Scandalous misconduct in court by Canadian Family Court Judge
June 7, 2002
'Judge's bans grow ever wider"
'Demeanour, tone' declared off limits
By Christie Blatchford
ST. THOMAS, Ont. - It was what educators call a teachable moment.
I had just done the unthinkable -- it is in terms of court etiquette
approximately akin to farting in the presence of royalty -- and dared to
directly address a judge from my seat.
I spoke for no more than 10 seconds. I was polite.
Madam Justice Eleanor Schnall, looking right at me, then snapped: "I don't
recognize anybody speaking from the body of the court!"
The lesson was crystal-clear and it is not for me alone: She has all the
power in that room, and I, like other reporters and members of the public,
must listen in silence, preferably adulatory and at least respectful.
The background goes like this.
I am one of a handful of reporters covering one of the most publicized and
significant child-protection hearings in Canada.
At issue is not only the fate of seven lovely children who were wrenched
last summer from their fundamentalist Christian home in the nearby town of
Aylmer by a local children's aid society that now seeks here to have them
declared "in need of protection," but also the society's reasons for doing
so and whether or not its workers trampled over the family's Charter rights
to security of the person and against unreasonable search and seizure.
In the balance hangs, as all the lawyers here have acknowledged, how social
workers should do their jobs, what grounds they need to apprehend children
from their homes, and what rights parents have to resist their efforts.
From the get-go last week, Judge Schnall was clearly displeased with the
media: With the parents at the last hour seeking a sweeping publication ban,
seven press organizations had quickly arranged for a lawyer to be present to
argue that the hearing should be open. The judge was dismissive of our
lawyer, Tony Wong, essentially announced her decision before she had heard
him out, listened to his arguments with half an ear while paying occasional
flowery lip service to the presumptive right to an open and transparent
court system (this is a trick judges use to cover themselves at appeal), and
repeatedly criticized him and his clients for "wasting valuable court time."
Then, having heard no evidence whatsoever, she declared the seven children
would suffer "emotional harm" if the hearing was public, determined that
virtually all the evidence would be heard in "voir dire," a mini-trial where
reporting is not allowed, and imposed a publication ban so wide-ranging it
prohibited virtually any coverage of evidence and even court artists from
drawing any of the witnesses.
All this, it should be noted, was in addition to the kind of ban that is
usual at child-protection hearings and that the press was never
contesting -- a statutory prohibition against identifying the children or
their parents. The media have since appealed the broad ban and are slated to
be heard in Superior Court later this month.
In the days that followed, two trends developed.
One was that those of us in the press who remained, deprived of the ability
to tell an important story in the normal manner, began increasingly to use
the children's parents, who are in court every day, and their reactions to
the evidence to give our readers a flavour of what the forbidden evidence
This is called "demeanour" evidence -- I was guiltier than most of relying
upon it -- and not once did Judge Schnall object to it.
The second trend was that for a woman who had pronounced herself vitally
concerned with the case progressing, Judge Schnall did little to effect its
speedy movement. She was several times late arriving at court from her
London, Ont., home; recesses purported to be 15 minutes long stretched to
twice that; only once (before yesterday) did court sit late, and never did
it start early -- all these are options available, and often used, by judges
who fear the clock.
Yet at the same time, she often rued the slow progress of the case.
What happened on Wednesday is that videotaped interviews with the seven
children, conducted just three days after they had been literally dragged
from their home by local police and social workers, were played in court.
The youngsters' parents clearly reacted to them as they were played, and
yesterday, some vague reporting of their demeanour as they watched the
tapes, and of the children's demeanour upon them, appeared.
Quite inadvertently, one reporter, Peter Cheney of the Globe and Mail, who
had arrived only midday Wednesday and was thus catching up on the
complexities of the enormous publication ban, made some mistakes in his
Fittingly, it was almost high noon when Judge Schnall belatedly stormed into
her second-floor courtroom.
She proceeded in short order to harshly ream out Mr. Cheney and an
unidentified radio reporter, pronounced herself once again the best guardian
of the involved children, patted herself on the back for her generous
treatment of the obviously undeserving press, and then broadened her already
monstrous ban to preclude any reporting of "the demeanour and tone" of the
parents and children -- and, in fact, "any reporting of anything they see or
hear in the court."
"How the parents are reacting in court," she sniffed, "is not evidence. It
is not a breach of my order ... it is not a breach of the letter of my
order, but it is a breach of the spirit of the order." She prohibited it.
Over the lunch recess, I had consulted Mr. Wong, the media lawyer who last
week tried to persuade the judge to keep the hearing open. My uninformed
layman's view was that Judge Schnall's order was arguably equivalent to a
new publication ban, and that the media should have the opportunity to at
least be heard on its propriety. Mr. Wong agreed.
As a courtesy, Alfred Mamo, the lawyer representing the children's aid
society in the case -- he had also argued strenuously that the hearing
should be conducted openly -- told the judge when we resumed that a media
lawyer wished to make submissions on the matter.
"I will not sacrifice any more court time on the media issue," Judge Schnall
Reluctant to see perpetrated on the formal record the judge's mythical
contention that it is the vile media and only the vile media who have been
delaying these proceedings, I did the unthinkable thing and spoke from my
seat in the front row.
"Our lawyer is willing to be here at 9 a.m., Madam Justice," I said, thus
prompting the judicial equivalent of putting your fingers in your ears and
loudly humming while saying, "I can't hear you!"
At one point, having deemed herself "speechless" by the purported breaches
of her ban, Judge Schnall then delivered a rambling speech about the
egregious nature of the Globe story in which, among other touchstones she
invoked, she wondered aloud, "What will that do for the administration of
Two days ago, a man arrived in Judge Schnall's courtroom, and, poor fellow,
actually tried to take a seat. He was tossed out, of course. The public is
routinely barred from these hearings. The public's surrogate, the press, is
muzzled in this one. What does that do, what do secret courts do, for the
administration of justice?
*Christie Blatchford can be contacted at firstname.lastname@example.org