Duty to report

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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.) 

Solicitor-client privilege

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.  

In Ontario

 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.    

07 December 1995:  Ontario Court (General Division) (Divisional Court) – Southey, McRae and Desmarais JJ: Between Police Complaints Commissioner Police Constable Perry Dunlop

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,

Sylvia

This entry was posted in Accused or charged, Bishops, Canada, Clerical sexual predators, Cornwall, Perry Dunlop, Scandal, Silmser and tagged , , , , , . Bookmark the permalink.

8 Responses to Duty to report

  1. Michel B. says:

    Pretty clear in Ontario that if they have access to children it must be reported. The onus here should be put on the Church as an organization to divulge the placement of their priest specifically if there are any or have been any allegations period. They should have to indicate to the respective Child Welfare authorities that a person may be in a position to cause harm. They should also be registered in the Child welfare registry so that their names come up if other allegations come up in other jurisdiction. The test for registry of child abusers is that the allegation should be valid and verified.

  2. Sylvia says:

    Do you think Michel B that when a diocese quietly settles a lawsuit out of court with a victim that that constitutes a valid and verified allegation? I do. I can’t see how it could be otherwise? Ditto in those instances where a victim who approaches diocesan officials with allegations is quietly paid off.

    What of the duty to report there? Is there some way to see the dioceses fined for failure to report? Granted it’s a paltry $1,000 fine, but still, should those who aware of such settlements which are coupled with a concurrent failure to report not be obliged to report the failure to report? Do you follow me?

  3. prima facie says:

    Well Sylvia, you sure know how to light my fuse….again. Isn’t it just horrid. The laws have no teeth and they are legislated to be manipulated.

    Boy, investigations like “Project Truth 1 and 2” and inquiries like the Cornwall Public Inquiry sure educated the country and the world, as it was promoted to be doing—right!!! Boy, things have really been changed for the better.
    (what a disgusting joke…on all of us).
    And, because of the “regionalization” and sanitized dissemination of news, most people in Canada, (outside of a 100km radius of Cornwall) barely or ever heard of Project Truth, Cornwall Public Inquiry, Perry Dunlop, etc.

    All the above did was show the “dirty ones” how to further elude prosecution, manipulate the facts and evade disclosure.

    BUT oh yes, throw the good cop in jail.
    How has Perry, Helen and family remained sane?…or have they? How did we remain sane or restrained? Were we just too much in shock? I haven’t heard from them for some time.

    These are the types of things activists should really be “swarming” about……pounding down the “legislative” doors, so-to-speak.
    Even the laws, as you have “copied” to the site, appear to be clear!!
    “Duty to Report” is of paramount importance for the protection of children, the community and society.

    Despite some police and other idiots in the Cornwall area and other areas, who claim they didn’t have education, knowledge, technology or training (and for the one’s who have been around this website for several years and who know me), yes I mean the good people and the “scum buckets,…. YOU KNOW WHO I’M TALKING ABOUT PEOPLE—-you lied!!…over and over again, day after day, month after month..you “intentionally” robbed people of their lives!!

    When I was very briefly a cop in the late 1970’s, YES WAY BACK THEN,(different part of the country), even I knew the difference between right and wrong and so did my Sgt., Staff Sgt, Insp.,Deputy Chief and Chief….
    AND, when I worked with youth-adolescents, in Cornwall, in the late 1980’s-1990’s, I knew, my “duty to report” and so did my peers and subordinates!!!!
    But unfortunately, in Cornwall and elsewhere, there are obviously too many “blind-following”, self-serving, self-promoting, butt-kissers….who would rather “circumvent” and/or “supercede” “duty to report”….”get the point”?

    James P. Bateman
    “Prima Facie”

  4. Michel B. says:

    Yes it’s an admission that a concern became known at the very least as it was elucidated clearly in the settlement and as result constitutes a report that should be considered within the duty to report clause. Especially if that frocked person was to have access to children in any future dealings as a member of the church. The repsonsible superior would also be obliged to be report to other child welfare authorities in different provinces. As far as the fine, I think that bishops holding responsibility over their priest would constitute a professsional within the meaning of the act and he would therefore be liable to a 10,000 dollar fine. The fines are higher for professionals who fail to report see a bit further in the act.

  5. Sylvia says:

    I agree James, It does stir ugly memories. Not a stellar moment in Canadian history.

    Michel, I don’t think that $10,000 fine is related to the the Duty to Report. I believe it falls under “Homemakers” – different offences and different penalties. I recall over the years that the $1,000 penalty was always seen as a bit of joke – an insult in fact to those children placed or left at risk.

    I will link ot the actual act itself: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c11_e.htm

    Scroll down to the header “Duty to Report” Section 72 (1)

    Then look at subsection (6.2) which, like many sections of the act, is due to be amended.

