THE BAYNES - A KATHY TOMLINSON CBC PIECE

B.C. children spent years in limbo after shaken baby accusation

Court proceedings dragged on for 4 years

By Kathy Tomlinson CBC News 

Posted: Jan 3, 2012 3:59 AM PT 

Last Updated: Jan 3, 2012 7:09 AM PT 

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A couple whose children were removed from their home and eventually returned say the B.C. government caused needless suffering by keeping the family apart for almost four years.

“It’s going to take a lot of healing,” said Zabeth Bayne, mother of the four children. "There’s a lot of pain that gradually we have to deal with, and as a family."

CHRISTIE'S FINAL SUBMISSION installment 1of10 Introduction /489

I begin today a series of posts which are quotations from Doug Christie's final SUBMISSION IN RESPONSE to MCFD Counsel Finn Jensen who concluded his three days of summation in October 2010. Judge Thomas Crabtree had to decide whether or not to grant the MCFD a CCO, Continuing Care Order for three children born to Paul and Zabeth Bayne. Christie's submission was delivered on the Baynes' behalf on November 4, 2010. Judge Crabtree released his final ruling on March 2, 2011. He ordered not a CCO but TCO (Temporary) for six months. In this submission Christie countered MCFD allegations and evidence.

In the introduction, Mr. Christie's remarks were these. "This has been a long and complicated case....."

JUDGE CRABTREE CONCLUSION VERBATIM / 487

This entire post is the verbatim content of the concluding portion of Judge Thomas Crabtree's Ruling on the Bayne Case, which he released March 2, 2011. It is untouched with the exception that names of parents and children have been replaced with abbreviations. My paraphrased version  of the ruling was published on Friday March 25, 2011. This is a public document, the full disclosure of which has not yet appeared on an official site.

STAGES 1&2 OF CRABTREE'S DECISION PROCESS / 485

Chief Justice Thomas Crabtree

(On Monday: Judge Crabtree's verbatim Conclusion)

Near the end of the 39 page 'reasons' document released March 2, 2011, Judge Crabtree renders his conclusion in two stages.

Today, I am restating for you the conclusion to which Judge Thomas Crabtree arrived. I have taken liberty here to write the Judge's remarks in the third person. Where most appropriate, I have quoted Judge Crabtree's own words.

THE PARADIGM AND THE BAYNES / Part 315 / For Love and For Justice / Zabeth and Paul Bayne/

The child-saving paradigm

Child welfare began in the last century as a sincere effort to rescue children from abusive or negligent parents and home situations. That was admirable then. Children were plucked from horrendous environments. Decades have passed and economies changed. Generations have come and gone and most parents manage parenting well and family life flourishes. A need still remains for resources targeted to children and families that experience difficulties. But what we seem to have perpetuated in our child welfare systems is the save the child paradigm. You rescue best if you remove the child. The child is hungry in the home? Take the child away. The child is inadequately clothed? Take the child away. For all the expertise and credentials and dollars we are throwing at child welfare, we remain anchored in this culture of salvation for the children by removing them from their homes and families. That is of itself so counter-cultural to ethnic groups who have come to Canada to live and thrive. It is counter-productive to homegrown citizens to whom life has dished out hardships and finding themselves unemployed or unhealthy or otherwise dysfunctional, instead of finding help from our heavy tax invested government ministries, find opposition and invasion of privacy and rights, and find harm that sends some over the edge. Aboriginal communities particularly have experienced the insidious results of child-saving philosophy. Not respecting First Nations families, our provincial governments in Canada have mistakenly removed many children on the premise of helping them, saving them. Is some of this being addressed now? Yes! But slowly and in small increments.

Child Welfare Enterprise in B.C.

