Friday, November 26, 2010

A BRIEF REPRISE/ Part 379 / For Love and For Justice / Zabeth and Paul Bayne

Yes of course issues of abuse and neglect affect children from every social and economic societal strata. The majority of families involved with MCFD however, are socially marginalized and economically disadvantaged. In 2005, 2006, and 2007 Paul and Zabeth Bayne did not fit that social classification. They were employed and had purchased a new home with property. They were beginning to fulfill a shared dream of family in a family home where children grow up well and happy and motivated to aspire to develop and to achieve. Paul experienced job layoff that many others do and then an on the job injury but they were okay and they would have been fine. They had a community of friends and family who responded kindly with help.

Their third child's injury sustained in the home in 2007 and the indicators which obligated the investigative pediatrician to base her diagnosis on her conviction and training turned their idyllic world on its ear. You who are familiar with this case hardly require a reminder of the precipitant diagnosis. In this physician's mind, the child's observed medical conditions corresponded unambiguously with non accidental causation. The injury(ies) had to be inflicted by someone. That was the assumption, not the evidence. That led to the understandable involvement of the RCMP and then MCFD. When the investigative dust settled, RCMP withdrew and MCFD based its opposition to the fitness of the Baynes to parent that injured child, on that first doctor's diagnosis. MCFD action can only be countered legally and the costs of that now marginalized the Baynes in this sense, that they forfeited their home and Zabeth's grand piano to cover legal costs. So they too could have been called economically disadvantaged I suppose. They needed to be available during day hours to attend meetings, court dates, and visitation dates with their children. Did they seek social assistance? Listen, they took night custodial jobs and have lived in rental facilities. But you need to know that they have an attractive, warm, clean, roomy house with a yard and ample space to which their children can return. They have food and security and friends and family. They have everything that is required materially and socially and emotionally and morally to manage this family.

And they didn't hurt their youngest child.
They provided the only explanation they could, and it was reasonable in the opinions of many experts who were asked to review the same medical evidence that the original pediatrician discovered. A playful running sibling fell on the baby. That much the Baynes knew. Neither child at the time appeared to be more than temporarily affected so the event was dismissed. When their infant newborn began to be distressed over a period of days and no medical professional in any of several medical facilities was able to accurately assess what was going on, they were desperate. They did mention the children's collision during one medical visit but that data was noted and ignored. Only when the serious findings were disclosed in Children's Hospital did they realize the impact of that earlier domestic accident. What else were they to deduce? Faced with an accusation that one of them had willfully harmed the child, that childish tumble now offered the only explanation. An explanation which was not accepted by the medical professionals at Children's Hospital or by the caseworkers assigned by the Fraser Valley MCFD. So it has come to this. We wait now for a judge to come to a judicial opinion. We may have eight or nine weeks to wait.


  1. A reader corrects me. Polak's hands are not completely tied. The law prevents her from doing some things, but not everything. If she had the guts she could respond like a human being and not like a bureaucrat's mouthpiece. The premier would consider her a loose cannon, but at least she could go down firing.
    Director's like Bruce McNeill do not get fired. When they have become a liability,they get promoted to a higher paid sinecure. Bruce has thoroughly earned a promotion.
    Today I began to wonder what it would be like to sit in Judge Crabtree's chair right now. I do not attempt to try to figure out what the judge is thinking, because I know nothing about him as a lawyer and judge, nor as a person. I am saying suppose I had gone in for the law and became a judge and I had to sit through the Bayne hearing, what would I be thinking at this stage. I will assume that I had done little family court work and my legal practice had been mainly defending impaired drivers, contract law and the occasional divorce. As a judge I had done a few criminal trials, but few family cases. I would be used to the culture of the criminal courts and I would accept as normal the long and tedious quibbling that goes on as essential to finding truth and justice.
    I think the first thing that would worry me would be the length of time taken out of these children's lives. Ouch; three years is a long time before court. Oh my gosh, I just read the act in preparation for the trial and we are way over the time limits. I feel that as judge I should try to do something about that, but I don't see how it is in my power to do so. I cannot manufacture court days. As the case has gone on I have tried to cut down court time by accepting written submissions wherever possible, but whenever I save a day the ministry seems to waste it. I have been totally appalled at some of the director's behaviour, and some of the evidence has shabby and groundless. I was so tempted to interfere on occasion, but I do not want to give these people a hint of an appeal. I do not doubt that they will if they can. In the end I just decided to give them enough rope to hang themselves. I feel so sorry for what this family has been through and I want to reunite this family, but I dare not hurry the process. What is another month or two at this stage?

