Lawyer Doug Christie's final SUBMISSION IN RESPONSE to Finn Jensen's closing summation was delivered on behalf of the Baynes on November 4, 2010. Yesterday you read points 15-17 and today in Christie's own words, it is.... Submissions and Analysis, points 18-20 beginning, "First the testimony of team leader Mr. Berhe Gulbot." This is the seventh installment in a brief series of quotations from this public document.
18. "We wish to continue with looking at the non-medical evidence. First the testimony of team leader Mr. Berhe Gulbot. Mr. Gulbot spent a good deal of time on the witness stand going through a record of the process that they had gone through. This was mostly factual and uncontroversial, because it simply dealt with times and dates and places. He acknowledged that the case was principally medical. His testimony threw little light on the case one way or the other. He had never seen the Baynes harm a child and he had never spoken to anyone who had. He did acknowledge that he knew that Dr. Colbourne was a firm believer in the shaken baby syndrome theory. He also acknowledged that he and Loren Humeny had taken training in it and that they both believed it was true. Based on their belief in the reliability of Dr. Colbourne’s medical opinion that Bethany had been shaken, he concluded that Mr. and Mrs. Bayne must be liars. He had to make one amendment to his presentation evidence under cross-examination. He had originally stated that Baden had at one time sustained unexplained injuries. He admitted that this was erroneous and that the doctors had explained that the boy had a medical condition, It is demonstrated that Mr. Gulbot already approached the Bayne family with some strong prejudices and was predisposed to interpret everything they said or did in the worst light. This being so obvious, we maintain that his evidence should be given no weight."
19."Loren Humeny and Risk Assessment. It is important to address the issue of risk assessment, because it recurs from time to time. The risk assessment device is simply a form to fill in. It is a means of recording the social worker's opinion about a client in various areas of social functioning and it organizes that opinion on a rating scale. There is no requirement for rigour or discipline as to how this is done. The social worker does not have to support any of the opinions or ratings with factual evidence. The document has no validation in any social science or by any means of research. It has no value as a forensic tool. It was originally devised for use with people who had addiction problems in order to help them evaluate how they were doing in various aspects of their lives. This is essentially a tool for self-assessment and was never intended for any other purpose, certainly not a means by which to determine whether someone was a risk to be injurious to a child, or whether someone was a fit and safe parent. Because of the extremely subjective nature of the device, it should never be used in a court of law. The testimony delivered by Loren Humeny confirms the danger of this document form. When he set about doing the risk assessment, the case had already been before the court for 18 months and the ministry was in an extremely adversarial position with the Baynes. One cannot get more adversarial than asking for a CCO. It was evident under cross-examination that the risk assessment was being used as a weapon for character assassination. Even with no evidence to state, Humeny could not give them any positive marks. Over and again he kept on presenting insufficient information. He had been the Baynes' social worker for 18 months and he did not know the first thing about them. He had never taken the most basic step of making a home visit. This is one of the most elementary tools of the protection worker. When filled in by a resolute adversary it must be plain that the assessment can have no validity whatsoever. The hostility of the social worker was especially spelled out when it came to page 35 of the assessment, which is to state the strengths to be worked with. It was blank. Under cross-examination Humeny was shown a number of achievements by the Baynes but could hardly admit that any of them was a strength. One wonders why such a blatantly hostile and shoddy piece of work could be seriously entered as evidence. It did great discredit to the worker and it brought just as much discredit to Mr.Gulbot who had signed it off and to the director who had approved submitting it as evidence. There was also one more piece of evidence that showed Mr Humeny in a very poor light. The matter of a previous intake on Baden. A doctor had reported that his bone structure indicated signs of abuse and a protection investigation followed. Following consultation with various specialists it was determined that the first diagnosis was erroneous and that the lad suffered from a medical condition. The ministry social worker gave the Baynes a letter confirming that they were completely cleared. In spite of being shown this, Mr. Humeny continued to insist that there was an unexplained injury and he would stick with the first diagnosis This is obviously a very hostile approach and what is of great concern is that he was fully supported in this type of testimony by the director and others. By putting this witness on the stand, the director had managed to discredit the witness, his supervisor himself and the risk assessment device all in one day’s work."
20. "Adrienne Glen is the hospital social worker attached to the child protection team. Her testimony is not of a great deal of use to the director because she has little to add to the evidence. She confirms that she interviewed Zabeth Bayne, who repeated that she thought that Baden fell on Bethany and she was worried about it. Once more those who belittle this testimony fail to consider that the mother would not have taken the child to the doctor the next day, if she did not have good reason to do so. (Do they think that all the times that they took the child to hospital desperately seeking help was just a symptom of Munchausens by Proxy?) Glen tries to make a great deal of the fact that Zabeth was unable to stay overnight with Bethany and is dismissive of the reasons given by the Baynes. The woman seems to be oblivious of the stress that the parents have been under for weeks and she does not understand the practical difficulties facing the Baynes at the time, nor does she attempt to discuss it with any empathy. As far as the court is concerned, she clearly shows the bias and antagonism evident in the rest of the protection team."