Child welfare is not important to the general population. Young families live and love life and generally get on quite well. Why would they pay attention? It is only when one ordinary family ends up in the child welfare system that these few individuals learn how difficult life can become. Child welfare is also tough I believe for those who must work within it. The work load is increasing for each worker. From among B.C. children approximately 1 to 1.5 percent are in the care of the government. After years of leadership upheaval it may appear now that the Ministry has achieved a turn around. We are still waiting to see. After all, from 2004 to 2006 there were four different ministers. Four deputy or acting deputy ministers served during this same period. Then along came Ms. Dutoit and Ms. Polak and Ms.Turpel-Lafond and the system transformation plan.

Child Protection and the Bayne Family

Tomorrow counsel Finn Jensen will begin his summary statement to the Court. I intend to be there although I do not look forward to it. I wish to report to you the essence of this final day in court for this case. The treatment of this family over almost three years has been nothing short of an escalating disgrace. It has been a discredit to the good Transformation intentions that are birthed in Victoria's Ministry offices. I am convinced that the regional ministry suspects that they are losing this case. They have been scrambling. It's shameful and you may yet hear about it.

COURT RESUMES TODAY 9:30 AM / Part 274 / For Love and For Justice / Zabeth and Paul Bayne/

This is the day. It's not D-Day yet. The decision does not come down today. But the closing testimonies and arguments from both the MCFD counsel and the Bayne counsel occur this week. The ruling may come at the end of this week or perhaps later as judge Crabtree has time to reflect upon this recent evidence. Most of the week will contain the Bayne opportunity to present their case defense against the accusations of the MCFD. Some of us believe that the decision is already clear. Jensen is an effective lawyer. He simply has not had a good case to represent for the Ministry. He knew that very early in this nasty process. In fact he counselled his client, the Director, that the case to continue care of the boys could not be won. Like most lawyers, he does what his client pays him to do, so we have come all this way, at the expense of the children not in their best interests.

Not this kind of decision.

Closing in on three years that this Bayne family has been ruptured, the case begins yet another week of court days. Hopefully this is the end of it. Hopefully regardless of the legal loopholes and extension ploys that MCFD or Jensen attempt, Judge Crabtree will say “enough.” This meticulous laptop, note-taking judge has promised that he will deliver a written and articulated ruling to this hearing.

This has nothing to do any longer with protecting children. That may have been the early presenting concern. Today is well beyond that. Paul and Zabeth are not a threat to their children, not one, two or three. These many months have exonerated them by the consistency of their behaviour in face of the most adversarial treatment by a service providing agency mandated to administer mercy. Baynes on the other hand, have corresponded and complained and campaigned for good and safe care of their children and ultimately for the return of their children. Of course they have been faulted for that by MCFD. Had they not made this significant effort, that too would have been used by MCFD as evidence of disregard or neglect. That's the way this contest for the lives of children works. This is about winning. There have been countless evidences of this motivation throughout the case data over three years.

Most important this morning is how Paul and Zabeth are doing as they start this day and this week. Remember I told you that they were a couple with faith in God and the value of prayer. They do desire to know that other people of faith are praying for them and the positive outcome. They need some superhuman strength to face what lies ahead. Some of you know what they are feeling. They are afraid and they worry. Yet because of some strong indicators they are filled with optimism. What they dread is hearing once again an onslaught of insinuations and slanders about their character and conduct and family history. It is quite a slurry of emotion that they experience right now. This is the day. This is the Day that the LORD has made.

BAYNE COURT CASE RESUMES AUG 9, ONE WEEK FROM TODAY

ATTEND IF YOU CAN. CHILLIWACK COURT HOUSE, 2ND FLOOR.

MEDIATION / Part 258 / For Love and For Justice / Zabeth and Paul Bayne/

MCFD versus Baynes resumes at the Chilliwack Court House on August 8th. Isn't the word 'versus' reprehensible in the context of a family?  It is technically an inquiry rather than a trial but the terminology is merely legal correctness. It has been an inquiry to establish before a Judge the fitness or unsuitability of the Baynes as parents of the three children born to them. It is on the other hand an inquiry as to whether the Ministry of Children and Family Development have acted reasonably and justly in their handling of the case, of the children and of the relationship one should expect the MCFD to develop with the birth parents. The Baynes have contested all along that they did no violence against their infant child of six weeks, now two years and nine months old. But if they had, should it not be our expectation as citizens, that our Ministry of Children and Family Development would do all that it can possibly do to restore and repair and redeem parents, to restore family. Nothing like that has happened. MCFD’s posture toward the Baynes has been adversarial from the get go. The hard copy assessment sheets, the reports, the testimonies now in court reflect this posture.

