Thursday, March 31, 2011

CHRISTIE'S FINAL SUBMISSION installment 2of10 Medical Issues Priority / 490

The case is Paul and Zabeth Bayne in opposition to the application by the Director of Family and Child Services with respect to the ongoing care of the Baynes' three children. This is the second installment in a brief series of quotations from Doug Christie's final SUBMISSION IN RESPONSE to Finn Jensen's closing summation. It was presented November 4, 2010 to the Court (Judge Crabtree) on behalf of Paul and Zabeth Bayne. This is a public document having been submitted to the Court and Judge Crabtree did not place a ban on any of this material. He considered this submission in coming to his final conclusion presented on March 2, 2011.

Yesterday I quoted Mr. Christie's introduction. Today it is....Submissions and Analysis points 1-4

Submissions and Analysis
"1. This is a summary of our case and also it sets out the concepts with which we have approached the evidence and the concepts which we ask the court to accept as valid. The director has filed a complaint that the Bayne children are in need of protection and that the risk of harm to them is so severe that a continuing care order should be made. The onus is on the director to prove these allegations. I think that it must be evident that in order to permanently remove parental rights and to permanently separate a family there must be clear and compelling evidence. If a continuing custody order is made under 41 (1)(d) it is spelled out in section 41 (2) (c), the nature of the injury suffered is such or the risk of harm is such that there is little prospect of the child ever being able to return to the parent. In reviewing the evidence before the court, one must always be asking the question as to whether or not this is clear and compelling evidence.

2. The ministry case rests essentially on the opinion of Dr. Colbourne. This was reconfirmed in the affidavit of Humeny and Grey in their affidavit opposing increased access on June 14th 2010. Without Colbourne’s opinion and report, there never would have been a court procedure and the children would all be at home. Her opinion was that Bethany Bayne suffered a deliberate injury at the hands of one of her parents. She was very specific that the injury must have been caused through shaking the child. It is important to keep this in mind at all times, because there was a later attempt to modify this position and to steer focus away from specific shaking. The shaking was reinforced in later testimony. Dr. Sergeant even mentioned that as the referral came from Dr. Colbourne, that he knew it must be a shaking case.

3. The only real issues in this case are the medical issues. The factual basis of the medical issues is contained in the many clinical examinations reported subsequent to the injury of Bethany Bayne. There is no doubt that she suffered an injury resulting in a subdural hematoma. The interpretation of those symptoms and probable cause is a matter of expert medical opinion, but medical opinion cannot tell the whole story. This becomes a legal matter and not a medical one. It is impossible to tell from medical evidence alone whether an injury is accidental or non-accidental. Goudge and various medical witnesses support this. Dr. Colbourne claimed to be able to tell from medical examination alone that shaking caused Bethany’s injuries. The fact is that numerous medical experts disagreed. Not only did they say that she made procedural errors and came to unwarranted conclusions, but they strongly questioned the whole shaken baby syndrome hypothesis. Logic supports the position that the cause of injury could not be inferred from medical evidence alone, this would seem that the director was left with a very poor case. The crux of his case had been destroyed.

4. We are indebted to the Goudge report for reminding us that a judge is a trier of fact. Not a trier of opinion, hearsay, rumour and gossip, but a trier of fact. This is the salient weakness of the director’s case. Section 66 of the act allows the court to be as informal as the judge may allow and section 68 allows the judge to admit any hearsay evidence that he considers relevant. However, it was not the intention of the legislature that facts should be ignored and cases tried entirely on hearsay. The director has pointed out that the standard of proof is lower in civil than in criminal cases. This does not mean that anything goes. In both criminal and civil courts, facts are facts, opinion is opinion and hearsay is hearsay. This is the salient weakness of the director’s case. It is very hard to find any facts in his evidence that are relevant to supporting the director’s complaint. On the other hand the Baynes have many facts to support them. Not one witness had actually seen the Baynes do anything to harm a child. All was speculation."
To be continued...


  1. It should be noted the one witness the Ministry chose that had ongoing and close contact with the Baynes, Elizabeth Hoffman testified the Baynes parenting was entirely appropriate. They never even saw the Baynes exhibit any anger.

    The judge insinuated in his ruling it was up to the Baynes to have produced witnesses (what he did not say was another two weeks of trial and a further 6-months delay would have been required).

    As Doug Christie points out, the onus is on the part of the director to produce witnesses that support their claim. Instead, the social worker Humaney, in not doing a proper job of interviewing the writers of the Baynes support letters, found an anonymous "witness" that had derogatory things to say about Paul's parents before he was even born that had nothing to do with any of the children. The judge omitted in his ruling the fact he specifically ordered Humeny to produce the name of that source.

