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| PostMedia News Photo of Dinesh Kumar |
The National Post ran this story on Thursday. Mr. Dinesh Kumar is now 44 years old but twenty years ago
he was accused of killing his five week old son. It was the now
notoriously inaccurate Ontario pathologist, Dr. Charles Smith, who
concluded that the infant named Gaurov died as a result of shaken
baby syndrome. On Thursday the Ontario Court of Appeal cleared this
poor suffering man of all liability in his son's death. Of course,
his case was compounded by the fact that 20 years ago he was
subjected to such intense investigatory pressure that he could no
longer take it, so he confessed to taking his son's life. He was
initially charged with second degree murder but when he pleased
guilty , it was to a lesser charge of criminal negligence causing
death. For two decades he has lived with the shame, the sentence, the
ostracism, the record of being a baby killer, when in fact he was
innocent.
Confession is precisely what the MCFD
Team here in B.C. has expected and initially sought to extract from
the Baynes with regard to injuries sustained by their several week
old infant daughter over three years ago. When that confession was
not offered but rather a resounding declaration of innocence in every
early meeting with them, the MCFD became entrenched in a combative
posture that has been well demonstrated by the wording of risk
assessments and affidavits and cross examinations.
Now listen to an extract of the Kumar
case as it is reported by Linda Nguyen of the National Post. She
writes, “Dr. Smith concluded Gaurov died of shaken-baby syndrome.
But in new material filed with the appeal court, new opinions from
various medical experts have found that Smith’s conclusion is no
longer scientifically valid.” Lawyer James Lockyer took on Mr.
Kumar's case three years ago,. Mr. Lockyer is the founding director
for the Association in Defence of the Wrongly Convicted. He said,
“... 20 years ago, the theory offered to explain shaken-baby
syndrome was “en vogue... The trouble was that the attempt of an
explanation somehow became fact, became science — when it wasn’t...
Smith’s reputation went beyond police and Crown and judges, it
seemed to have affected defence lawyers of the day. If Smith said
something, it was almost bound to be right.”
The Baynes' child did not die. They are
so thankful for that yet nonetheless, in their case parents have
again borne blame for conditions of injury to their child because the
title of the diagnosis itself implicates non accidental injury. MCFD
practitioners have been willing to depend exclusively on a doctor's
SBS diagnosis, well in fact, the Director himself said that his
affidavit in support of the Continuing Care Application rested solely
upon the pediatrician's SBS diagnosis. Apparently in B.C. there is a
medical consensus that SBS is still 'en vogue.” No one within MCFD
sought to think outside this strict designation by seeking other
opinions. It was left to Zabeth and Paul themselves to uncover
medical experts who disagree with the blanket SBS diagnosis and
certainly disagree that it should apply in this case.That
contradictory evidence by the way is building daily and annually in the medical
arena and appears only appropriate that this well publicized Bayne
Case shall conclude with a Judge dismissing the validity of SBS as a
justification for the treatment of this entire family.
Not for a moment is anyone saying that
to question SBS is to turn on a green light for child abusers and
shakers. Rather the opposition is to the use of a triad of injuries
as an automatic guilty conviction if not criminally then certainly
practically within the framework of a child protection system with
the legal interruptive, invasionary power like that bestowed upon
MCFD through the CFCSA. Any way one slices this kind of case, the
RCMP could find no substantive evidence that warranted a charge of
any kind, and the medical diagnosis also came without actual evidence
of culpability. The suspicion that arises from the grave physical
conditions of an injured child is not the equivalent of evidence, and
even the suspicion must be set aside when the resultant diagnosis is
one which is increasingly disputed because the injuries may be
consistent with accident or one of various other conditions or
diseases.