Did it need to come to this? As taxpayers we should be able to confidently assume that it wouldn’t come to this unless birth parents were verifiably sadistic, immoral and criminal. After all, mercy and mediation are in the vocabulary of the MCFD in theory and on paper. MCFD offers a Mediation Program. This is what MCFD says about their own program.

“The Ministry of Children and Family Development and Ministry of Attorney General partnered in 1997 to establish the Child Protection Mediation Program. Where there is a disagreement between MCFD and parents or other persons concerning the safety and well-being of a child the parties can agree to use mediation to resolve issues, rather than go to court. Common issues include:
• what services the family will receive and participate in as part of a plan of care,
• the length of time the child will be in the ministry's care,
• the amount and form of access parents or others have with the child,
• the specific terms of a supervision or access order, and
• other matters relating to the care or welfare of the child.”

It further states: “The Ministry of Children and Family Development is committed to a presumption in favour of collaborative dispute resolution processes, such as mediation and family group conferencing, as a first choice for child welfare decision making rather than proceedings in Provincial Court.”

“For more information about the Child Protection Mediation Program, visit the Dispute Resolution Office website or the Ministry of Children and Family Development website.”

PERFORMANCE MEASURES / Part 248 / For Love and For Justice / Zabeth and Paul Bayne/

At its website page entitled PERFORMANCE MEASURES, MCFD has placed a couple of paragraphs informing us of the performance measures in place within the ministry. I admit that my difficulty is to suppress my cynical filter sufficiently to read these words without a bias for children safely nurtured within the homes of biological parents. So, even as my mind processes this MCFD webpage I view its content as a protection, preservation and promotional piece.

“Performance Measures”
“The Ministry of Children and Family Development is accountable to our clients and the public. We continually monitor our performance to track our progress and use the information to improve outcomes for the children, youth and families we serve and our programs and services. Improved performance and enhanced quality assurance are at the centre of our commitment to ensure children and families are strong, safe and supported to reach their full potential.”
“This report documents, in one place, seventeen measures that the Ministry of Children and Family Development has committed to report publicly. This is a first step in implementing a commitment made by the Ministry in the 2010/11 – 2012/13 Service Plan. We will add additional performance measures each year that will monitor our progress and help us along the path of continual improvement.”

Public Reporting of Performance Measures – March 2010
This public reporting contains much that may be of interest to you. Here are a couple observations.

1. Of all the calls received by the Ministry each year regarding protection concerns, approximately 30,000 will lead to a protection report. Information about protection reports is available on the ministry’s website.
2. The percentage of children in ministry care under a Continuing Care Order that are expected to remain in Foster Care until age 19 rather than being adopted or living with relatives is 34.9 %.
3. The percentage of children who “aged-out” from Ministry care, (turned nineteen years of age), that applied for income assistance within six months is 44.1%.
4. The percentage of children in the long term care of the Ministry who are in the expected school grade for their age is 78.9%.
5. The percentage of children under a continuing custody order during their grade eight year who go on to complete the requirements for high school graduation within six years is an appalling 28.2% in 2009.
6. In 2009, of the 8908 children in care, seven children or youth died.

We are still waiting for August 8-13, 2010 when the hearing under Judge Crabtree resumes in Chilliwack Court House, for final presentations by MCFD and by Paul and Zabeth Bayne's counsel, Mr. Doug Christie. The Baynes are naturally contesting a Continuing Care Order application by MCFD. The outcome we hope for is the return of three children to Paul and Zabeth after this almost three year separation.

