Sunday, February 27, 2011

THURSDAY-COURTROOM REPORT - Installment #9 / Part 458 / For Love and For Justice / Zabeth and Paul Bayne

When Justice Kimberly Arthur-Leung was making clear to counsel Doug Christie what precisely she was in court to do with the case before her and how her intention differed from his objective which was to argue against the removal from Paul and Zabeth Bayne, of the newborn child, Josiah, she cited the Act, that is, the Child, Family and Community Services Act (CFCSA). 

She made the point that she was in court on this day for one purpose only and that related to the safety of the child Josiah Magnus Ider Bayne.

In other words, in spite of the fact that she did permit Mr. Christie to express himself on behalf of his clients, Mme Arthur-Leung was not really prepared to listen with a view to acting upon what he said. She was there simply to concur with the MCFD's concern about the child's safety without investigating the foundation or credibility of those concerns. Such examination would be for a different day. On this occasion she would facilitate this removal to insure a child's safety regardless of the validity of the claims against the parents. That's a bit overstated. I am at a lost to nuance her purpose. She would take the word of the social worker who acted for the director because that would seem the most certain route to child safety and it was certainly the easiest. It facilitated the processing of the over 100 cases listed outside the court room.  This was not the occasion for contest but for facilitation of the order needed to hold the child in care. Mr. Christie was expressing consternation over the fact that although the Act allows the Director without a court order, to remove a child if the director has reasonable grounds to believe that the child needs protection and that either the child's health or safety is in immediate danger, or there is no other less disruptive measure that is available to adequately protect the child, this did not apply to Josiah, the son of Paul and Zabeth Bayne. Josiah was a little over a week old when he was removed. He had been in supervised natal care in hospital. He was removed from the hospital. The reason for his removal was tantamount to a fabrication.

In fact, the affidavit stated that “the child was removed in accordance with the following: section 30 of the Child, Family and Community Service Act in the following circumstance(s) as described by section 13 of the Act: the child has been, or is likely to be, physically harmed by the child's parent, and the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care. Further, the child was removed under section 30 because there was no less disruptive measures available to insure safety.Well, that's what the affidavit said, but it was not accurate.

I ask you, knowing what you now know about the Baynes, is that paragraph true?

The Baynes have made provision for their children. Their home has been ready for three and a half years to accommodate and to serve their children. Rooms, beds, closets, toys have all been in readiness and in fact, in use during Saturday visitations. Since Paul operates an evening janitorial business with numerous contracts, transporting the children to and from school or to appointments during the daytime would never be a problem. They are in readiness for newborn Josiah in every way as well. And, given the possibility of their startling reintroduction to caring for all of these children if Judge Crabtree grants that on Monday, they have a large network of trained professionals and volunteers who will assist. A care plan for the new child was submitted by the Baynes to MCFD, and Judge Arthur-Leung was shown this as well. To no avail. The baby remains for now in Ministry Care in a Foster Home, fortunately the same one where his siblings reside. He is in good hands there. I suppose Her Honour was effectively deferring to her superior, the Chief Justice Thomas Crabtree. He will tell us his verdict about Kent, Baden and Bethany on Monday, Feb 28th. The conclusion of Josiah's fresh saga is pending as well.


  1. In on and on ongoing Bayne's unbearable mental torture the facts, evidence, laws, rules, human, constitutional rights, health and lives, honesty, integrity, fairness and so on are totally irrelevant. I will proudly accept all responsibility for inciting any act of Civil Disobedience. For example people willing to be on March 3 arrested for THE TRUTH AND JUSTICE can after the final order "all rise" stay sitting and shout SHAME!!! SHAME!!! SHAME!!! until being forcefully escorted, probably to the Surrey Pretrial Center, and jailed until Monday afternoon. Someone can certainly think about something more efficient, please do so!

  2. section 30 of the Child, Family and Community Service Act in the following circumstance(s) as described by section 13 of the Act: the child has been, or is likely to be, physically harmed by the child's parent,
    Pretty sure that is the main concern due to Bethanys serious injuries as an infant.
    Whether they provide rooms, beds, closets or toys has little to do with the safety of a child. They may be willing to care for all 4 of their special needs children but can they? Glad to hear there is some support for them. They will need it.

