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...