Wednesday, August 17, 2011


"It is interesting to see what would have happened in the Bayne case, had their case been in criminal instead of family court. Of course it did not get into criminal court because of lack of evidence. When the police investigate a case, they look at the evidence and by that they mean the hard, provable factual evidence. If when the case is reviewed, an investigating constable reviews the case together with a superior. They may decide, and I believe this happened in the Bayne case, that there is insufficient evidence to take to the prosecutor."

That paragraph and the rest of today's post is written by Ray Ferris, an occasional GPS post writer. Ray speaks from 31 years service in child welfare and protection as a social worker and district supervisor and family court coordinator. Ray is the author of 'The Art of Child Protection'. 

"Or they may simply decide that there is not enough evidence to come to any conclusion at all except that the person is blameless. However, if they conclude that there is reasonable evidence to take to the prosecutor, then they put the case forward. The prosecutor may, or may not agree that there are grounds for prosecution. The case may be rejected outright as unlikely to procure a conviction, or the prosecutor may make suggestions as to how to improve the investigation.

Whichever way, there are always certain safeguards built in to protect the rights of the accused. 1. There is a presumption of innocence until proven guilty. 2. There is a right to silence and silence may not be construed as an admission of guilt. 3. The prosecution must disclose all relevant evidence within a reasonable time. 4. If the trial is not held within a reasonable time, the judge may dismiss the case because of undue delay. The principle that justice delayed is justice denied. 5. The rules of evidence must be strictly followed. Hearsay and anecdotal evidence are not allowed. 6. Expert opinion is allowed, subject to expertise being validated. 7. The law must be followed carefully and this includes the various acts governing evidence and procedures. Moreover police and prosecution are not allowed to harass or intimidate the accused, or to try to pressure them into false confessions, or to blackmail them into expedient plea bargains.

Now contrast this with family court.

Family court is a zoo at the best of times, but with child protection cases it seems to be more like a jungle. Gone are all the safeguards of criminal court. You see, in child protection court, nobody is actually being charged with anything, because no crime has been committed. So with no crime, there is no presumption of innocence or guilt. What happens is that the director lays a complaint that a child or children are at risk and in need of protection because of the actions, or negligence of the parents. There does not need to be a jot of factual evidence. The only thing that is done promptly is that a court report must be filed within seven days of admission to care. The report does not have to have any statement of factual evidence and in fact it matters little what is on it. It can be complete conjectural nonsense, or as vague as you like and the court will accept it without question. Parents have no opportunity to challenge it and very little opportunity to even discuss access. In fact it can be a year or two or more, before they have any opportunity to challenge the director. There can be some nasty twists in a case. When the director lays a complaint on the grounds of deliberate injury to a child, as is the case with shaken baby, it is much more than a claim of risk. Not at all. An allegation of shaken baby, or any other non-accidental injury, is almost the same as accusing the parent of a crime. The crime is inferred and it does not matter a jot if the police have investigated and cleared the family. A finding of non-accidental injury by a judge is as good as finding the parent guilty of a crime without the protections of criminal court. As far as the director is concerned it is the same as an assumption of guilt until proven innocent. Silence is an admission of guilt and so is any failure to attend meetings with the ministry where the social workers engage in coercive interviewing in order to try to manufacture a bit more evidence.

In criminal court any out of court negotiations take place between counsels for the defense and the prosecution. They are on an equal footing, even if there is compelling evidence. Many things can be taken into consideration. There can be an agreement to accept a lesser verdict in return for a reduced penalty. The prosecution may worry that a serious crime may be dismissed because of undue delay and may be ready to make concessions. These will be genuine negotiations with mutual benefit in mind.

Contrast this with dealing with the director's representatives. Mediation can be forced upon parents because it is in the law. Parents can be intimidated into accepting mediation, because there is a presumption of "guilt" if they fail to comply. In the mediation process the ministry has all the power and holds the whip handle. Parents can be pressured to admit fault. In the Bayne case, they must admit deliberately injuring the child or "they cannot move on." Vague, coercive and manipulative terminology is used with no need for any supportive facts. The courts condone all this and back up the ministry all the way. If the director decides after a year or two that his case is too weak to proceed, all he or she has to do is to withdraw the complaint, secure in the knowledge that the judge will rubberstamp it. I only ever once saw a judge overrule the director."

Thanks to Ray Ferris for today's post.


  1. What Ray says is 100% accurate, because I have personally experienced all of the various steps of a typical Ministry incursion, and have witnessed many parents experiencing the same. To boot, even if an appeal at any point is put forward, it is viewed with extreme prejudice by the next level court, the BC Supreme Court.

