Jun. 29, 2002. 08:18 AM
Ban lifted at spanking trial
Appeal judge allows media coverage of court proceedings
By Cal Millar
LONDON, Ont. - A publication ban that had prevented the media from reporting details of a child abuse case in St. Thomas was lifted following an appeal to the Ontario Superior Court of Justice.
Mr. Justice Thomas Granger said the judge in the Ontario Court of Justice provincial division made a mistake when she imposed a sweeping ban that muzzled the press in a case where seven children were taken by Family and Children's Services officials from a home in Aylmer last year.
"In my view, the required evidentiary foundation - i.e., would there be emotional harm to the children to support a publication ban - is lacking in this case," Granger said after a half-hour of deliberation. "A trial judge is not at liberty to impose such a ban based on speculation."
Granger said there is no rule to prevent the publishing of information in a trial where a judge is sitting alone on a case. Granger said he would not impose an order for costs.
The Toronto Star and a number of other news media outlets filed an appeal to the Ontario Superior Court of Justice here after Madam Justice Eleanor Schnall issued a number of orders in May and June prohibiting routine news coverage of a hearing following the request for a protection order for seven children who had been seized by children's aid officials July 4, 2001.
The children spent about three weeks in foster care before being returned to their parents, members of the Church of God Restoration, a Christian fundamentalist sect that believes in corporal punishment.
Lawyer Paul Schabas, who represented the Toronto Star, National Post, Canadian Press, Hamilton Spectator, London Free Press and the CBC, said he's pleased with the decision.
"The media are free to report what's been going on in that courtroom in St. Thomas for the last month," he said in an interview. "We'll all begin to understand what this case is about."
Schabas told Granger the judge hearing the case had exceeded her jurisdiction and made a ruling without any evidence. He said conditions she imposed in various bans were based on her own unsupported and speculative concerns.
He also suggested the orders were in clear conflict with the Supreme Court of Canada and contrary to the Charter of Rights and Freedoms.
"In imposing a ban she's done more harm than good," he told the court. "The bans have created more questions than answers about what's going on in our courts."
He noted that the lawyers representing the parents of the children, who initially requested the ban, now want it lifted, and the lawyers for the Family and Children's Services have always opposed a ban.
Schabas said it's only the lawyer for the children who wants the ban retained although they didn't indicate support when the lawyers for the parents requested the publication ban.
He said the media serves as the eyes and ears of the public and may be present at family hearings. "It's a public hearing," he said. "The public has the right to know what's going on in the courtroom." Schabas said the judge had insulated herself from scrutiny.
Schnall issued orders prohibiting the media from reporting anything seen or heard in the courtroom, including testimony from witnesses. Media outlets were also prevented from identifying witnesses by name until they finished giving evidence and wouldn't allow reporters to give a description of the demeanour of parents.
She also said witnesses could only be photographed from the back and she imposed other restrictions, including on publishing the name of the primary worker who had initiated the apprehension of the children.
Schabas said Schnall had applied the law in an unconstitutional manner and ignored the need to justify a ban.
"Madam Justice Schnall speculates when there's no evidence whatsoever," he said. "She's clearly exceeded her jurisdiction." Legal arguments Schabas filed said Schnall's wide-ranging ban covered a number of matters well beyond the already significant ban on reporting any of the evidence heard during the hearing.
"Justice Schnall could have imposed a far less stringent ban in order to protect the interests of the children," the factum stated. "In imposing such a wide-ranging ban, she failed to abide by openness principles, which require that a publication ban be as narrowly circumscribed as possible. Instead, she made openness the exception to the general rule of very narrowly prescribed reporting."
The factum said there was no evidence that publication would have a deleterious effect on the children.
"The courts have long recognized the multiple salutary effects that flow from an open court system," he said. "The need for openness is particularly acute in the present case, as it deals with matters of great public importance, such as freedom of religion, corporal punishment and the role the public institutions play in protecting society's most vulnerable members."
Schabas said Schnall ignored the importance of timeliness and quoted an Ontario General Court decision that said even a temporary news blackout, whose duration is unpredictable, is fundamentally inconsistent with free speech and the press. "News is news precisely because of its immediacy," the decision states.
Schabas suggested Schnall had "turned the Charter on its head" when she imposed the restrictions.
He said the Family and Children's Services didn't oppose the ban because they didn't want to be seen as acting in secrecy. "It's very important for the light to shine on this very important case," he said.
The Family and Children's Services lawyer, Alfred Mamo, said Schnall had misapplied the law and the application of law when she put the bans in place. "There's national media interest in this case," he said. "The public has a right to know what goes on."
Donald Kilpatrick, the lawyer representing the children, urged Mr. Justice Ganger to continue the ban on evidence. He said the children are innocent victims in this case and can be readily identified because of the publicity that has already been generated. Other reasons delivered by Schnall in support of her publication ban said she considered publicity would cause distress or confusion to the children and result in emotional harm.