children who were seized last summer from their fundamentalist Christian home in the nearby town of Aylmer by the St. Thomas children's aid society has nothing whatsoever to do with spanking -- something that may surprise the pants off the parade of witnesses, including the youngsters' parents, who have spent long days in the stand being grilled about their use of and beliefs about that very thing.
Judge Schnall even appeared to be hinting -- though as always, she was elliptical, so this is hardly a sure thing -- that she may be leaning toward tossing out at least some of the evidence obtained about the parents' discipline methods because their Charter rights to security of the person and against unreasonable search and seizure may have been trampled.
''Really, it's not a spanking case,'' Judge Schnall told Guy Goodwin of The New PL station in London.
''You gentlemen and ladies have been sitting in the courtroom long enough to recognize that this isn't about spanking in the way that most of us consider spanking.''
The brief interview was broadcast in its entirety on the station's 6 p.m. news last night. The National Post has obtained a transcript.
The discussion began as an informal chat with Mr. Goodwin, another television reporter and a photographer asking the judge to stop for pictures.
Judge Schnall is a warm and approachable person, and cheerfully agreed -- even joking that like cameramen, she too could use a ''roadie'' to tote her gear about -- but as Mr. Goodwin began asking questions, Judge Schnall answered them.
To understand their exchange, it's important to know that because of a ruling made by the judge early in the case, virtually all the evidence has been heard first in what's called voir dire, effectively a trial-within-a-trial.
Such proceedings, in the criminal courts, are designed to protect jurors from hearing prejudicial evidence against an accused that may later be deemed inadmissible because it was improperly or illegally obtained, and they are always subject to a temporary publication ban.
The lawyers for the parents in this case argue that the same principle should apply here, to a civil proceeding, and have asked Judge Schnall to throw out -- or deem inadmissible because of the alleged Charter breaches -- the information obtained by the children's aid social worker on the day the youngsters were apprehended without a warrant and taken into foster care for about three weeks.
Back now to Mr. Goodwin, who asked the judge if her ruling will clarify the spanking question.
As things stand, the Ontario Court of Appeal has recently confirmed that parents have the right to use reasonable force with their children for the purposes of correction, but children's aid societies and social work professionals continue to condemn the use of corporal punishment and remain vigilant about ferreting out adherents.
Judge Schnall said she hoped her ruling would ''promote a better understanding,'' then added, ''If you air this [and] I'm going to be on television and on the news and it's probably not appropriate for me to comment specifically on this case, but it is certainly well-recognized that these are important issues and the Charter issues that the parents' counsel are going to raise make this case a very, very interesting case.''
This was classic Eleanor Schnall, as she has appeared in the courtroom: First, she announces she will not do what she then proceeds in the next breath to do.
Mr. Goodwin, like any good reporter, then asked the same question a different way and whether her ruling would be more than a simple one-sentence decision and if it ''will tell us in effect whether spanking is appropriate?''
Judge Schnall demurred by saying that she isn't ''known for brevity.''
Mr. Goodwin tried again: ''So there will be guidelines? As parents, we'll have a better sense of this?''
The judge said, ''Well you are just advancing a little too fast, because first of all we have to make a ruling on the voir dire as to what is going to be considered admissible, and I think that's where the real fascinating piece of all this is, in terms of the Charter issues, and how we can apply them and should apply them or not apply them to these kinds of cases.''
Her remarks, whatever they may turn out to mean or not, are, well, remarkable simply because she made them. It is highly unusual for a judge, in the midst of hearing a case, to comment in any way upon the issues she has yet to decide.
Furthermore, in light of the wide-ranging gag order she imposed at the start of the proceeding -- it puts a temporary ban on identifying witnesses until their testimony is complete and a thus-far permanent ban on the use of the social worker's name; forbids court drawings and photographs of any witnesses, and deems verboten reporting of any actual evidence and even any description of the demeanour of witness giving the evidence -- Judge Schnall's comments are rendered even more extraordinary.
She has several times berated reporters for allegedly breaching her publication ban, and was clearly displeased to learn one day that a witness in the case was quoted in a local newspaper --though not about the case.
The judge's comments came on the eve of a media appeal of her gag order, slated to be heard in Superior Court in London today.
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