Friday, April 1, 2011

CHRISTIE'S FINAL SUBMISSION installment 3of10 Evidence and Offender Profile / 491

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 third 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. No ban was placed court presented material. The judge considered this submission in coming to his final conclusion presented on March 2, 2011.

Yesterday it was Submissions and Analysis points1-4, Today it is points 5-7 ….

5. Evidence should always be the underpinning of child protection social work. Social workers in this field should always remember that they get their mandate under the Child Family & Community Services Act and that they are ultimately accountable to a court of law for any child removal. It is thus important that they be trained to know the difference between good evidence and bad evidence. The difference between fact, hearsay and opinion. They deal with so much subjective material that they often lose sight of the need for objective assessment and we see this over and again in the testimony for the director. Intuition, gut feeling and opinion unsupported by fact have no place in a protection hearing. It is not good enough to say that he didn’t like the parent’s attitude, or she was not co-operative. On the other hand if you go into a situation where you can see squalor, scabies and headlice and where the kids seldom go to school, you have some hard facts. When one has hard convincing evidence, one does not need devices such as a risk assessment. The risk assessment is in the evidence.

6. Profile. If we are to accept that the cause of an injury cannot be determined by medical evidence alone, then how can one differentiate between accidental and non-accidental injury? The answer is that there must be reliable factual evidence. There must be eyewitness evidence, or some other form of direct evidence. As has been stated by different medical experts and by Goudge, it becomes a legal matter and not a medical matter. One of the ways of making this determination is to study the profile of the suspected offender. If there is a history of violence, drug addiction, crime, or marital strife and especially frequent previous injury, then the possibility of deliberate injury increases. People get injured all the time and in the vast majority of cases, this is by accident. Most people are reliable witnesses to their own injuries. With young children it is different. They too suffer frequent injury and it is mostly accidental. People with normal social profiles rarely deliberately inflict injury on their children. So doctors don’t usually question the stated cause of injury without very good reason. The Baynes obviously have a profile, which would make it very unlikely that they would ever harm one of their children and this must have been apparent to the director and his staff. This would then put them into conflict with Dr. Colbourne and would face them with a dilemma. It seems that their method of resolving the dilemma was to re-invent the family profile by using every device to smear and defame them. By means of the “risk assessment” and other evidence, they hoped that their blatant and clumsy efforts at defamation would convince the court. We will review how this was done.

7. Mr. Finn Jensen QC made a very lengthy summary for the director. He revisited the evidence in great detail. He examined every medical report in minute detail and tried to find fault. Frequently repetitious. We do not think that it is necessary for us to respond to him in like detail. While we recognise that it is expected that each side will interpret everything in a partisan fashion, we do not think that it is necessary to go to the lengths of Mr. Jensen. Your honour has sat through many days of evidence and you have access to all the transcripts and your own notes. I do not think that you need a great deal of direction from us to come to your own conclusions about the validity and weight to assign to each piece of evidence. The director, through his counsel, has made many arguments. Some of these are spurious and some disputive, but unpersuasive. Because it is expected in the court process, we will address several of his arguments, but we prefer to group them and not to repeat ourselves by dealing with them one by one. A summation of the evidence will show that the director’s case rests solely on one much disputed medical opinion and comes nowhere near providing the compelling evidence required to justify a continuing care order. Indeed there is inadequate evidence to justify the length of time that the children have already been in care.
To be continued.........................


  1. Ron, we appreciate all the thought and time going into these posts and thank you so very much for the effort you continue to make on behalf of Justice and Righteousness and on behalf of friends and families.

  2. Ron,

    Are you able to give us an update re: the hearing regarding Josiah which was to be held today?

    Thank you very much for the highly informative information re: Doug Christie's submissions.

  3. 1 of 2 Presentation Hearing today - summary
    The hearing went on today as scheduled with Mr. Doug Christie in attendance and Mr. Dean Tate representing MCFD.

    This was in a smaller courtroom #314 with less seating capacity. It looked as if there were about 14 Bayne supporters, and one bench filled with several social workers/MCFD all-day observers. (Don't these people have work to do?)