THE CHILDREN ARE THE AWARD / Part 183 / For Love and For Justice / Zabeth and Paul Bayne/

Here is a revelation.

The people on both sides of this Bayne Custodial Hearing are good people.

Each time a critical remark about a Ministry employee is read or heard from a journalist, from a television news bite or a blog like this one, not only the employee but those who are close to that person take offense. They become protective. They know the individual and they feel the criticism to be groundless. They are after all, good people doing their jobs. Honest jobs. Providing care and resources to children, parents and families.

I know how it is. “How dare they criticize us for discharging our responsibilities as well as we can?” That is the mantra of insulted people.

Each time a loved one or a friend of Paul and Zabeth listen to another allegation of liability laid against them, or an assessment statement that questions their integrity, truthfulness or parental capability, we are similarly offended. We want to protect them from further injury. We want them to have their lives back. We want them to be out from under the scrutiny and control of Ministry employees because Paul and Zabeth are good people whose lives were interrupted not merely by tragedy but by the good people with good intentions who operated with misinformation.

I hear how it is. “How can the Ministry be so cruel and unfeeling?” Oh there is much more that is said by the sympathizers. It is not merely a mantra but a war cry. More is at stake on this side. It is not merely professional reputation within a Ministry but a FAMILY Survival that is at stake.

Here we have it, the Bayne Campaign for Justice pitted against the Ministry of Children - Fraser Region. How could good people come to this contentious intersection when three little children become the award for winning a Court Ruling?

Good people should engage in discussion and resolution, but if one side demands the return of children, not wrongfully seized but certainly unjustifiably retained, and the other imposes the condition of a confession of guilt to shaking one of those children, the impasse is inevitable and irrevocable. A Court Judge will have to determine which set of good people warrant the award because they are associated more fundamentally with what is true. May God have mercy on us!

TODAY AT 1:30 PM IN CHILLIWACK COURT HOUSE JUDGE CRABTREE WILL RULE ON THE BAYNE APPLICATION FOR THE IMMEDIATE RETURN OF THEIR TWO BOYS.

COFFEE TALK WITH MR. MCNEILL / Part 180 / For Love and For Justice / Zabeth and Paul Bayne/

On April 22nd I wrote an OPEN LETTER to Bruce McNeill requesting him to instruct his legal counsel to withdraw the official objection to the Baynes' application to have their two sons returned to them immediately, the conclusion of the court hearing for continuing custody notwithstanding. He responded on April 27th with an expression of appreciation for my interest and concern for the Bayne family and with the explanation that it was inappropriate for him to comment to me about this matter given that it was before the Court.

An Open Letter is one which is addressed to a person but is intended for general readership and for public attention. My Open Letter was not only posted to my blog but was sent specifically to key individuals in Ministry positions and news services. I am pleased to have read it in the Chilliwack Valley Voice April 23rd. (scroll through pages to locate the piece).

I am grateful that so many people in government and MCFD positions in Vancouver, Victoria, Burnaby, Coquitlam, Chilliwack, Prince George and elsewhere consider the issues expressed on this blog with regard to Child Protection and the practices of MCFD, to be important enough to regularly read them. I am appreciative as well that you pay attention to Paul and Zabeth Bayne and their three children as they seek to be restored as a family.

This spot today is not an open letter. It is rather me talking out loud, albeit pretending that Mr. McNeill is with me at a coffee shop.