To
be continued ….......................
As I said yesterday, the above testimony took a week of court time and yet the judge made no reference to it in his judgement.
ReplyDeleteAnybody like to comment on that?
I think if you had've painted a pair of pink elephants on the lenses of the judges glasses and when he put them on he still would have missed the pink elephant.
ReplyDeleteIt would appear the rebuttal is not in a 'respectable' enough format that warrants much attention by the judge. There is far too much discussion, rhetoric, and criticism of the Director that effectively disables the submission.
ReplyDeleteIn the legal arena, one never includes speculations on motivations and criticisms of the opponent, which has been done extensively in this response.
There needs to be case law references, citation of exact lines when referring to Jensen's transcript, and clearer focus on addressing why a finding of protection should NOT have been found.
Nontheless, it is an entertaining read and does point out huge omissions by the judge in his ruling.
Anonymous 11.57 AM makes some good points. However, I think they would be more valid if the action were in criminal court. Family court is not meant to be as adversarial and legalistic as criminal court, yet it is turning out to be that way. For instance the above blog describes a week of testimony with virtually no factual evidence in it. The judge scarcely referred to that week at all in his judgement. Perhaps that was because of the rhetorical summary of the defence.
ReplyDeleteIt seems to me that the ministry lawyers play it both ways.They demand strict compliance with all legal processes from the parents,but they freely ignore proper notification and other parts of the act which are unequivocal. I do not honestly think that the defence summary influenced the judge one way or the other. He accepted the defence argument that the evidence would not support a continuing care order and then incredibly he extended three and a half years of virtual temporary care for another six months. This is a blatant disregard of the guidelines of the act under section 4. The people who enacted the legislation never dreamt that it contained so many loopholes that it was technically possible to make effective temporary care for four times as long as intended.
Judge Crabtree obviously cherry-picked the evidence in order to make an expedient order, which would save the director's bacon. Even the director had asked that if a CCO were not granted, that the judge return the children, because the costs were getting very high. (I assume his bosses were getting worried.)
By the way, I am one of the few people who has read the whole of the 327 page transcript of Finn Jensen's three day summary. He made very few legal arguments, but mostly attacked the crediblity of defence witnesses, especially the medical witnesses. Don't forget that the whole of the case against the Baynes was one shaky piece of medical opinion. Specifically this had to be a shaken baby case. When the judge rejected the shaking cause, the case should have finished there and then. There was no doubt the child was injured, but huge doubt about the cause.He refused to accept the mother's explanation and on that basis made a finding of low level risk. He based his refusal on the grounds that the mother was at times evasive and inconsistent in her testimony.One can look it in a different way too. The mother had been under stress for years and in a state of nervous exhaustion on the witness stand. She was grilled by an aggressive lawyer for one day and a half. She tried to avoid the traps he set for her and in this sense she really was evasive. However, how many of us could remember exactly what happened on a given day three years ago and what we may have said about it? How many of us could guarantee total consistency. No this case was not decided on points of law and it was not decided on medical opinion. It was decided on the cross examination of Mrs Bayne. Under the circumstances, the judge could have cut her a little slack. I amagine he had a really hard job making up his mind, because he knew he could only find minimal risk and yet he was worried about the effect on the establishement should he return the kids. He was newly appointed chief judge and had great influence, but newly appointed chief judges do not start off by skewering the establishment.
Well said, Ray. It makes me think of the process of law and it's many failures with respect to trials for murder and hanging in Canada.
ReplyDeleteBefore the abolition of the death penalty, there were not many worries for the establishment. Things happened quickly-- sometimes, very, very quickly. As we all know, a dead wrongly convicted person can't complain much. Neither would his family waste their efforts and finances further.
Thankfully, those who help the Baynes are alive, present and willing to do what needs to be done to get this family back together soon. The establishment has a lot to worry about in this case.
Judge Crabtree mentions the various social workers involved into the ungodly huge chronology section of his ruling.
ReplyDeleteBesides the three social workers that testified in today's blog, the seven other social workers directly involved included Ms. Adams from Hope, Ms. Green from the Children's hospital, Ms. McQueen (Baden's injury). With Josiah, we have Ms. Tran, Ms. Pritchard and finally, Mr. Walker. There is likely another hospital in-house social worker I did not get the name of. Ten is a lot of social workers that have touched this one file.
Getting back to th judgment, typically in such rulings, the proscecution would have their own section listing all their witnesses. Credibility would be an important observation. A non-credible social worker bringing questionable evidence (such as Humeny and his Comprehensive Risk Assessment) should be castigated from the perspective of the public who needs to be warned that such individuals are causing so much damage.