    A person convicted of an offence under subsection (4) or (6.1) is liable to a fine of not more than $1,000. 1999, c. 2, s. 22 (3).

    Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (6.2) is repealed by the Statutes of Ontario, 2008, chapter 21, subsection 3 (6) and the following substituted:

    Penalty

    (6.2) A person convicted of an offence under subsection (4), (4.1), (4.2) or (6.1) is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both. 2008, c. 21, s. 3 (6).

    See: 2008, c. 21, ss. 3 (6), 6.

    So, good news. The potential of a $10,000 penalty is somewhere on the horizon, …as is potential jail time.

  6. Sylvia says:

    I was just re-reading the intro to the act:

    The following amendments have been enacted and will be incorporated in a subsequent consolidation:

    Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, s. 217, enacted October 25, 2010.

    Does that mena that the areas highighted in gray are now law? I think it may? Can anyone confirm?

  7. Myomy says:

    The duty to report is very important as illustrated by the case of Perry Dunlop. Perry reported the abuse based on strong well founded evidence to the agency responsible for protecting children. Even if this did not result in any action being taken against the abusers at least the responsibility for this would not be on Perry Dunlop but on the authorities who received the report but did not take action. This protected Perry Dunlop from suffering any repercussions because of the law….. O never mind … that is what should happen not what does happen!

  8. Lina says:

    “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.”

    I total agree with your statement Sylvia!

    The Bishop of Bathurst, what is wrong with this man, this leader?
    More pressure should be put on this Bishop. Why are people so afraid of him, it must be that fear one needs to be respectful and put your total trust in this Bishop because he is a man of God. God I trust. This Bishop?

    Believers (Christians) need to be reminded that in no way YOU can buy your way into heaven. That price has already been paid in FULL!

    You may wonder why an unpleasant event like what happened to the “Archbishop Andre Leonard” in (Brussels) Belgium, occurred. (Pie in the face)
    I’m making myself crystal clear here…..I’m NOT saying or promoting to disrupt a Mass.

    If these OBVIOUS evil cover-ups keep going on, pretending their flocks are in the mindset that they will back their Bishop no matter what he does and say with no questions ask? Those days are coming to an end.

    The followers of the Church will get more vocal and will protest more because of the injustices being done and being totally ignored big time.

    The Catholic bishops and all others have brought this chaos upon themselves with all this: going into a damage control public relation mode, let’s keep it quiet, let’s pray it will all go away. Pay their lawyers to delay justice for the victims, better yet short change the victims with a good old-fashioned bucket of Catholic guilt and shame.

    Gee whiz…the Church still WANTS to protect the names of these criminal clergy dead or alive. Unbelievable!

    You got to love the benefit of the doubt the Church gives to these criminal priests (I’m being sarcastic) after all, a lot of money has been dished out to have these men ordained. They got to get their money worth (the people’s money) from these wolves in sheep clothing.

    The turning of the other cheek, these leaders, their mental process is the only direction they want to go even though they tell us they want to do all they can for justice sake for all the clergy abuse victims. They have changed the way things are done now?
    Oh…everything is sunshine and lollipops and rainbows everywhere!

    It does pacify the flock when the Bishop sends those memos to their parishes. Many parish priests do not have the nerve to even read this page(s)of the statement from the Bishop to their parishioners. It is put at the back of the church among other booklets and papers. A small reminder note in the bulletin is there if you want to pick up that letter the Bishop wrote next time you come to church. If you did read it & understood it. Many folks see its all official now, all is well in this Bishop’s world among his loyal entourage of priests, nuns, and faithful followers. Many parishioners follow the bind faith road of disillusion and acceptance. Some are alright as long these clergy abuse scandals doesn’t affect them personally or even touch their loved ones. Bishops and many priests like their people when they do not need to think for themselves. This makes their work and vocation so much easier if these folks just let their leaders of the Church do their thinking for them.

    Can you blame your average parish priest? They do not pay him enough to put up with all his parishioners’ questions, insults, e-mails & headaches they are giving him. Some priest should put a disclaimer before they speak. They follow what the bishop said but you know they do not agree with him. If they anything in short it is God’s will!
    No wonder some parish priests need to take a sanity vacation. {I pray my parish priest doesn’t fall in some kind of scandal on those sanity vacation trips of his. It’s enough for a good priest to do bad things for tension release. (I’m not talking about criminal acts here) Everybody has their breaking point even a good priest.}

    These Bishops, clergy,…stop the senseless crimes by covering them up with your lies of deceptions and denials.

    These criminal enablers are so good at promoting and throwing this “virtual nasty barn yard honey pies” at all the victims, supporters of justice for victims and to the public at large!

    Lina

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