Jul. 19, 2002. 01:00 AM
Children's probes at risk, judge told
Spanking case `bigger than Elgin County:' Lawyer
By Kate Harries
ST. THOMAS - A decision in a case involving the corporal punishment practices of a fundamentalist Christian family could have a far-reaching impact on child welfare investigation, a judge was told yesterday by a children's aid agency lawyer.
"This case is much bigger than Elgin County," Alfred Mamo told Madam Justice Eleanor Schnall, who yesterday reserved decision on whether statements made by the parents and children were obtained in violation of their Charter rights.
If the kind of protections the Canadian Charter of Rights and Freedoms affords to the accused in criminal proceedings are extended to parties in child welfare cases, "the law as it is now would be completely turned upside down," he said.
[that's precisely the point; current child protection laws need to be turned upside down! -ed]
If she finds in favour of the parents, provisions of child protection legislation aimed at gathering information quickly would become ineffective and abuse investigations would become bogged down in an adversarial process, Mamo said.
The departure from existing law would have a ripple effect through the Commonwealth and all countries of common law jurisdiction, Mamo said.
The case has boiled down to whether Family and Children's Services of St. Thomas and Elgin breached Section 7 of the Charter, which guarantees security of the person, when social workers and police officers seized seven children from their Aylmer home a year ago.
If so, lawyers for the parents argue, Section 24 comes into play, providing for the exclusion of evidence that has been gathered in a way that brings the administration of justice into disrepute.
Such arguments are parent-focused, not child-focused, Mamo said, adding that he found the position taken by the parents unbelievable.
Their lawyers don't want statements made by the parents and the children to be considered by the court. The statements were made on the day of the apprehension and subsequently, regarding the parents' use of objects — an electrical cord or the metal end of a flyswatter — in physical discipline that was administered over clothing. No marks were found on the children.
`The purpose of this hearing is to decide if the parenting ability is adequate.'
Children's aid laywer
"The purpose of this hearing is to decide if the parenting ability is adequate," Mamo told Schnall, and it would run contrary to the principals of fundamental justice to exclude such relevant information.
Mamo urged the judge to "send a clear message that children are persons too and have the right to be protected, sometimes from their own parents."
He argued that the constitutional rights cited by the parents are applicable only to criminal proceedings to protect the rights of an accused.
In child welfare cases, there is no accused, and the purpose is to determine the best interests of the child, he said, urging Schnall to balance the greater benefit of child protection against "the risk that children's aid societies will somehow go knocking on people's doors and asking questions needlessly."
The society is seeking a 12-month supervision order. The parents, members of the Aylmer Church of God Restoration, are asking for a stay of proceedings and an award of costs.
Their lawyer Valerie Wise said the apprehension was unlawful, unconstitutional and harmful to children, because the circumstances did not meet the statutory threshold — that children must be conveyed to a place of safety because they are at serious risk of harm.
In fact, the purpose of the apprehension in this case was not to ensure the safety of the children, but to enable the agency to build a case, West charged.
"We need to be concerned about the idea of social workers and police officers going around and entering homes on insufficient evidence," she said.
The children were held for 22 days before being returned under a court-sanctioned deal.
Schnall said she expects to have a decision within the next two months on whether evidence she's heard in voir dire — a trial within a trial — can be admitted.
If she rules in favour of the parents, the society will have to consider whether it can still prove a case. If the society succeeds, the trial will continue.