Social workers that are supposed to be bringing the fruits of their investigative efforts to the courtroom. In this case there was no fruit. The police did all the work, yet they were not called.
Judge Crabtree did not just deftly cherry pick information for his ruling, he took a chainsaw and completely discarded weeks of testimony while expanding and microanalyzing Zabeth's contribution.
What comes to my mind is what happend to the right of silence and the right not to self incriminate?
The whole point in adversarial cases like this is to get the accused to talk is to use their own words against them. This is not difficult to do when there is a deliberate intent to cause stress in the hopes that this happens.
This is another reason for parents who have children to have audio recorders on their person 24/7. Flood the MCFD with audio tapes they have to keep on file indefinitely.
FixCAS.com has some interesting news items I just noticed. Great stuff. I will have to check this site more often.
ReplyDeletehttp://fixcas.com/cgi-bin/go.py?2011b.Watson
San Jose ordered to pay $3.2M in child seizure suit
Police took children and put them in foster care for over a year. There was a jury in this case and they awarded 3.2 million dollars to the parents. Now THIS is the sort of judgment the Baynes are owed by MCFD.
http://fixcas.com/cgi-bin/go.py?2011b.Ward
Jackpot!
This story is about an adopting couple who got $54,000 tax refund adopting several children.
"The one-time windfall for the family is attributed to a change in the tax law this year. Since 1997, families who adopt have been eligible for a one-time, $13,170 tax credit per child. Over the past three years through foster care, the Wards added five more kids to their family, which already included seven other children."
http://fixcas.com/cgi-bin/go.py?2011b.Alaska
Equal Opportunity Employer
20 out of 350 foster homes in Alaska have criminal records.
"Want a job as a foster parent? Put assault, prostitution, drunken driving, theft or shoplifting on your resumé. This is no joke. Alaska hires fosters with exactly those qualifications."
There are cases where CCO's are rendered fairly quickly, and are not reversible.
ReplyDeleteThe Lisa Arlin case springs to mind as one good example. MCFD saw a CCO opportunity and they spared no effort in fast tracking matters against a mom whose children were in no physical danger. I believe the turnaround in that case was about 18 months. http://www.pa-pa.ca/Arlin.html
Another past example from this blog talked about U.K. parents who were finally exhonerated, but only after the children were adopted out, and they could not reverse the process. These types of consequences a lot of parents would equate to a living death penalty.
Posting these legal arguments and rebuttals provides future researchers evidence of the magnitude and the lengths to which judges will ignore relevant evidence in order to stack the deck against parents.
Keep up the good work.
One thing which especially disturbs me about Crabtree's Reasons for Decision is the part where he essentially calls Zabeth a liar because she said it wouldn't be stressful to get her children back. Crabtree claims this is not credible because having children and a baby is stressful (from his point of view). This is such a sick, twisted, and cruel thing to say. It's putting a mother in a horrible position. She is damned if she does (say it would be stressful) and damned if she doesn't.
ReplyDeleteSo, what the government has done here is take away 4 children from 2 wonderful, loving parents, put them all through hell, and then the judge has told the world that part of the reason that he isn't giving the children back is because he doesn't believe the mother when she says it wouldn't be stressful to get the children back and have 3 children and a baby to look after.
Crabtree obviously has no clue whatsoever how stressful it is NOT having your children, having them in foster care for over 3 years. Compared to the stress of that, anything would be a cake walk, even looking after 20 children all by yourself. But these judges don't seem to have any hearts. What would really begin to fix the system is if we could have jury awards like they just did in the good ol' USA.
http://www.sfgate.com/cgi-bin/article.cgi?f=%2Fg%2Fa%2F2011%2F04%2F04%2Fprweb8269009.DTL
Whatever criticisms people have of the U.S. and there justice system, at least they know how to compensate, or begin to compensate, people who have been wronged. Expect more of these lawsuits, and more of these awards, because now that the lawyers see that there is $$$ to be made, they will be seeking out such clients, and you can bet your bottom dollar the clients will be seeking out the lawyers who can obtain such awards.
I can't wait for the same, or similar, to happen in Canada. That is when MCFD and all the other child protection agencies will really start to pay the price for their destruction of families.
MCFD defense lawyer Karen Horsman (this is paid by taxpayers $143,000 yearly, twice that of community service managers and more than MCFD Directors) conveyed to a parent filing a jury lawsuit said the government is immmune from such lawsuits.
ReplyDeleteIn one case I know of, Ms. Horsman fought to have a summary hearing (ie. without witnesses) and made a claim of qualified privilege so the various MCFD players would not be subjected to a discovery process or have to testify.
