Friday, April 30, 2010

OPTIMISM PREVAILS / Part 177 / For Love and For Justice / Zabeth and Paul Bayne/

“Order in the court. All Rise!” And with this customary instruction from the clerk we all stood yesterday morning as Judge Thomas Crabtree entered the chamber and took his seat. Immediately counsel Finn Jensen, soft spoken attorney for the Ministry of Children and Family Development and most specifically for the Fraser Region of this provincial ministry began his presentation. Throughout his 40 minute talk he made it clear that he was presenting the views, opinions and recommendations of the Director. You may recall that it was Jensen's advice to the Director that the boys should be returned. The points that Mr. Jensen was instructed by the Director to convey to His Honour were articulated as reasons why Judge Crabtree was in no position to make a ruling on the Bayne application for interim custody of their two boys.

Even though the primary hearing of the application by the Ministry for a continuing custody order applicable to all three children has not been concluded, Judge Crabtree allowed the Bayne's lawyer Mr. Doug Christie to present their application for interim custody of the two boys several weeks ago. The Baynes took this action on the basis of no evidence, previous or new to indicate risk to the boys in the home of their parents. Today was Mr. Jensen's opportunity to respond to the application. It was an adroit tack but perhaps inadvisable. Judge Crabtree would not have entertained this application from the Baynes if he did not believe he is legally entitled to hear the application and to rule upon it. Yet on this day, His Honour was being given a primer on what he could or could not do with regard to ruling on this matter. Friends, Thomas Crabtree was recently elevated to Chief Justice of British Columbia and I doubt that he requires a legal tune-up.

Judge Crabtree told the attending counsels and the Baynes that he was not giving a ruling on this day, but rather he would take a week and next Friday at 1:30 PM in court, he will give his ruling. That should be regarded as a good indicator of the Judge's processing of the evidence and arguments of the Ministry. Had he bought Mr. Jensen's responses the Judge could have, would have shut down this application immediately. We can be confident that this man of integrity will during this week revisit everything that is relevant to this application within the course of an active hearing for continuing care so that he can give these children back to the Baynes because it is evident to all unbiased observers of the facts that this is the sole just outcome.

There were numerous friends and supporters on hand for the Baynes as they continue to live through hardships and heartache few of us understand but we do sympathize.

I have pasted Mr. Bruce McNeill's response to me at the end of my Open Letter to him on April 22, 2010.


  1. It's truly amazing to me that a man - Mr. Jensen, that is - could stand up in court and keep fighting - on behalf of his employer, but fighting nevertheless - to do exactly the opposite of what he himself says should be done.

    How can Mr. Jensen justify working for an employer that is spending untold sums and much energy trying to keep children from their good, loving parents, especially when he himself (Mr. Jensen) has said there is no justification for the Ministry keeping these children.

    Mr. Jenson doesn't believe the Ministry should inflict this suffering, yet he's doing what he can to make it possible. Why? Because he doesn't want to get fired? If so, wouldn't it be far better to be cleaning toilets for a living than doing this sort of dirty work?

    What an awful thing to have to live with. His conscience, that is. And I do think Mr. Jenson has one. And that it must be torturing him, or that it will be in years to come.

  2. I really don't want to be cynical here but I have to wonder if it is just a coincidence the Judge Crabtree is getting this promotion. Is this promotion a reward, a kind of payment in advance, for a ruling that will be in accordance with the way the MCFD does business? Unbelievable, yes. But so is what MCFD does to so many good families.

  3. To CPS DF
    Judges are not promoted by the MCFD.


    “I agree that at the hearing of Bayne's application for the return of their two sons on Thursday 29th, Finn Jensen was "educating" Judge Crabtree and perhaps Mr. Christie in the finer points of CFCSA law. Perhaps with this demonstration, Mr. Jensen was also trying to impress his handlers that he is doing his utmost to forestall the inevitable - the return of the children to their parents. It concerns me that Mr. Jensen appeared to be drawing a line in the sand, daring the judge to cross it with a ruling to return the boys to their parents in this application because Jensen referred to this ruling possibility as an "error in law." Such a ruling would then be subject to an appeal.

