Saturday, January 8, 2011

BREAKING NEWS on SBS /Part 413 / For Love and For Justice / Zabeth and Paul Bayne

BREAKING NEWS: PART 413 I can't help myself. I already had written a post for today and it, Part 412, is found just below this present entry. I hope you read that too, but right now something of great significance must have your attention. It may or may not presently affect the Bayne Case as the judge concludes his writing of the decision for their case. This piece of news concerns Shaken Baby Syndrome and it's validity as a justifiable cause for action taken against givers of care to a child who has either been injured or dies from injuries that have heretofore been classified as categorically attributable only to SBS.

Dr. Charles Smith at Goudge Inquiry / photo:Adrian Wyld
I was alerted late last night in an email as well as by a comment to yesterday's blog post 411 that a hugely significant legal statement about SBS had been made in Toronto yesterday and I want you to read it. I want Judge Crabtree to read it. I want all parents who have similarly been either charged with or wrongly suspected of SBS to read this. I want Mr. McNeill to read this and legal counsel Finn Jensen to read this and Mr. Loren Humeny and Mr. Berhe Gulbot to read this. While each of these people may have acted in good faith within the authorization of their respective roles, each must now conscientiously begin to explore the possibility that the SBS diagnosis as a blanket or conclusive explanation for the classic triad of injuries is no longer unquestionably valid and perhaps not at all. There are too many other possible medical explanations for the same set of injuries. That has been the Baynes' contention from the start. They had to work against all odds to locate and to subscribe the medical opinions of ten reputable medical experts to contest the initial SBS diagnosis. That should have been MCFD case workers' jobs. It should have been a concern of Mr. Jensen to verify before taking twenty-two days in court to argue it as reason to keep three children from their parents forever, two of the children not even being the subject victims of the SBS allegation.

So here is the news that broke yesterday in Toronto. This excerpt from CityNews.

Both the Crown and defence lawyers are seeking an acquittal for a man they believe was wrongly convicted of his baby’s death nearly two decades ago, based on evidence presented by the now-disgraced Dr. Charles Smith. Smith testified 19 years ago that Dinesh Kumar’s five-week-old son Gaurov died of shaken baby syndrome. At the time Smith was lauded as one of the best in the field of child pathology, but is now disgraced following the findings of a 2008 Goudge inquiry into his work. Smith’s conclusions in the case are no longer scientifically valid. Kumar, originally charged with second-degree murder, is represented by lawyer James Lockyer, who says his client agreed to pleaded guilty to criminal negligence causing death to avoid deportation to India. The Crown and defence have filed a request with the Court of Appeal for Ontario to have the conviction set aside. A hearing is scheduled for Jan. 17.” The handwriting is on the wall – plain enough to be read by everyone. Do not be confused by some medical term modification, from SBS to Non Accidental (traumatic) Injury. Given the variant opinions, it must not be assumed that same triad of symptoms automatically implicate guilt of parents in willfully harming their child. With respect to the Kumar story, some conflict appears. One news source tells us that "The Crown also says it “does not accept” criticism that shaken baby syndrome is a discredited theory. It remains to be seen whether the court will" (Toronto Star).  Another source says, "Crown attorney Gillian Roberts writes in court filings, '... the medical evidence on which the case was based in 1992 reflected the prevailing views of the day” (Hamilton Spectator, Alison Jones).

Now the fact is that the affidavit submitted by the Director of MCFD Fraser Valley Region and written by one of his social workers, states clearly that MCFD action is based in the Bayne Case upon the SBS diagnosis of a Children's Hospital pediatrician. It was inevitable that one or more such cases as the one cited in the news article would eventually come to light and would change opinions. The Bayne Case should be the next one. Judge Crabtree delivers his decision within nine days (Jan 19 at the latest).