    The path the Baynes followed is exactly what parents have to do to get their children back. Sell the house, the piano, all worldly possessions, quit the job (or get fired), adjust one's schedule so no visits with the children are missed. But sill, maintain one's composure and dignity and not show anger or frustration in front of the social workers.

    The Baynes case is a remarkable example of a best-scenario success story. This family still is not quite out of the woods yet though. They have to survive the period of the supervision order and not do any public interviews (even if they are done now and shown much later) a period of time beyond the expiry of the supervision order.

    Let's review: The Ministry has had all of their diagnosis' wrong. No SBS. No matching social profile for SBS. Project parent found no fault. The supervision reports over the past four years found no fault. The Parental Capacity Assessment found no fault and recommended the immediate return of the children. This return was done within weeks, not the typical months that usually pass after such a recommendation is made.

    It is the Ministry who has had enough of this particular fight, so they are retreating, licking their wounded pride (they have no scratches beyond perhaps a large taxpayer bill). They are still cocky with their win of a finding of protection because of Judge Crabtree's "10%."

    I think the advice parents would derive from these observations is that if you want your kids back, fight like hell and be prepared to lose everything as a possible consequence.

  2. Parents have become the new criminals, pursued with greater zeal than serial killers, but with far less rights. An example of this is the insane publicity generated when a parents "steals" their own child back from CPS, and an Amber Alert is broadcast far and wide, interrupting all regular programming, and making it sound as if the parent/s is worse than Jack the Ripper and must be apprehended and thrown in jail before the child is brutally murdered.

    The reality is, when the child is apprehended (thanks to some helpful citizen, who believes they are protecting the child), the child will end up in foster "care," where they have at least a 5 times greater chance of being abused or killed in foster "care," than if they are with their biological parents. These stats are probably way worse, since CPS always fudges their stats in order to look better than they are.

  3. well put, Ray Ferris, but frightening in the extreme! What needs to happen to make the public realize this is the methods used to apprehend or interfere with ANY child, parent or family? That's what I ponder often because I know that few can believe such outrageous things happen to our Canadian citizens.

  4. Keep in mind criminal court also said OJ Simpson was not guilty. This isn't a statement directed at the Bayne's but that possibly, Criminal Court (aka, Crown Counsel) deciding if there is enough evidence to charge isn't the be-all-end-all of if a crime or abuse has occurred. Yes, OJ, is an extreme example but we all know of all the drug dealers, white collar crooks, and spousal abusers who get off without any consequences as there isn't "enough evidence" despite everyone knowing guilt is true.

  5. I remember a lawyer saying that they were taught that the "presumption of innocence" is an important principle in Canadian justice because they would rather let a 100 criminals go free then accidently jailing even one innocent person, as one innocent person wrongly jailed is one person too many and an affront to basic justice (even though it does happen, but it seems to be pretty rare).

    The question we should then be asking is...How many innocent families and kids lives are we willing to destroy in the process of saving one child who needs the help?

    Was everything the Baynes and other families have gone through worth it, if it meant that the process saved one other kid from real abuse and harm?

    Or is the price too high in terms of fundamental justice, and we need to require a higher standard of proof in child protection cases to protect the innocent, even if it means that some children will not be saved and instead returned to a non-ideal situation...

    How do we achieve the right balance?

    It seems right now, that the law and the system seem willing to accept a certain amount of collateral damage, and accepts the principle of robbing Peter to pay Paul (i.e. sacrificing/ destroying one innocent child to save another innocent child)

    Are we, as a society, willing to accept it too?
    Or is it time to change?

    I vote for change.

  6. This is anonymous 10:24

    Just some further musings to my previous post.

    In child protection, do we accept that parents/families are guilty until proven innocent?
    Even though it may mean we intentially inflict harm on an innocent child/family, so that this way, we can save as many other children as we can?
    But again, how many children/families are we willing to sacrifice while we save others?
    1? 10? 100?

    Or do we change the principles of child protection justice so that parents/families are innocent until proven guilty?
    Although we do no harm, it means that not everyone will be saved.

    My own personal choice would be to do no harm.
    You can't save everyone, so you save those you can, but at least you are not intentionally adding to the misery of the situation. Intentionally harming even one innocent child/family is too high a price to save another.

    I think this is a debate that we as a society need to re-examine. We need to let our politicians know our views, and get them to change the laws to reflect them...

    I am curious where others stand.


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