The Canada Revenue Agency is one that is NOT immune from jury lawsuits, hence the 1.3 million dollar award of the Newman v. CRA (which I believe is being appealed). A similar case heard in Canada should equate well to the 3.2 million dollar San Jose award.
If there WAS NOT a finding of protection by judge Crabtree, the Baynes easily would fall into the 5-10 million dollar lawsuit category. The annual MCFD spend on external legal services approaches the 10 million dollar mark.
This blog has an email where MCFD players discuss the possibility of the Baynes filing a lawsuit against them.
It does not take much imagination to believe the government has a high degree of motivation and the ability to rule against the parents.
I sincerely hope that that Doctor Colbourne and the Children's hospital are sued for their false diagnosis of shaken baby syndrom, and they are judged by a jury.
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It is worth noting in Blog # 58 December 13 2009, there was a discussion of just such a concern of a lawsuit:
http://ronunruhgps.blogspot.com/2009/12/zabeth-and-paul-bayne-part-58-bayne.html
On March 26, 2008 at 2:05 PM Loren Humeny wrote to Berhe Gulbot on the subject ‘Bayne File.’
“Hello John, I am writing this e-mail to bring you up to date of this case as it seems to be going in the direction of a possible law suite against the Ministry.”
On March 27, 2008 at 10:54 AM, Berhe Gulbot wrote to John Fitzsimmons and copied to Loren Humeny about the Bayne File.
“I would like to update you regarding the Bayne case. I asked Loren to write email regarding this case. Loren's email has more details for your reading. The purpose of this update is to inform you of the continued high profile nature of this case, the potential for parents complaining to higher management or Victoria, unconfirmed reports that parents are thinking of suing the Ministry and that they are asking people to support them by attending at the Chilliwack court in the next court hearing and may be invite media.
I strongly suggest that you review the file and respond to me if you have any suggestions that we need to take action.”
And on March 27, 2008 at 11:33 AM John Fitzsimmons wrote to Bruce McNeill and copied to Berhe Gulbot and Loren Humeny on the subject: Bayne file possible future media involvement.
“I'm forwarding this to you Bruce so you are aware of this file in case there is future media attention. Berhe and Loren have spoken with me about this file on a number of occasions and the case planning has been through. “
Unfortunately, this family has been challenging to work with, there has been little in the way of an explanation for the baby's injuries, and a lot of medical evidence which indicates Shaken Baby Syndrome.
There is little that I can suggest to Loren and Berhe that they might do which they are not already doing. If you would like to discuss this further or would like some detailed information in case of any possible media involvement please let me know....thanks”
John Fitzsimmons
Community Services Manager
Mission, Fraser Cascades
#201- 7364 Home Street
Mission, B.C. V2V 3Y7
PH: (604) 820-4300
Cell:(604) 217-4194
FAX: (604) 820-4311
John.Fitzsimmons@gov.bc.ca
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There is considerable commentary on the subject of lawsuit on this one blog, if you use Google's Advanced search and restrict the search to the http://ronunruhgps.blogspot.com domain and use keywords lawsuit law suite law suit sue, there are a large number of hits.
To 10:24 AM I have published the comment that references Horsman but with this explanatory note.
ReplyDeleteHorsman's comments that are noted in the above comment are to be understood within the context of her expertise and her legal position and to this point I direct you to the Governor General web page where a Minister's Report right hand side column upon scrolling down shows this article. Horsman has written a book about suing government, and defence against such lawsuits
“Lawyers write the book on public law
Two Ministry of Attorney General lawyers, Karen Horsman and Gareth Morley, have “written the book” on government liability law and practice.
Horsman and Morley collaborated with legal scholars and practitioners from across the country on the practitioner-oriented resource. The handbook sheds light on some common, but often very difficult, legal and procedural issues common in government practice.
It is both a scholarly work of legal history and a practical guide to suing and defending civil matters against the Crown. As many others who have seen it have noted, it is a “must read” for those who practice public law.
With public practice rapidly evolving, I can report that Horsman and Morley are already working on their first updates.”
http://www.gov.bc.ca/ag/attachments/ag_report_aug07.pdf
Karen Horsman is legal counsel with the Ministry of Attorney General of British Columbia. Ms. Horsman has acted as legal counsel to the government of British Columbia in a variety of capacities since her call to the British Columbia bar in 1994, most recently in the area of civil litigation. She has appeared before a number of administrative tribunals, and at all levels of court including the Supreme Court of Canada. Ms. Horsman graduated from the University of British Columbia Law School, and worked as a law clerk for the British Columbia Supreme Court before joining the Ministry of Attorney General. For the past two years, she has worked as an adjunct professor at the UBC law school, teaching in the area of Crown law.
She has recently been integral to the government's case against polygamous marriages in BC.
Anon 8:28pm....people, including you, could have criminal records without those charges being violent or other such offences. You are reaching with that one...as usual.
ReplyDelete