    Omitting some of these nitty-gritty details from the closing argument gave Crabtree furhter justification to use only Finn Jensen's closing remarks to justify a finding of protection and the 6-month interim custody.

  2. The more I read, the more I continue to be astounded by the lack of legal basis that would support Judge Crabtree's decision to allow MCFD to keep the children one moment longer.

    That "ten percent" risk quote from another judge basically means any child entering a hospital with a bruise REGARDLESS of the source can be removed for an indeterminent period of time.

    Affected parents know that the ONLY criteria MCFD needs to be concerned with is if MCFD has or will be able to manufacture enough evidence/hearsay that will convince a judge to rule in the end, the children are in need of protection.

    This is just to avoid a lawsuit and any cost recovery action by the parents.

    The Ministry failed in its effort to villify the Baynes, no ifs ands or buts.

  3. There was no word on if the Presentation Hearing (April 1st) will go ahead tomorrow despite the inability of Doug Cristie to attend.

    Is it the intent of the Ministry to show up and force the Baynes to adjourn to make it look like they are the ones delaying proceedings, or will an agreed-upon date be selected?

  4. Thanks for asking re: hearing for Josiah. I have yet to receive confirmation. I will post it here and in a quick blog post.

    *Their first court appearance was seven days after Josiah was born and removed same day, and that was a Presentation Hearing.
    *At that Presentation Hearing the social worker who did the removal presents his/her report. Loren Humeny was represented by Kim Tran who presented the Baynes with Loren's affidavit and it was filed that day with the court.
    *The hearing was adjourned.
    *Then it was resumed next day, and Doug Christie was present, spoke, although the judge really didn't want to allow him to do that, because his objections to this apprehension typically should take place at a Protection Hearing.
    *So now we come to tomorrow, and the Baynes have not been informed what kind of hearing this is to be. According to the CFCSA both parents should have been served notice of the hearing intent and date and time. Christie himself was merely informed about the date rather than consulted. He is unavailable because he has another case. He may have successfully rescheduled it with the MCFD counsel. I have yet to hear.
    *One would think that since the Presentation Hearing has already occurred, that this should be a Protection Hearing, at which the Baynes should be entitled to representation by their lawyer. If it is to be a Protection Hearing, and this has not been properly disclosed, that is a sly, crafty, dirty trick.
    *At the last court appearance the Judicial Case Manager was supposed to call the Baynes' lawyer to find out which dates he was available. She was also to contact Judge Crabtree to see if he wanted to sit on the case and was available.
    *The protection hearing must occur according to the CFCSA in 45 days of the removal of the child.
    *Then that should have occurred by March 27th, unless they will argue that it is 45 week days, then April 1st fits.

  5. I believe the sequence of court appearances is as follows:

    1. First Appearance - Report to Court (5-10 min)
    2. Presentation Hearing (2-6 hr / 1-day
    3. Mandatory Case Conference before Protection Hearing scheduled (1hr no transcripts)
    4. Protection Hearing / Trial.

    A chart from the Legal Services Society shows the steps graphically ( however, at this link it does not show the first appearance stage.

    MCFD currently has had the child in their care without an order. An interim order can only be made at the Presentation hearing, which I do not believe has happened. (Three first-appearance hearings have so-far been conducted.)

    If the lawyer or parents are served with adequate notice of a hearing, they do not have to consult and agree on dates. Otherwise, one side could decide to say none of the selected dates are convenient and delays result. Usually the ball rests with the JCM at this stage.

    April 1st would be the all-day Presentation Hearing. Social workers would take oath and testify, parents would likely not be permitted on the stand, as this is not the time to discern facts, but to determine if the "evidence", if believed, would result in a finding of protection.

    Baynes supporters would find attending this day far more fruitful than the previous three "first appearance" chambers hearings.

    This hearing is where you really see how a kangaroo court operates. Once MCFD gets over this minor hurdle, they can then wait for as long as they wish before acquiring a protection hearing date.

    The obvious anticipation at this stage of the game would be that long before a protection hearing date is acquired, the PCA and services will have been done and MCFD will be well on their way to winding down their involvement.

  6. Which courthouse / courtroom will the hearing be held in, regarding Baby Josiah?

  7. JOSIAH HEARING - No word at this moment. Keep checking the blog today or this evening I will have word.

  8. The word is that Doug Christie will fly back from Ottawa tonight in order to be in court tomorrow morning. He cut of his other hearing. What a guy!!

    Are you able to attend the Josiah Hearing tomorrow?

    A full day hearing begins tomorrow at 9:30 AM at the Surrey Provincial Courthouse at 14340 57th Ave. Public underground parking is off 57th Ave beside the Court. Hearing will be on the second floor. Social Worker Loren Humeny will be on the stand. Baynes' lawyer Doug Christie will be on hand to cross examine.


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