ST. THOMAS, Ont. - For three days now,
Ontario Court Justice Eleanor Schnall has made a huge stink about the
time being squandered in her courtroom, where a high-profile
child-protection hearing is underway.
What a pity, then, that the 55-year-old
judge, who lives just 25 kilometres away in London, Ont., appears unable
either to get to the St. Thomas courthouse on time or keep to her own
Yesterday, Justice Schnall was 40 minutes
late arriving in court. She apologized, offered no explanation except to
say, "It's not my preference", and then criticized the lawyers
for the parents at the centre of the case for filing
"defective" documents that caused a brief delay and what she
termed "a sacrifice in court time."
The day before, according to what her
clerk told lawyers waiting to start, the judge arrived at the courthouse
just five minutes late, but then did not actually appear for another 90
minutes, at which point she explained that she had been working on a
critical decision involving the sweeping publication ban she
subsequently imposed on the proceedings.
The day before that, Justice Schnall held
a pre-trial conference in her chambers, arrived in the courtroom only at
12.25 p.m. and proceeded to tear a strip off Toronto lawyer Tony Wong,
who represented seven media organizations opposing the parents' motion
for the publication ban.
The judge harshly criticized him for
obliging her to "sacrifice court time" and for
"hijacking" the proceedings, and repeatedly pronounced herself
"dismayed" at the delay caused by having to hear arguments
about the media's constitutional right to freedom of expression.
The berating completed, the judge then
glanced to the wall on her left, and with a cheerful smile said, "I
just looked at the clock and saw it's almost 1 p.m., when the court
breaks for lunch .... I see no reason to change that," and promptly
adjourned until 2.15 p.m.
But she was then 10 minutes late
returning, as often she is.
In the courts, this is called "judge
time" -- where everyone but the hapless citizens involved
understands that 15-minute breaks routinely will be doubled in length
and that an extra 20 minutes is invariably added to the purported hour
for lunch. It's common. What isn't is that a judge who is less than
punctual herself castigates the other players in the case for delaying
Indeed, if there is a theme emerging from
the tiny second-floor courtroom where Justice Schnall runs the show with
an iron hand, it is arguably, "Do as I say, not as I do."
In the few days the case has been going
on, the judge has ordered a reporter to stop chewing gum, congratulated
the participants she kept waiting while she worked on her publication
ban decision for not engaging in "boisterousness," and
patronizingly spelled "voir dire" -- a French term for a trial
within a trial where the admissibility of evidence is determined -- for
an audience comprised solely of lawyers and court reporters already well
familiar with the phrase.
The publication ban she imposed
inarguably dictates the narrow scope of reporting which will be allowed
throughout the trial -- she has effectively ruled in advance that
virtually all the key evidence is potentially inadmissible and thus not
publishable and has prohibited even artists' sketches of any witnesses
-- and yet Justice Schnall at one point said of herself, with clear
satisfaction, "I absolutely do not want to be seen as to be telling
the media how to write."
In the next breath, she warned that if
the limited reporting she is allowing becomes too detailed, "I'll
draw the strings even more tightly" around the already stiff ban.
In the space of a few hours that day, she
first said that reporters would be able to publish the lawyers' opening
statements, which she said she expected would be reasonably full in
laying out what the issues in the case are because "the public
should know" -- and then proceeded to warn the lawyers that their
statements must be brief and stay away from the very evidence which is
the only thing that explains those issues.
The following morning, after the four
lawyers had delivered opening remarks that were skeletal in their
brevity, Justice Schnall told the lawyers that if they had felt
"constrained" by her earlier directions, they should not have.
At the heart of the case, which involves
the controversial seizing last summer by a local children's aid society
of seven youngsters from their fundamentalist Christian home in the
nearby southwestern Ontario town of Aylmer, is what caused the society
to take the drastic action and whether its workers trampled over the
family's Charter rights to security of the person and against
unreasonable detention and questioning.
In the balance hangs not only the
question of whether the family should be supervised by society workers,
but also how child-protection workers can do their jobs -- whether, for
instance, they should be able to question suspected abuse victims
without first obtaining consent from their suspected abusers.
Yesterday, the society's central witness,
the worker who had carriage of the case when the children were
apprehended, kicking and crying, last July 4, finally took the witness
stand. But the worker's evidence about the society's rationale -- and
there is one -- can't be reported, and she cannot be identified,
photographed or drawn.
All the press can report is that the
parents, members of the Church of God Restoration, have changed their
evidence about how they disciplined the youngsters before they were
temporarily apprehended by the society.
The change, described as
"profound" by Justice Schnall, emerged when lawyers for the
couple, told the court yesterday their clients now do not agree to two
lines contained in an affidavit signed and sworn by the father as being
true. Similar information was repeated in what's called the
"answer" in civil proceedings, a document which is akin to a
statement of defence.
Because this document was signed only by
the couple's lawyers, and not by the parents themselves, the judge ruled
it was defective, and ordered that it be fully translated into the
"low German" dialect which is the couple's first language, and
then signed by them.
When the translation was complete,
Michael Menear, who represents the father, announced that the parents
now dispute two key admissions in the document.
Mr. Menear, however, agreed that "my
client swore it was true, so he's got some explaining to do", and
the document was ultimately admitted, with the father to be questioned
about it when he testifies.
In general, the right of the press to
report on court proceedings, and indeed the court's independent
obligation to protect it, has been confirmed by the Supreme Court of
But in child-protection cases, the right
is also backed by statute: The provincial Child and Family Services Act,
the legislation which governs such hearings, provides that the press has
what's called a presumptive right to report on proceedings, subject only
to the usual proviso that the involved children and their parents are
not identified unless the judge is also persuaded that publication will
cause "emotional harm" to the children.
The ability of the press to fully cover
these hearings is rendered additionally important because members of the
public are routinely barred from being in the courtroom, as they are
here. Child-protection hearings are, in other words, one of the few
instances where reporters are literally the surrogate of the public.
But Justice Schnall appeared dubious
about the media's right. At one early point in the hearing, she told Mr.
Wong, "What I would suggest is this ... convince me there is a
presumptive right the media should be in."
It is perhaps instructive to note that
Justice Schnall, who was appointed to the bench in 1991 under the
then-New Democratic Party Ontario government, was featured in a story in
the London Free Press almost exactly a year ago.
The story was about the supposed
elevating effect of women judges upon the justice system, and Justice
Schnall was quoted as saying that female judges were "more just
because of our experience of being overtly or indirectly discriminated
against." The story noted that she had once taught at the
University of Western Ontario law school classes on the public
perception of the legal profession, sex discrimination, and the legal
How amusing, then, that yesterday she
should have struggled to figure out a simple mathematical question, the
very sort with which women, in the nasty stereotypes, must wrestle.
The judge was trying to figure out when
court should return from lunch.
It was then 12.15 p.m.; she wanted to
take a break of an hour and 45 minutes so the lawyers would have time to
fix the defective document and grab a snack.
Justice Schnall had to ask her clerk what
time that meant court should resume.
"Uh, two o'clock?" said the
The judge was still 15 minutes late