    Today I am going to play a game of make believe. I am going to imagine that I am a very conservative judge preparing a judgement on the Bayne case. I say to myself that people do not realise how tough this family court stuff really is. Criminal court is a romp compared with this. I have to consider the law, the interaction between the child protection system and the judiciary. Not only do I have to consider the evidence, but I also have to think about the political consequences of my ruling.
    The politics alone are a bain. I think that all judges must take a great deal on trust. With such long delays between presentations and hearings judges must trust in the competence and integrity of the ministry staff. If they did not, they would have to spend more time on presentations and interim access hearings. They would never get through their lists. I know that some people argue that more time at the beginning would save court time in the long run, but not with present court situation. I have heard that some of my brother judges may return children to posssibly risky situations because of the long delays. They may have lost trust in some ministry staff. Should I rule against the director I could seriously undermine that trust and I want to avoid that if possible. I know the news media are waiting for my judgement. They will feast on this case, whichever way I rule, so I shall just forget about them. If I return the Bayne children, there will be very uncomfortable consequences for the whole ministry, because so many people have condoned the action of the director and the social workers. So I must try as hard as I can to support the director’s case. I doubt whether the Baynes are unfit parents, but I must consider the greater good. ( “Greater good” is a term used by people who want to do the wrong thing and convince themselves that it is for the right reason. Eg invading Iraq, etc.)
    I must consider the law. It is too bad the act locks one into so many things and wastes so much time. The courts are so clogged that it is almost impossible to proceed at a reasonable pace and it is all very well to have guidelines that are almost impossible to follow. I hate when people remind me of section 4. How can I possibly enforce it? The allowance of hearsay took far too much time in the case. Between the law and the court scheduling, I really do not see how I could have moved this case ahead faster. One just has to learn to live with ignoring unrealistic guidelines, even when the guideline is the best interests of the children.
    To Be continued

  4. Make believe conttinued
    Now to consider the evidence. This really puts me in between a rock and a hard place. This case is about one issue and that is the evidence of Dr. Colbourne. When two social workers restated that in their affidavit at the last access hearing, they did the defence a favour. This made it difficult to consider anything except medical evidence. It is obvious that had Colbourne not given her opinion when she did the case would never have started and all the children would now be with the parents. All the other evidence becomes of no consequence if the medical evidence fails. It can be supplementary to the medical evidence, but it cannot prevail on its own. Whichever way I rule, I cannot escape dealing with the shaken baby issue. If I rule against the director, I must carefully address all the evidence given on both sides and all the medical research I have read. I must address every minute point raised by the prosecution and the response of the defence. I must in effect rule on two things. If I reject the reject the shaken baby syndrome theory as valid, I must reject the evidence of Dr. Colbourne, because most of her opinion is based on it. Also I cannot reject her evidence without rejecting shaken baby theory. I have to be very careful on this because it could cause quite a stir. The children’s hospital staff will not be pleased as their other cases will be threatened. The Children’s minister will not be pleased, because she has put a lot of money into funding training in SBS issues.
    On the other hand, If I grant a CCO I still have to do the same work. I must fully support shaken baby syndrome theory with detailed reasons. I must go through all the defence evidence and all the arguments of both sides and I must give reasons for rejecting the evidence of the defence experts in great detail. I must virtually reject the findings of the Goudge inquiry, and reject all the latest research by medical and biomechanical experts. I will probably be looked on as a dinosaur and I may get roasted in the news media. On the whole I just see too many hurdles to overcome to rule in favour of the director. It is an overwhelming task. Whatever I rule it will put the cat among the pigeons, so I may as well go what is best for the family. I do not believe for one minute that the Baynes would every hurt a child, so I will do what is right and obvious and return the children.

  5. Does anyone know what section of what Act the Ministry lawyer quoted to support the argument that the Surrey courthouse was the proper jurisdiction, rather than leaving it in the jurisdiction where Judge Crabtree would be ruling?

    Also, can the jurisdiction issue be appealed? What the issue of jurisdiction the subject of an Order? What, if any, Order(s) were made by judge Arthur-Leung?

  6. Hello Anon 9:22 AM Feb 28
    First, It was not the lawyer but the Judge herself who insisted upon the surrey jurisdiction being the appropriate one and she quoted from CFCSA, and she was correct as I understood it since the statement applied to the location of the birth but particularly the residence of the child in question.
    Second, the jurisdiction won't make any difference as I see it, since Judge Crabtree has agreed to listen to the presentation hearing for the baby's custody, and that will one would think in a Surrey courthouse (jurisdiction).
    Third, Judge Arthur-Leung made not Order(s) but merely set next Thursday, March 3 at 9:30 AM as the court date during which a date would be set for the presentation hearing where Crabtree would preside. That means that we should assume that Judge Arthur-Leung or another Surrey judge will preside.

  7. Ron,

    Thank you for your response. Can you tell me what section of the CFCSA she quoted from to support the assertion that the jurisdiction MUST be Surrey (because the child was born there), or better yet - if you possibly can -please copy and paste the section of the CFCSA that deals specifically with this. I just can't seem to find this section.


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