It's now 8:22 am and I have just located a fuller account by Globe and Mail writer Kirk Makin, written yesterday. From it I have taken these sections."In a court document unsealed Friday, Crown counsel Gillian Roberts said that changes in medical knowledge about infant brain injuries have seriously undermined Mr. Kumar’s conviction. She said that in view of medical controversy that surrounds the notion of shaken baby syndrome, 'no reasonable jury could convict the appellant of any form of homicide in relation to his son, Gaurov....the prevailing understanding of that medical knowledge has changed. '
In fact here is an entire Google page of indexed references to this story. Twenty two additional news sources, some from same network or authors.
Related CityNews Stories
Charges Withdrawn In Child Death Case Involving Pathologist Dr. Charles Smith
Man Wrongly Convicted Of Killing 4-Year-Old Niece Paid $4.25 Million
People Wrongfully Convicted On Testimony Of Dr. Charles Smith To Be Compensated
Woman Acquitted In Infant Son's Death
Disgraced Pathologist Apologizes For "Mistakes"


  1. This news is coming just at the perfect time. How can Judge Crabtree possibly not take this into account. If he sides with MCFD, he will be aligning himself with the likes of Charles Smith, who the media rightly describes as "disgraced." I don't think any judge wants to be in that position, now, or in 22 years from now.

    And all this just shows what enormous injustice can be caused, and cured, by just one man, or woman.

  2. There are some other news items today which invite comment, but before I get into them I want to make a commnent on the Bayne case. Judge Crabtree has a simple and straightforward task ahead of him and it does not matter if he reads the new judgement or not. All he has to decide is if there was a non-accidental injury to Bethany Bayne, or not. His task is made relatively easy by the total lack of factual evidence. He has to ask himself one question. Is the evidence clear and compelling? In fact he has only one piece of opinion evidence to go on and that opinion is much in dispute by qualified experts. You cannot make a continuing care order on one piece of opinion evidence. The judge himself has not even accepted the principal witness, Dr. Colbourne as an expert witness. I am not sure whether or not he has yet ruled on this challenge by Doug Christie. The other outstanding medical issue is that he has already ruled that the cause of injury to Bethany cannot be inferred from medical symptoms alone. As the opinion of Colbourne and the whole case of the ministry is that there was a specific deliberate injury by shaking, it would seem that Judge Crabtree has already knocked the bottom out of the director's csse. Unless he inexplicably reverses his rulings, the ministry has no csse. Anything short of powerfully compelling evidence is bound to result in denial of the director's quest for a CCO. The only feasible alternative is an unconditional return to the parents. No indeed! I would say that the judge decided months ago that there will be no CCO.
    If that is the case, then why is he taking so long to deliver his judgement? Thank you. I am really glad you asked that question. There are three main reasons why he is taking so long. The first reason is that he can't help it. He is a creature of the legal culture. He has been steeped in all the traditions of the courts and the law for so long that he is no longer aware of it. He is a slave to process, because that it what good lawyers and good judges are trained to be.Stick closely to all the niceties of process and truth and justice will prevail--eventually. The second reason is because he must have been just as appalled as Doug Christie, myself and anyone with any regard for the most rudimentary rules of evidence. He must have been fascinated to listen to the nonsense that that the ministry introduced as evidence. The gossip, hearsay, scuttlebut and rumour. He was very restrained (must remember proper process you know) but even he had to issue a mild remonstrance during Humey's testimony. (Testimony, but certainly not evidence.)I think that he must be thinking long and hard how he will comment on how the director has conducted his case and in particular the time-wasting tactics of ministry counsel. I hope he will spell out in clear terms why a whole lot of what the social workers have done in court is a complete waste of time and public funds.
    The third reason is that he is dealing with far more than making a ruling on the Bayne case. He must surely be aware that he is about to deliver an important judgement, with effects much more far-reaching than the Bayne case. The whole shaken baby syndrome hypothesis was on trial in this case and this is not the first time that it has happened. This case is being monitored nationally and internationally and the judgement will have impact. As chief judge he will have profound influence on future shaken baby cases in this province. If he brings the SBS hypothesis into disrepute there will be serious political consequences. You can bet your boots that the good judge is going over every document and every piece of research with a fine tooth comb. He must know as well as anyone else that this is a director and a ministry who will seize on the slightest pretext to launch a long and expensive appeal. He wants to make sure that it cannot happen and he is treading very, very carefully. After three years before the court, I do not think the extra time matters neearly as much as ensuring a sound outcome. Continued