Mr. McNeill, I know that while you may want to consult with colleagues like Mr. Boon and Mr. Fitzimmons and others, you could return all three children to the Bayne parents today. It is within the purview of your authority to grant this reprieve, this mercy. You are not bound to carry through your earlier directive to Finn Jensen to obtain a Court ruling to continue Ministry care of these three children. You are not obligated to continue to rest the lives of an entire family upon the diagnosis of one respected doctor. That may be customary practice and protocol but it is not mandatory. Have you read the detailed alternate opinions by a dozen qualified professionals? That must tell you that the first diagnosis was plausible but imprecise and not fully informed. Don't let these small children suffer any more. Please don't take them away from their parents for ever. I recognize that you have a team working for you and you are involved only from a distance. I wish that for this case you would do something unusual. I wish that you would visit with Paul and Zabeth yourself, in their home. Sure it would be awkward for you and for them. You would not have to go with offers, conditions or expectations but merely to determine whether in a short visit you could know them. Why would you do that? Because you have more in common with them than many people know. Would it mean that you could know what people are like in private or what they might do in secret? Of course that would be a stretch. Yet I have a sense that once past the manifest awkwardness, you would understand this couple so well that you would reconsider all the information that has defined your decisions this far. I was a pastor as you may know, for forty years. I cannot imagine making life changing decisions with regard to someone else's family without personally spending time with them. You would conclude that they are not adversaries at all but rather a brother and sister. The circumstances create this atmosphere of opposition. Thanks for meeting me for coffee.

OPTIMISM PREVAILS / Part 177 / For Love and For Justice / Zabeth and Paul Bayne/

“Order in the court. All Rise!” And with this customary instruction from the clerk we all stood yesterday morning as Judge Thomas Crabtree entered the chamber and took his seat. Immediately counsel Finn Jensen, soft spoken attorney for the Ministry of Children and Family Development and most specifically for the Fraser Region of this provincial ministry began his presentation. Throughout his 40 minute talk he made it clear that he was presenting the views, opinions and recommendations of the Director. You may recall that it was Jensen's advice to the Director that the boys should be returned. The points that Mr. Jensen was instructed by the Director to convey to His Honour were articulated as reasons why Judge Crabtree was in no position to make a ruling on the Bayne application for interim custody of their two boys.

Even though the primary hearing of the application by the Ministry for a continuing custody order applicable to all three children has not been concluded, Judge Crabtree allowed the Bayne's lawyer Mr. Doug Christie to present their application for interim custody of the two boys several weeks ago. The Baynes took this action on the basis of no evidence, previous or new to indicate risk to the boys in the home of their parents. Today was Mr. Jensen's opportunity to respond to the application. It was an adroit tack but perhaps inadvisable. Judge Crabtree would not have entertained this application from the Baynes if he did not believe he is legally entitled to hear the application and to rule upon it. Yet on this day, His Honour was being given a primer on what he could or could not do with regard to ruling on this matter. Friends, Thomas Crabtree was recently elevated to Chief Justice of British Columbia and I doubt that he requires a legal tune-up.

Judge Crabtree told the attending counsels and the Baynes that he was not giving a ruling on this day, but rather he would take a week and next Friday at 1:30 PM in court, he will give his ruling. That should be regarded as a good indicator of the Judge's processing of the evidence and arguments of the Ministry. Had he bought Mr. Jensen's responses the Judge could have, would have shut down this application immediately. We can be confident that this man of integrity will during this week revisit everything that is relevant to this application within the course of an active hearing for continuing care so that he can give these children back to the Baynes because it is evident to all unbiased observers of the facts that this is the sole just outcome.

There were numerous friends and supporters on hand for the Baynes as they continue to live through hardships and heartache few of us understand but we do sympathize.

I have pasted Mr. Bruce McNeill's response to me at the end of my Open Letter to him on April 22, 2010.

Part 137 / Application to Return the Boys / For Love and For Justice / Zabeth and Paul Bayne

There is a concern that this court case is in a holding pattern. Prior court days were occupied with the MCFD presentation of their case. What remains is the Baynes' presentation of evidence, testimony and experts' reports and perhaps two weeks of court time are required. Court time is backlogged and possibly the Baynes might have to wait until June for resumption of their case. The Case Manager for the Provincial Court of British Columbia is presently seeking to set dates for two this continuance. One date is for a one day hearing for the Crown to hear the Bayne motion for the return to the two boys to their parents. The second date is a multi-day series for the remainder of the Bayne evidence and testimony presentation. Of course the Baynes are anxious to proceed.

