Yesterday I quoted Mr. Christie's Submissions and Analysis points 8-10. Today it is....pts 11-14 beginning, "From the start of their experience with the Hope staff, the Baynes experienced aggressive behaviour."
Submissions and Analysis, continued ….pts 11-14
11. "From the start of their experience with the Hope staff, the Baynes experienced aggressive behaviour. Their first lawyer advised them that the only way to get back their children was to agree to mediation. This was dubious advice, because the Baynes were in direct opposition to the ministry. The ministry said that they had deliberately injured a child and the Baynes emphatically denied it. The correct position was to say that they should go to court and prove it. What was there to mediate? They discovered that the ministry position was simply that they must admit shaking Bethany, or there could be no progress in mediation. Clearly with such a huge imbalance in power between the parties, mediation becomes incongruous. They also discovered that when there is an adversarial and hostile stance by the social workers, every tool becomes a weapon. This holds for mediation, the CF&CSA risk assessment, parental capacity assessment and so on. The director must win this case or live with the result."
12. "Sept 21st summary by Mr. Jensen. We will not respond item by item in the order with which Mr. Jensen raises them, but rather by related topics. First in discussing the British judgement and the testimony of Dr. Geddes on hypoxia and its potential to cause retinal damage, Mr. Jensen reminds us that hypoxia is just a hypothesis and that hypotheses can change. He reminds us that a hypothesis is not scientific proof. It is well to bear this in mind, because SBS theory is simply a hypothesis and it is not scientific proof and is probably on its way out. Mr. Jensen tries to steer the court away from relying only on the triad and emphasises that the diagnosis was a result of teamwork. This is all very well, except the written report of Dr. Colbourne declares that it is shaken baby and she made no differential diagnosis. She was much criticised for this. Mr. Jensen did some good damage control on the witness stand and got her to define many other differential diagnoses, just as he did with Dr. Gardiner. However, that bias that we talked about in our opening comments was clearly there."
13. "Mr Jensen made long discussions about filing various papers and objecting to the Goudge binder. The Goudge report is available on line and is by now fairly common knowledge. Maybe Mr. Jensen is correct in that newspaper articles are not good evidence. They certainly are not binding evidence, but the article personally written by Mr. Justice Goudge cannot be disregarded. In addition some direct extracts from the Goudge report were included. In any case I think we can accept it by now as common knowledge that the work of pathologist Charles Smith was discredited and along with it the SBS hypothesis. However, Mr. Jensen did us a service in arguing that the court had leeway under sections 66 and 68 of the CF&CSA to accept documents and reports that it considered might be helpful in reaching a decision. This saves us making the same arguments on accepting some of our documents, even though he seems to think that there should be one rule for the director and a completely different one for the Baynes. There is no objection to his filing Grey’s reports from the infant development centre, because they seem to be totally irrelevant to the central issue of this case, which is – “has she any evidence to show that the Bayne’s ever hurt a child?” We also remind the court that any other evidence submitted by Grey can be disregarded because she is not a credible witness. She admitted at the start of her testimony that she had represented herself as a registered social worker, when in fact she was not. She persisted in doing this until the registrar of the college of social workers warned her that she was breaking the law. When she relinquished her registration, she abandoned her duty to abide by the code of ethics of the BC Association of Social Worker. While we are on the topic of filing papers, Mr. Jensen later raises two issues. He objects to the Bayne letters of reference being filed on the grounds that they are only opinion evidence and of no value. Of course the infant development centre papers are only opinion evidence too. The only difference is that they are called reports and not letters of reference. We can soon remedy that by calling the reference letters reports instead. However, the main point is that they are written and signed papers, which the court has full discretionary powers to read and to assign whatever importance is seen fit."
14. "On the topic of references, Mr. Jensen wants to know why none of the referees was called as a witness. He wants to know why Mr. Bayne was not called and why the grandparents were not called. The answer to that is simple and Mr. Jensen played a significant part in the decision not to call them. Mr. and Mrs. Bayne did not call them because they did not think it was in the best interests of their children to call them. The grandparents did not attend the court hearings because they were ready to be called as witnesses. The Baynes would have liked to call several more witnesses, but when they saw how protracted the proceedings were becoming they feared that the case would never end. When adjournment after adjournment seemed to bring the hearing no closer to conclusion, they were desperate to finish and this became their priority. They wanted to rescue their children from limbo. When they got to that last hearing session in August, they decided to finish by August 13th come what may. It must have been obvious to the court that they were trying desperately to conclude on Thursday so that counsels could make their half-day submissions on the Friday. The court could also see how Mr. Jensen dragged out the cross-examination so that the time ran out and it was impossible to conclude on Aug 13th. He managed to stretch it another six weeks. There were two factors. The Baynes were afraid that if they called three or four witness, there might be not enough free court days to conclude the case this year. As it is, matters may run into February. Had they called all their witnesses it could go until June next year. In the best interests of the children it is far better that the court simply reads the letters of reference. They also did not want to impose any more on their counsel and they were increasingly worried about how they could possibly compensate him. It had been in the plan to call Mr.Bayne during the week of Aug 9th to 13th, but when it could be seen how the director was dragging out things, the plan was changed. For one thing all he would have been able to give evidence on was on a non-event. Something that never happened. He never hurt a child. The fact that he may or may not have been alone with a child was irrelevant. Most dads are alone with their children from time to time. So what? That is no proof that they injured them. Mr. Jensen would have to be a whole lot more convincing in order to persuade the court. He had completely convinced the Baynes that they would not finish that week if Mr. Bayne took the stand."
To be continued …...............