SCHNALL RULING

Ruling of Justice E. Schnall on the Aylmer spanking case
February 27, 2003

[Only the conclusions of the 102-page document are transcribed here]

21. CONCLUSIONS
Ms. West was competent and capable though relatively inexperienced in July 2001.

The apprehension was very traumatic to the parents and the children.

I have determined that the parents' section 7 rights were engaged when the children were apprehended.

I have determined that Ms. West had reasonable and probable grounds to believe that the children were in need of protection, and that there would be a substantial risk to the children's health or safety during the time it would take for her to try to obtain a warrant.

I do not conclude that Ms. West acted in a heavy-handed or egregious fashion by effecting an apprehension without a warrant, because she was concerned that she would be unsuccessful in obtaining a warrant on the grounds she had.

There is no evidence at all of such an intention on her part. She is not to be faulted for taking the action she did.

It might have been preferable for a more senior person with higher authority to attend at the home, but the crisis was developing as a result of the actions of the Pastor and the congregants. It is mere speculation to consider whether another person with higher authority would have done the same thing as did Ms. West. Ms. Ewan, a supervisor, gave approval to the apprehension, over the telephone.

On the only reliable evidence that I have, I can find no indication that Ms. West acted in anything but a professional manner. Although some of her actions obviously offended the standards of conduct that the mother and Ms. Siemens felt were appropriate, this was not done in an intentional or malicious way.

The Pastor has to take personal responsibility for the degree of distress caused to the children. He could have stopped the chaos and encouraged a calm approach and response, but he did not. He could have contacted a much more senior person at the Society. Instead, he called the media.

Ms. West had reasonable and probable grounds to believe there was a substantial risk to the children’s health and safety.

She had grounds to believe that the children would be removed from the community and possibly the country, as had another Church of God family.

The community, the Church, and the Pastor all had the means, capabilities and motivation to assist the family to leave very quickly. If the children fled to Mexico, they would be beyond the jurisdiction of the Society and beyond its capabilities to protect the children.

Ms. West had consent to enter the home.

The Society is empowered to speak to the children and examine them, where there are allegations of abuse.

The Society does not require the parents’ consent to examine and interview the children. It is a judgment call on the part of the child protection worker as to the extent of action she should take, or not take.

Children’s Aid Societies are often criticized for not intervening sooner, or more intensively. A situation can arise where there is not enough time to sit calmly and discuss and consult. Such a situation arose when Ms. West, who had attended at the residence to talk to the parents and be able to close a file, found herself in the midst of a volatile situation, orchestrated by the Pastor of the Church of God, under circumstances which led her to believe that the children may be at risk, because their removal from their home, or even the Society’s jurisdiction, could be accomplished quickly and effectively by the Church of God community. She had to prevent that from happening.

The questions posed in the first part of these reasons, can now be answered as follows: The apprehension was lawful.

Ms. West effected a warrantless apprehension, as she had reasonable and probable grounds to believe that the children were in need of protection, pursuant to section 40(7) and there was a substantial risk to the children’s health and safety: they were being hit (disciplined) with objects that left marks and the parents refused to promise to stop this conduct. She believed that she did not have time to obtain a warrant.

There was no evidence that she attempted to do so. She gave an acceptable explanation. A supervisor made the decision that an apprehension might be necessary.

The time for parents to object as to the unlawful status of apprehension is as soon as reasonably possible after the apprehension. I emphasize that the sooner the issue is raised, the more likely the chance of having the children returned. Nevertheless, whether the unlawfulness of the apprehension is challenged immediately after it occurs or not until the hearing, the status of the apprehension is not a bar to the Society proceeding with the application. I am not unmindful of the obstacles faced by families who become involved in child protection proceedings.

There are financial obstacles to retaining counsel and emotional factors may be peaking at the time the Society is getting involved. The test however, at the apprehension hearing is at a lower threshold than the test for at the hearing finding children in need of protection. In other words, if parents succeed at the apprehension hearing in having the children returned to them, it is unlikely that the Society would bring an application where the finding of risk of harm requires a higher standard.

The Society can proceed with a protection application, whether or not the apprehension was found to be lawful. The application and the apprehension are independent of one another.

Where allegations of abuse or neglect are made, the Society is empowered to ask questions of the parents in the course of its investigation.

Parents are not obliged to answer the questions during the investigation, but the Society must have reasonable and probable grounds to believe that there is a risk of harm, or the children have been harmed, in order to begin its investigation.