The delay is generating additional stress on them as well as hardship for their children. In view of this, before the last session concluded, Paul and Zabeth and their counsel Doug Christie raised the matter of the boys' return with Judge Thomas Crabtree.

Honourable Judge Thomas J. Crabtree expressed willingness to hear Paul and Zabeth Bayne's application for the return of their two oldest children, their boys. Their application is based in part on the earlier broken mediation agreement - broken by the MCFD not the Baynes, and in part based on the lack of evidence for the removal and retention of the boys. In fact, MCFD's counsel Finn Jensen communicated to MCFD in 2009 that the boys should be returned due to this lack of evidence. MCFD chose to ignore that advice. Before the final day in court recently, Lawyer Douglas Christie reopened this application. Judge Crabtree is prepared to hear arguments from both sides and has instructed the court clerk to find a date for this particular hearing, and the remaining days needed for the primary hearing of the Continuing Custody matter. Everyone waits to hear the schedule.

For Love and For Justice / Part 132 / Zabeth and Paul Bayne

The Bayne Case fills pages of reports and the hard copy reports fill file drawers and boxes. I know this is a complex case, involving more convoluted details than I will ever know even as a sympathizer of the Baynes. Yet essentially the story is that a baby suffered retinal hemorrhaging which is sometimes a sign of child abuse. Together with other medical observations at the time of baby Bayne’s hospital admission the diagnosis was made and the Ministry intervened a long time ago, twenty–eight months ago, October 22, 2007. The Ministry removed three children from the Bayne home.


The Baynes would concur with the rest of us that the hospital staff, the medical professionals, and the Ministry were not just within their rights, but were actually right to suspect child abuse and to run tests and to investigate. That is how the system must work if all the necessary tests are conducted and a thorough investigation is completed. It is designed to affect its purpose for the sake of our society and our children. But the process derailed when the Ministry insisted that a suspicion of abuse that ratcheted up the risk monitor was more significant than the RCMP investigative conclusion that there was insufficient evidence to charge the Baynes with abuse. Left to the RCMP alone, the children would never have been removed from the Bayne parents.

As far as the Ministry was concerned there was sufficient suspicion to remove three children from Paul and Zabeth, even though only the youngest was the one with the injuries from which the altercation stemmed. I said ‘sufficient suspicion’ rather than ‘sufficient evidence.’ The Ministry has had to maintain that suspicion for two and one half years. The ministry might insist that has not been difficult because the risk is so obvious. I claim that maintaining suspicion of the Baynes has not been easy to do because there is no evidence. In fact evidence that Paul and Zabeth are good parents and respected people had to be ignored in order to preserve the suspicion of risk. Only suspicion existed initially and only suspicion remains today. Yet the suspicion has become the equivalent of evidence in the Ministry’s mind. Now the Ministry has proceeded all the way to the Court still insisting that the Baynes pose a high enough risk to warrant the continued care/custody of the three children by the government Ministry. More than that, these children must be protected from their birth parents until they reach adulthood. The Ministry has come to Court needing to convince a judge that its suspicions are synonymous with evidence. This is just my take on it but I don’t think that the judge is convinced. Oh and of course the Ministry’s lawyer advised the Ministry months ago that a case could not be made to continue holding the two older boys, but the Ministry ignored that counsel, presumably because their suspicions are still defensible. Well they’re not.

For Love and For Justice / Part 123 / Zabeth and Paul Bayne

COURT NEWS UPDATE

AN UNEXPECTED ADJOURNMENT, FRIDAY February 26, 2010
Proceedings were interrupted as counsel for MCFD, Mr. Finn Jensen received news and then asked the Defense and the Court to agree to an adjournment for the day because of a grave tragedy, the sudden death of one of Mr. Jensen’s clients. He desired to make himself available to tend the needs of the family of the deceased.

SYMPATHY

Some GPS readers may be familiar with this grieving family as you read this note. Paul and Zabeth Bayne wish to express their own deepest sympathy for the family’s loss and pain at this time of heartbreak. They say, “Our prayer and thoughts are with you.”