    The primary hearing of the Ministry application for continuing custody began in January and struck a delay after three weeks of daily sessions. On Thursday Judge Crabtree said he would make his July and August holiday time available to hear the conclusion of the Bayne matter. So, eight months will have elapsed just to span the time between the start and end of the protection hearing. Jensen posited that the 12-month maximum time in care did not start until "after" a protection hearing. Really? So, MCFD has already had the children for 2-1/2 years and this protection hearing started in January 2010 and definitely won't be completed until at least summer. That provides a gaping loophole in the Child, Family and Community Service Act (CFCSA).

    Such a time span might be appropriate for a major murder case. It is by no means appropriate for a civil matter involving children who continue to be separated from their parents because of a disputed injury diagnosis to one of the three children. The CFCSA loophole notwithstanding, did we somehow forget that the protection hearing is supposed to occur in 45 days of removing children, not 2-1/2 years? From that date, one would suppose the 12-month clock for maximum time in care of the youngest child would have passed a long time ago. Given the length of time that has passed without a resolution, this situation falls squarely on the subject of what is in the best interests of the children, who are enduring this holding pattern, this limbo between foster care and two 6-hour visits with their parents per week. Minimally the children should be allowed to have more time with their parents, and not just in a stuffy building. Judge Crabtree said that if an application was brought before him, he could possibly address it next Friday May 7. A visit in a nearby park is not an unreasonable request, and Finn Jensen agreed. Doubling visitation time from 6 hours to 12 hours, or a half day is absolutely reasonable even though Jensen said that scheduling with Tin Harbout supervisory agency was a problem.


    The Baynes are being subjected to double jeopardy on several points; the RCMP decided that evidence did not support laying charges yet MCFD persecutes the Baynes as though evidence justifies 2-1/2 years of expensive foster care and supervised visitation, and also supports a life sentence that is the continuing custody order. The MCFD returned the boys and then they took them back because a Global TV News story aired on this case. The MCFD denies the Baynes rights of freedom of association and free speech in retaliating against them for interviewing with Global TV, which, by the way was done before they knew they were getting their boys back. MCFD has never had any evidence of risk to the boys. I call this unreasonable seizure of their children, and let’s throw in unreasonable delay in justice as well.

    I have one solution for current visitation limitations: MCFD can do a background check on agreed-upon volunteer supervisors. A volunteer would avoid the "scheduling" conflicts that Finn Jensen said the Tin Harbour agency seems to have; would cost the Ministry nothing; would not compromise the safety of the children; and would allow the visits to happen on the portion of the half day that the children are not in kindergarten or preschool.

    The costs of this one application alone would fund the doubling of visitations between the three children and their parents until the trial was completed! This matter could have, and should have been dealt with offline, but still, we hear from the Baynes that they get nowhere with their simple requests to increase access.

    The judge may indeed be hamstrung in deciding to return the boys before the conclusion of the trial. However, as I've experienced in my case, a judge definitely has latitude to give direction to ensure that "reasonable access" occurs.”

  6. To Ron:

    You are right that judges are not promoted by the MCFD. They are promoted by the same government that runs MCFD. The higher a judge climbs up the judiciary ladder, the more political he will be. That's why governments appoint like-mind lawyers to supreme court judge position, who collectively can make law by making decisions that become binding to lower courts. Canadians generally respect the judiciary and accept their decisions to be independent (from the influence of government), impartial, reasonable and serve the best interests of society. Let facts speak for themselves.

  7. TO ANON ABOVE, for your own reasons you may feel justified with such a conspiratorial view of the entire interlocking legislative and judicial systems but I don't buy it. Governments change and loyalties would be interrupted, and not all politicians, legislators, lawyers and judges are cut from the same cloth in terms of values and principles, so your presumptions break down.


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