    Both Paul and Zabeth testified, as well as the removal social worker from Chilliwack Loren Humeny, and the current social worker from the Surrey Guildford office, Matthew Walker.

    Humeny rehashed past trial testimony. He was "under orders" remove Josiah. Matthew testified next to say he did not think downgrading the removal to a supervision order was appropriate.

    Paul testified, addressing his omitted testimony from the trial. He displayed photos of the home using his laptop computer while on the stand which was generously allowed by the judge. Paul submitted a CD of about 60 photos for the judge as "Exhibit 2."

    A Parental Capacity Report produced by Ray Ferris was thrown out due to vehement objection by Mr. Tate. Although the Ministry produced an affidavit that very morning that was entered, Christie was not accorded the same privilege with the PCA.

    Christie pointed out the Ministry previously allowed the parents to live with their two boys for six months (before a TV news show upset MCFD and they removed the boys in retaliation), so, Christie reasoned, given the same zero evidence of harm, so what was the difference with Josiah using the same supervision arrangement now?

    Christie was in fine form this day. He stated the many concessions the family was willing to accept should Josiah be returned. They would accept random visits by MCFD, the PCA and Project Parent would be done, the several other parenting improvement courses were underway, they would accept a 24-hour live-in nanny, daily Ministry checks on Josiah, friends would help. Christie further pointed out the slightest violation of any terms the Ministry would instantly snap up the child anyways.

    The judge did take exception to Christie mentioning that one special needs child which Josiah is classified, pays the foster parents $2,500. Also that the 50+ aged foster parents hired a live-in nanny to care for the four children. The question went unanswered as to whether or not the designated foster parents were even around at all times to care for the children.

    The unspoken answer to the question of allowing supervision was that such a decision would be seen as undermining Crabtree's order and MCFD's entire game plan of keeping ALL children in expensive care for as long as they wished.

  4. 2 of 2 Presentation Hearing today - summary

    The male judge (I didn't catch his name) reserved his decision, which will be written before Thursday April 21st, at which date the parties will appear before the judge for further direction and possibly a date for a protection hearing.

    This outcome today (or lack of) is unusual, in that generally the decision at this type of summary hearing is pronounced immediately. There is rarely a basis on which to take two or three weeks produce a written decision.

    Generally speaking, MCFD only needs to meet a tiny threshold of evidence and any difference in facts is always found in favour of the Director.

    The day ended at 3:35 PM, so there would have been plenty of time for the judge to read Crabtree's judgment and render the decision.

    The choice left with this judge was an interim order to allow MCFD to keep Josiah and stick with the current supervised access regime, or to return Josiah under a supervision order. The latter choice would open the door as to why the other three children should not then be returned. It's "right" and lawful, but it makes MCFD and Crabtree look bad.

    Presentation Hearings are against parents 98% of the time, so the Baynes are hoping and praying they fall into that 2%.

    In this case, it was abundantly clear Josiah suffered no injury and that there was no evidence of injury.

    Mr. Tate stated that there existed the "possibility" of danger stemming from the unknown/unexplained/non-accidental cause of Bethany's injury 3-1/2 years ago.

    Doug Christie put a very convincing argument that there was not an ounce of evidence produced by MCFD. Meaning, if the court does not follow the law, and chooses to make an error of law in order to save face (again) it would be appealable.

    MCFD lawyer Mr. Dean Tate response was that Judge Crabtree made the decision to retain all three children, even though there was no evidence, unexplained or otherwise, regarding the boys.

    Mr. Tate further explained that the opportunity for Crabtree was clearly there for him to return just the boys but he chose not to. Therefore, Mr. Tate argued this judge (unspoken, was "junior judge") should follow suit and keep Josiah in care along with his three older siblings. His only rebuttal was to clarify the many injuries to the children (not including the car accident Josiah was in) occurred in "other" foster homes, not the current placement.

    It should be noted Mr. Dean Tate is the fellow lost an appeal on the far more contentious Rahman shaken baby case (2009 BCSC 1073 / E083988 Vancouver) to Mr. Rob Hamilton.


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