BRIEF FRIDAY COURT BUSINESS CONDUCTED BEFORE ADJOURNMENT
Kimberly Grey was called back to the stand regarding a disclosure item that she had to produce. The Baynes had expressed some concern to the Ministry about their two sons during care at one of the homes to which they were assigned. It was Ms. Grey’s responsibility to investigate this. She did visit the home, but was unable to interview the person directly named by their son and she was satisfied by information received from another person at the home. Ms. Grey made no further attempts to investigate the concern or to verify the information received. and noted in her completed file that she considered the matter closed. That was the end of that matter on Friday.

Loren Humeny was also brought to the stand in order to produce the document he received from a now disclosed collateral (formerly anonymous witness). The disclosed document had been addressed personally to Paul and Zabeth Bayne and was among documents they intended to send to MCFD. Loren Humeny claimed he received this document on a date that would appear to be two to three days prior to the Baynes trying to submit it to the Ministry. Nothing more is known or can be said about this now and the defense has not closed this matter.

FUTURE COURT DATES
Friday concluded with no dates set for continuation of this trial. Both sides wait for the Judicial Case Manager to contact the lawyers with a date for a conference with Judge Crabtree in order to select further trail dates. They may require two more weeks for further evidence presentation. It is the defence (Baynes) turn to present. This blog will notify readers of dates when they are certain.

BAYNES SAY THANK YOU

A special thank you to everyone that has been able to attend the hearing dates so far. Your presence has been a much appreciated support during this trying time.

For Love and For Justice / Part 121 / Zabeth and Paul Bayne

An expert witness is an authority, who by virtue of education, training, skill, or experience, is believed to have specialized knowledge and expertise in a particular subject beyond that of the average person, sufficient that others should legally rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of his/her expertise, referred to as the expert opinion.

In this Bayne versus MCFD trial, Judge Crabtree will render a verdict. Leading to that anticipated and inevitable outcome each legal counsel calls witnesses some of whom are to be regarded as ‘expert.’ The contest is ongoing between the opposing sides, either to persuade the Judge that the witness is ‘expert’ or to discourage the claim to ‘expertise.’ Each lawyer is acquainted with the Canadian precedents that establish ‘expert’ definition. For testimony to be considered ‘expert’ its content must be the kind that informs the trier of the case, the jury or in this case, the judge, with facts that could not be discerned without the expert and without which the correct conclusion could not be reached. Expert evidence must be necessary or essential and relevant and reliable. To be reliable it must be able to withstand close scrutiny. A judge must then finally rule that the witness is entitled to testify by way of opinion or confirmation or otherwise. While several witnesses have already been presented, their admissability as experts and their 'expert' testimony has not yet been ruled upon by Judge Crabtree. That might be ruled today.

Well that’s what it was all about in court on Tuesday when Dr. Michael Sargent, a Pediatric Radiologist and part of the Children's Hospital physicians’ team was called as a witness for the Ministry of Children and Family Development. Finn Jensen presented him as an expert and his written report as expert testimony. We didn’t get to his testimony yet. That will wait for a later day in the schedule. If he is recognized as an expert, the expectation of the MCFD and Mr. Jensen is that his report and testimony should reinforce the position that the Bayne baby’s physical condition upon admission to Children’s Hospital in October 2007 was consistent with Shaken Baby Syndrome. That's what he is there to do. Will that testimony withstand the heat of a Christie cross-examination may be the issue.

Perhaps Dr. Sargent was aware that his qualifications would be stoutly questioned by Mr. Doug Christie. The morning was spent examining his credentials. Christie’s resultant submission in the afternoon was that Dr. Sargent was not qualified to be the objective, independent expert, that he doesn't have the requisite expertise to speak to shaken baby causation from his examination of X-Ray film. Christie challenged Sargent's expertise to provide a forensic opinion. He should not be allowed to present as to cause. Christie calls this intrusion into areas for which the doctor is unqualified. As he conducted his examination of Dr. Sargent it was clear that Christie took issue with the collegial relationship Sargent has with Dr. Margaret Colbourne. Colbourne’s Shaken Baby diagnosis is a substantial founding block to the MCFD case against the Baynes having their children returned to them. It was Colbourne and Jensen who just a few weeks ago asked Sargent to stand as a witness in support of Colbourne's position. Sargent acknowledged that Colbourne had told him her opinion before she came to court to give testimony. The judge has yet to rule on Sargent's admissability as an 'expert.'