  3. Ron; today I am chipping in for a second time, but you can post it tomorrow if you prefer. Two news items came out today. One waa about an alleged infant shaking in an Ontario daycare. This time a 14 month old child. Murder charges are pending. It will be interesting to see how this one progresses, because Ontario is the Province where the SBS hypothesis has been most discredited. In fact I was under the impression that SBS was no longer to be used in criminal actions in Ontario. Can anyone correct me on this?
    The second case is another child injury case in Saanich in the Greater Victoria area. A four year old child received severe head injuries in a placement made by the ministry for children and family development. The YCR is onto it already. Even though there is only minimal information available to the media, there is enough to point strongly to another MCF screwup.
    Child was born to an addicted mother and removed very early and has suffered multiple placements. At four years of age the youngster is still kicking round the courts and no long term plan is in place. No wait. That is not quite accurate. The plan was for adoption in the home where the child was injured. Well you know accidents can happen in the best of homes, so let us not be hasty to blame anyone. There is unfortunately little room for speculation. The hospital said that it looked as if the boy had received a beating and he is in intensive care. The other difficulty is that the maternal grandmother had been visiting the child in the foster/adoption home and she had repeatedly complained to the social workers that the home was not safe and there were too many undesirable characters coming and going. Implication that it is frequented by a criminal element. Grandmother was given repeated assurances that the social worker was monitoring things and everything was just hunky-dory.
    Now it seems all the other children in the home have been apprehended, so maybe we will have to redefine hunky and dory. All this begins to look rather bad for Leslie and Mary. Better get some good spin going Leslie, you are going to need it. Right now you could use a little friendly help from Mary-Ellen, but you have not been very helpful to her have you? In spite of the fact that privacy concerns forbid the ministry to discuss this case. They cannot even reveal the name of the grandmother lest it invade somebody else's privacy. No matter, by now all the reporters know how to reach her. In spite of all this we can track the following.
    1. The kid has been in care for four years without a plan. If the mother was an addict, the chances are the kid would need a permanent home. Well that's okay.
    2.They probably had an airtight case for a one year order in three month bites. If they got on with it following proper timelines, the last temp order would expire when the child was 15 months. At that time there would have to be a continuing care order, or a return to mum. If momma were to come up clean and sobre she had a year to do it. Fair enough.
    3.Looks like nothing like this happened does it. Apparently relative placements had been tried and failed. However, this should not stop the progress towards a conintuing care order. What does it look like? Lack of planning, lack of focus and incomptetent drift. That is what it looks like.
    So grandma had warned them and warned them and she was obviously someone who tried to monitor the welfare of the boy. They brushed her off as a meddling old busybody. They did not take her seriously. Oh how they are regretting it now!!! Who was really responsible and who will get the blame?
    4.This is going to make interesting news in the months to come. Wait for the report from Mary-Ellen Turpel-Lafonde and be prepared to admire the scintillating spin from the deputy minister. It would be entertaining if it were not so tragic.

  4. What kind of comment can be made? Absolutely unconscionable. The provincial government is ultimately at fault in that they have done NOTHING TO STOP THE WAY THE MINISTRY IS OPERATING as displayed in Ms. Turpel-Lafonde's report. All this in an effort to avoid looking bad. Isn't it better to actually do what is right? If you actually do what is right and end up looking bad, then at least you have your integrity to back you up.

  5. I'm afraid not much has changed regarding alleged SBS cases when it comes to children protection services . Criminal court is quite another matter. In the latter at least you have a chance to prove innocence. Even if you win in criminal court you still have to prove your innocence in family court where hearsay, opinion, and third-party testimony is allowed. However the medical establishment should be held accountable for perpetuating the myth of SBS. Ontario medical, courts, and children protective services were put on notice in Ontario to stop and desist with SBS in 2008. Did they stop? Not quite, the medical establishment just renamed it as something else e.g. sudden impact syndrome etc.


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