  2. If I were the judge continued.
    I’m not worried about my verdict. When I ruled that the cause of injury cannot be inferred from medical evidence alone, I knew that I had virtually disqualified Dr.Colbourne’s testimony and that I had gutted the director’s case. They never produced the sort of compelling evidence that would warrant a continuing care order and a return to the parents is the only viable option at this stage. I am well aware that this could be an important test case for British Columbia, so I think it would be a mistake to just return the children and write some adequate reasons. I think I must look carefully at every piece of medical evidence and quote my reasons for not accepting the ministry testimony as valid. I must review all of Finn Jensen’s arguments and also Doug Christie’s and carefully explain my reasons for ruling against the ministry. I want to make it clear that I do not accept the shaken baby hypothesis as valid and I must review all the submissions on that score made by the defence. This has been a steep learning curve for me. I came into this trial believing that shaken baby syndrome was good science. I finish the hearings convinced that it is a tragic and damaging mistake and it is my duty to try prevent it as a basis for removing more children. So my written reasons must be very sound.
    I have no doubt that the social workers sincerely believed that the doctor was correct in saying this was a non-accidental injury. What I cannot understand is why they persisted with this case against all reason, when the evidence became increasingly unreliable. Some of the behaviours of the social workers were appalling and inexcusable. They appear to have no idea about appropriate evidence and seem to be just in an adversarial contest, which they must win at all costs. The best interests of the children seem to be the last thing they think about. What I am finding difficult at present is how to make very critical comments of the director and his staff, while still staying within appropriate judicial boundaries. I think I will seek a consultation with fellow judges on this. Finally I want the courageous struggle of the Baynes not to have been in vain. If this verdict can help other parents who are wrongfully accused, then it will not have been for nothing.

  3. What really sticks out in this is the following:

    "When I ruled that the cause of injury cannot be inferred from medical evidence alone, I knew that I had virtually disqualified Dr.Colbourne’s testimony and that I had gutted the director’s case."

  4. Ray Ferris:

    Call me naive or idealistic, but I wouldn't necessarily assume that a government employee will "go down firing" (Polak), or get "promoted to a higher paid sinecure" (Bruce McNeil) because they chose to be, respectively, ethical, or unethical.

    The times they are a-changing. There is a kind of revolution in the air, whether it be travellers objecting to their junk being touched, or "rogue" MLA's who are suspended from Tory caucus for assailing their premier, cabinet, and Alberta Health Services over their handling of health care.

    It is anything but clear that corruption is so deeply embedded that it goes without saying that vice will be always be rewarded and virtue inevitabley punished.


    "Corruption is nature's way of restoring our faith in democracy.”

    - Peter Ustinov

  5. I think in clearcut cases where the Director is not complying with their mandate, a complaint made to the Ministry or Deputy may be addressed. In one case I am aware of, a letter from the Minister's office was sent to the Director to ensure staffers worked with the complaining parent. This was a CCO matter that was reversed. It is a matter of communications skill in crafting a letter, but you must leave the rage out of it.

    Where there is a clear risk of embarrassment of the Minister's office by underlings, I'm sure the Director would not be affected. However, the Director would be requested to make sure the people under him do their jobs -- those are the people that are more expendable than the Director. Those people are also at risk of being "promoted" to, say, the nether regions of B.C.


I encourage your comments using this filter.
1. Write politely with a sincere statement, valid question, justifiable comment.
2. Engage with the blog post or a previous comment whether you agree or disagree.
3. Avoid hate, profanity, name calling, character attack, slander and threats, particularly when using specific names.
4. Do not advertise