Why we didn't hear Dr. Sargent's testimony on Tuesday: The start of the court session proper, was delayed as both lawyers discussed new evidence that Finn Jensen wanted to present with respect to Dr. Sargent's testimony. Dr. Sargent's multi-page report was emailed to Doug Christie on Feb 22 2010. Sargent had written the report Feb 17, 2010. Doug Christie was prepared to cross examine Dr. Sargent with regard to his report until he learned that that it contained reference to two X-Rays that had only recently been located and were not delivered to the defence radiologist for review. Christie then requested an adjournment to this testimony until Bayne's expert, Dr. Barnes from Stanford would have an opportunity to review and to respond. The Judge would not hear the testimony that day in fairness to Mr. Christie. Cross-examination was limited to Dr. Sargent's qualifications.

For Love and For Justice / Part 113 / Zabeth and Paul Bayne

What I am hearing from court proceedings …

This present case against the Baynes maintaining custody of their daughter proceeded from injuries for which they brought her to Vancouver Children’s Hospital and which were diagnosed there as indicators of a Shaken Baby Syndrome and only that. That diagnosis presumed a non accidental injury. Any story that the parent or caregiver offered with regard to an accident had to be categorically mistrusted. The hospital had no option and it had protocol which required staff to notify MCFD and/or RCMP. That was done. The RCMP found insufficient evidence to proceed with charges. From the RCMP standpoint the Baynes were exonerated. MCFD now involved in a child protective scenario looked at the Baynes differently because MCFD had more confidence in the medical diagnosis than they had in the Bayne parents’ story of accident. The only long term resolution that MCFD could foresee was an admission by one or both Bayne parents that in fact the baby had been shaken and that they were sorry and would be willing to take any classes that teach them to manage frustration and annoying baby behaviour. Then perhaps the family could be reunited, albeit with some monitoring provisos but such reunion was not assured.

Of course we now know that the Baynes have for well over two years refused to admit to something for which they still maintain their innocence.

The shortcoming in medical procedure that the Bayne camp has argued in court was a failure at that early investigative stage to systematically eliminate all other possible causes for the injuries. This is called a differential diagnosis.

The MCFD camp maintains through the attending health professional who made the initial diagnosis, that SBS was most consistent with the injury details. Bayne’s counsel Doug Christie questioned Dr. Colbourne’s credentials sufficiently that Judge Crabtree ruled that she would not be allowed to offer an opinion as to whether this was an accident or a non accident, or even to state her opinion that it was SBS. Finn Jensen ducked that ruling a following day by having Dr. Margaret Colbourne recite all the alternative causes with which in her opinion, the indicators were not consistent, and she finally landed on the one remaining cause, SBS. Why Judge Crabtree didn’t insist upon his prior ruling remains unanswered.

The differential diagnosis for Subdural Hematoma (SDH) in an infant includes impact trauma; a variety of natural diseases; and hypoxia/anoxia, either as a primary event or as a complication of impact or natural disease. A physician investigates, explicitly considers, and eliminates each before he/she attributes these signs and symptoms to a specific mechanical or physiological cause. The question remains. Will the judge conclude that Dr. Colbourne was qualified to conduct an explicit differential consideration of the numerous potential causes for subdural hematoma and retinal bleeding? That will certainly affect the outcome. The judge will have to determine based upon evidence, whether the Baynes are a risk to their children or was the baby's medical story the result of a family accident, or the baby's pre-existing condition exacerbated by an accidental impact?