The pending Diocese of Bathurst/Bastarche- victim “compensation” package has resurrected an all too familiar issue: the duty to report.
Former Justice Micehl Bastarache has the names of a number of clerical molesters, both dead and alive, which he, he says, he can not release. Bastarache has said it will be up to the Bishop of Bathurst to decide if those names are disclosed to the public. The failure to release those names of known molesters has raised questions about the duty to report, specifically should Bastarche not be obliged to release the names of those known molesters who are living?
The duty report demands reporting to the Children’s Aid Society. We tend to think of it as a duty to report to police, but actually it’s a duty to report to CAS.
I have rounded up a a little more info on the duty to report. I am putting it here as a post because I believe it is applicable not only to the cases of Fathers Charles Picot and Levi Noel and the Bastarache settlement, but right across the country.
Every province and territory in Canada has legislation governing the duty to report. There are variations to each, but I believe all have the same basic intent, that being the protection of children through an obligatory duty to report suspicions of, amongst other things, child sexual abuse.
I suggest people check online to find the applicable legislation in your province or territory. Google “duty to report” and your province/territory. You might need to add legislation as a search term.
In Ontario the legislation (Family Services Act) makes it obligatory for various professionals – and the public – to report. The Act guarantees that no civil action shall be taken against those professionals who report suspicions arising from privileged or confidential information – unless the person ‘acted maliciously or without reasonable grounds for his or her suspicion” (A few years ago the guarantee was that “no action” would be instituted.)
Strange as it may seem, due to solicitor/client privilege, lawyers are immune from the duty to report Although I have read the Ontario act a number of times in the past, I had missed the fact that it does not abrogate solicitor/client information. The same holds true for New Brunswick. I haven’t checked others but my gut now tells me it is much the same.
I truly am taken aback that this is there in black and white. Why should the obligatory duty of all citizens to report cease because of solicitor/client privilege? Are children or a child any less at risk of being sexually abused because it happens to be a lawyer who is privy to the information that they are at risk? I can’t for the life of me imagine why?
Does this bye for lawyers figure somehow in the Bastarche decision not to report? Can Bastarache claim that the victims are his clients, hence he can claim solicitor/client priviledge?
For that matter, is Bastarache the victim’s lawyer? Or, since he was retained by the bishop, is he the lawyer for the Bathurst Diocese? Or, is he a lawyer for both the diocese and the victims? If the it’s the latter, is that not a serious conflict of interest?
In fairness I suppose Bastarache could be planning to report to CAS, could he not? But, were that the case I think he would have been more than pleased to disclose that fact to the media?
Still, if Bastarche doesn’t have a legal obligation to disclose to CAS, the bishop does.
To be honest, when it comes to the bishop I believe he has a moral obligation to disclose the names to his flock. Be a clerical molester dead or alive, I believe a bishop has a moral obligation as shepherd to disclose those names to his flock. I really do.
Anyway, here’s a link to information re the current duty to report legislation in Ontario: http://www.oacas.org/childwelfare/duty.htm, and , for those with an interest, another to the legislation as it existed when Perry Dunlop turned to CAS back in 1993: . http://www.theinquiry.ca/CFSA.hide.php
It was the duty to report in fact which prompted Constable Perry Dunlop to turn over David Slimser’s victim statement to the Children’s Aid Society. Perry did the right thing. He was charged under the Police Services Act. He was exonerated. The decision was appealed. He was exonerated.
Yes, for thoise unfamilair with that particualar travesty, Perry was charged under the Police Service Act – by his own! – for fulfilling his duty to report. The courts ruled that Perry did the right thing.
Not one Cornwall Police Service officer familiar with the David Silmser victim statement and allegations against Father Charles MacDonald reprted, and not one was charged for his or her failure to report. Not a one.
What does that say?
Furthermore, to my knowledge those who went after Perry with such a vengeance for fulfilling his duty to report have never seen fit to apologize. To the contrary. And that of course is another story.
I raise all of this to show that, while it all may look good on paper, it doesn’t seem to work that in practise. At least, it didn’t. Since the Perry Dunlops of this world are sadly few and far between it may be awhile before we learn if things have changed.
Has anyone ever heard of anyone being charged for NOT reporting to CAS? i.e., has a bishop ever been charged? or a teacher? or a priest? or a police officer? Have any professionals ever been charged for NOT reporting?
