THE OTHER SIDE OF THE COIN

THE OTHER SIDE OF THE COIN by Ray Ferris

A children’s minister once told me that 30% of cases are over-investigated and 30% under-investigated. Looks like he was unintentionally saying that his staff got it wrong 60% of the time. To anyone who has had dealings with that ministry, this will come as no surprise. This blog has been primarily concerned with the cases of over-investigation. Those cases where a family has been persistently pursued and harassed when there was no good reason to do so. I want to write about cases on the other side of the coin. Those cases where the social workers turned a blind eye to neglect and abuse and left children to live in misery for years.

Probably the case of Matthew Vaudreuil is one of the best documented and his death led to the establishment of the Gove Commission of Inquiry. He died at the hands of his mother at the age of seven, but only after dozens of complaints had been received of neglect and abuse, while nothing was done. I also want to write about some cases of neglect and abuse that I have known and how they were handled.

    Before writing about various cases over the next few days, I want to give some background on important things to keep in mind at all times. I want to write about evidence. Blog readers will know that I have written about evidence before, but a reminder never comes amiss. What is evidence and why is it important? We all use evidence in our daily lives and we often just do it as a matter of experience and common sense. So evidence can consist of a number of different things. Most important is factual evidence. Factual evidence underpins so much in life. Science, engineering, medicine, architecture and many other things rely on factual evidence to guide practice. Not only that, it is important that new knowledge is quickly incorporated into practice. That is so true in medicine, where best practices are constantly being re-defined as new evidence comes to light. We all know how to work out profiles from the factual evidence in our experience. We expect the bus to get us to work and the mail to arrive. We expect our car to be fixed and Tim Horton’s to have coffee for sale. Profiling helps us to pick our friends favourite restaurant.

    Facts are the most important evidence. Next on the scale of reliability is eyewitness evidence. Eyewitness evidence is not infallible because different witnesses can give varying versions of the same event. However, in the courtroom eyewitness evidence is generally considered to be reliable if it can hold up under examination and cross-examination. Of course if you are seeing an apparent assault from across the street, your recall may not be as accurate as if you were the actual victim of an assault and have injuries to show for it.

    Opinion evidence is tricky. Generally opinion evidence is unreliable unless the person giving the opinion can show all the facts on which the opinion is based. From a legal point of view only expert opinion counts and first expertise must be established. The qualifications of the expert in a particular field must be stated. This is both a strength and a weakness. It shows the person is qualified in a special area, but it also means that if the expert is mistaken the results can be drastic. Just look at all the forensic shows on television and how complex forensic science can become. There are two other weaknesses about opinion evidence. First the expert opinion tends to favour the hand that is paying. Secondly, equally qualified experts can come to completely opposite opinions about the same matters. Where does that leave a judge?

    Let us take the Bayne case because it essentially rested on one piece of opinion evidence and that was the opinion of a physician that there had been a deliberate injury to a child. So one important issue would be to determine how reliable was that opinion. Well no fewer than eight medical experts and two bio-mechanical experts strongly disagreed. They looked at all the medical evidence available to the original physician and pointe out many flaws in her diagnosis. The medical evidence in the case was voluminous. There was all the original data and the eleven interpretations of it. There was little variation in the general conclusions of the defence experts.

    This medical evidence was very scientific and complex. Did I need to understand it and did the lawyers and the judge need to understand it? Certainly not and here is why. All that had to be determined was to decide if the opinion evidence of the first physician was reliable enough to separate a family for months and to keep three children in limbo for two or three years. Was it reliable enough to spend all that money on foster care legal fees and visitation supervision? I consider that a no-brainer. As soon as I got all the dissenting medical reports, it was obvious to me that the expert opinion driving the case was unreliable and no drastic decisions should be made based on it. It should have been obvious to the judge as well, but he lost himself in legal processes and painted himself into a corner. He could have done what supreme court judge Paul Walker did in the case defended by the Hittrich company. When he saw that the evidence was looking shaky, he returned the children under supervision pending conclusion of the trial. Judge Crabtree could have done the same and there was a risk that he would be appealed if he did it, but the best interests of the children should have prevailed.

    Hearsay evidence. Going down the scale of reliability we come to hearsay evidence. Second hand information. Courts do not like it because you cannot cross-examine the original informant in the same way you cannot cross-examine a document. So why is hearsay sometimes allowed? First of all if you quote somebody and they are in the court and can hear it, it is allowed. This would generally be when the person is being tried. For instance the evidence of a police officer about statements made by an accused is hearsay, but it can be tested for reliability. The person being quoted may be dead or unable to come to a court. Thirdly when the statements of young children are being reviewed, the children will not be called to court because they are simply too young to undergo examination and cross-examination. Then the issue becomes to examine the reliability of the process under which they made their statements. This usually becomes the issue with revelations of sexual or other abuse.

Ray Ferris is my friend, and a respected advocate for changes to the Ministry of Children and Family Development in B.C. as well as an advocated for worthy parents to recover custody of their children. He writes occasionally on this blog at my invitation. He is effective because he speaks from experience as a social worker within this Ministry. He wrote, ’The Art of Child Protection.’ You can obtain a copy by writing to rtferris@telus.net