Under the circumstances, it is not unreasonable for the Society to draw a negative inference in the investigation if the parents choose not to answer. The Society is not required to obtain the parents’ consent to speak to the children in the course of the investigation.

To hold otherwise, would significantly impair the Society’s ability to gather information to determine if an apprehension is necessary, or whether even any intervention is necessary. The court is entitled to have before it all available, relevant information.

This concept requires that parents be compellable to file documents and answer questions as required by the Rules of the Court. The parents are compellable to answer questions at the hearing, again the purpose being to provide relevant and necessary information to the court.

The process should focus on obtaining relevant evidence, to focus on what the children need, not what the parents want. A parent can invoke protection in the Ont a r i o E v i d e n c e A c t , such that ‘incriminating’ answers given by the parent as evidence cannot be used against them in subsequent proceedings.

There were no violations of the parents’, nor the children’s rights that would result in exclusion of the evidence. Exclusion of this evidence, admissions that the children are struck with objects, and marks are left would bring the administration of justice into disrepute.

Mr. and Mrs. F. are clearly and undoubtedly parents who cherish and love their children dearly. There is absolutely no doubt in my mind as I come to that conclusion. Their love and concern and personal pain were evident as they watched videotaped interviews of their children; as they spoke with pride of their children's good behaviour and accomplishments.

The fact that the parents believe that they strike their children out of love, and that they are obliged to do so because of the teachings of the Bible as interpreted by their Church, does not detract from the view that excessive force cannot be condoned, under any circumstances. Application of force to a child that leaves a mark is unacceptable.

It is very significant to note the evidence of the Pastor, who clearly indicated that leaving marks or bruises when disciplining the children, was not allowed. The Pastor indicated that he did not know that marks were left on the F. children.

The rights of the parents cannot be elevated to be paramount to the rights of the children. Where the needs and interests of the children to be safeguarded from abuse of any form come into potential conflict with the rights of the parents to freedom of security of the person and to privacy, the children must come first.

Those rights and freedoms are unequivocally engaged when the Society, as a delegate of the State intervenes in their affairs, and certainly when their children are removed from their care. In this case, the infringement occurred in accordance with the principles of fundamental justice as much as is possibly contemplated within the paramount purpose of the Act , having also in mind the other purposes as set out in the A c t .

There is no obligation on the Society to advise a parent of their "right to counsel" under the circumstances of the child protection investigation. Moreover, that right does not arise unless there is a 'detention' of the parent.

There was no detention of either parent in the circumstances of this case. Counsel arguing the Cha r t e r issues was unable to provide any evidence whatsoever, in response to my repeated requests for the identification of such evidence, that would form the basis for that argument, that the parents, at least the mother with whom Ms. West had most of her interaction, ought to have been advised that she should talk to a lawyer before there was any further questioning. On a practical analysis of that argument, the unacceptable consequence of Ms. Wise's argument would be a situation where a child is within a home, unavailable to the Society to interview, or even intervene, while the child is potentially at risk, until the parent has a chance to telephone a lawyer, perhaps not be able to contact one who speaks a language other than English, as in this case, and then wait while the parent obtains legal advice.

Ms. Wise's argument on “right to counsel” would have to be equally applicable to a case where a child is lying bound and gagged in a locked room while the parent is obtaining legal advice, having been informed by a Society worker that that is her/his right, just as in the case before me, where there was information that the children were being struck with objects, and in the past, marks had been left by hitting with an open hand.

The same analysis applies to answer the parents' argument that the Society must not be allowed to speak to children without the parents' consent. For that argument to prevail, it must be applicable in all circumstances, in order for parents to exercise those ‘rights.’

No community, or society, could reasonably agree with the concept that a parent who sexually abuses or physically mistreats a child should be entitled to give his/her consent to the interviewing, or examination of the child by a member of a Children's Aid Society. That would be sheer nonsense.

22. FINDINGS I find no breaches of section 7 rights as any violations were in accord with the principles of fundamental justice. I find no breaches of any rights under sections 8, 9, or 10(b) of the Cha r t e r .

23. RULING The ruling on the voir dire was released to all counsel on October 10, 2002. I ruled that all the impugned evidence was to be admitted. The parents' Motion to Exclude Evidence is dismissed. The issue of costs remains to be addressed at the conclusion of the proceedings.

DATED February 27, 2003 ______________________ Justice E. Schnall