I don’t think I’ve ever hear of a single case. Perhaps I’ve missed them?
But, if people aren’t being charged, what’s the point of the law? What’s the point of a law if it’s never enforced?
For that matter, what’s the point of an override clause to protect those who report privileged or confidential information if such protection is denied?
And, for that matter, I repeat once again, why should there be immunity for a selct few from the duty to report? Why should there be immunity from lawyers who, for example, are privy to backroom deals (i.e., Church pay-offs) and out of court settlements which silence a victim and allow a known molester to continue to run amok? Why is it alright for children to be at risk in those instances? What gives lawyers the right to keep mum when they know a molester is out and about and children are or may be at risk?
So many questions.
Duty to report covers historical sex abuse
Anyway, I dug out documentation on the outcome of the charges laid against Perry for fulfilling his duty to report. I wanted to ensure I had my facts straight. I did.
I believe it’s important to touch on this because people need to know that the duty to report extends to cases of historical sexual abuse.
I also think that there may be claims that since the sex abuse related to the molester names in Bastarche’s possess are historial there is no need for anyone to report to CAS. Not so,- at least not, as you will see, according to three Ontario judges.
First, an excerpt from the 31 January 1995 decision by the Board of Inquiry on a motion to stay
Part 3 of the Child ad Family Services Act has been created to provide legislative response to the obvious public demand for protection of children. To facilitate such protection and to facilitate such reporting of suspected cases of abuse, the legislature created an immunity for those who form suspicion upon reasonable grounds and who are required by the legislation to forthwith report it. The reporting creates a facility to protect not only the child who may have suffered abuse but also any other children that might come into future contact with the suspected abuser.
Therefore, even after the child who may have been abused reaches the age of majority, the duty to report the suspicion continues to exist.
The complaint against Perry was stayed. The decision was signed by Marek Tufman (Presidign Chair), Nhung Tomkins (Biard Member) and Winston Davis (Board Member)
The decision of the Board of Inquiry was appealed.
The appeal was heard Justices Southey, McRae and Desmarais. I have scanned and posted the entire unanimous December 1995 ruling of the three Ontario Divisional Court justices. For those who want to go deeper into this, it is well worth a read. Remember, this is three judges agreeing that the duty to report applies to historical sex abuse cases.
And here, for those with little time to spare, are a few of the more salient paras from the above ruling:
In my view, Const. Dunlop was an active duty police officer who gained information in the course of his “professional or official duties” – it does not matter that he was not the officer specifically assigned to the case – all police officers have a primary duty to prevent the commission of crime. Nor does it matter that the complainant D.S. was no longer a child as he was at the time of the alleged abuse.
Const. Dunlop in September 1993 had “reasonable grounds to suspect that a child …may have suffered abuse.” He had a duty, therefore, to “forthwith report the suspicion and information on which it is based to a society.”
I am of the view that the duty imposed by s. 72 is paramount. To treat the duty of disclosure as subject to orders of a superior officer would be contrary to the intention of s-s (7) ands would defeat the paramount purpose of the Child and Family Services Act.
Const Dunlop was asked on September 29, 1993, to turn in any copy f D.S.’s statement in his possession. He refused to comply with this request but rather gave the C.A.S. a copy on September 30. His refusal to comply did not avoid the protection to which he was entitled under s-s (7) He was under a duty pursuant to s-s (3) to report the abuse “and the information on which it is based” to the C.A.S.
Need for clarity
Justice Normand Glaude made the following recommendation:
The government of Ontario should amend the Child and Family Services Act to clarify that the duty-to-report provisions apply to cases of historical abuse where there is risk that the alleged abuser has current access to children
Perhaps there is indeed a need to spell it all out in black and white so that there can never again be a Perry Dunlop dragged through the wringer for fulfilling his duty to report …. by his colleagues who failed to do so.
And perhaps only by spelling it out in black and white can we ensure that children are not needlessly left at risk.
And perhaps a stiffer sentencing for failure to report? and stringent enforcement of the same?
This is presumably about protecting children, is it not?
That’s my two cents worth. I don’t know if it enlightens or creates more confusion. The trouble is, it IS confusing!
Perhaps others can weigh in here. It would also be intersting and enlightening to hear what differences exist from one province to the other.
I have a bit more information on Father Phillip Jacobs. I will post it later in the day.
Enough for now,