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On the issue of the Pembroke Diocese, reporting to police and  the Child and Family Services Act “Duty to Report.

This gets rather convoluted.  I will try my best to explain.

 Backgrounder

(1) Provincial legislation

Perhaps the best place to start is with the Ontario Child and Family Services Act (OCFSA).  This is provincial legislation which, in part, governs the duty to report.  I believe every province and territory in Canada has  similar legislation.

I will quote sections of the act throughout this article,  Those who wish to see it in it’s entirety can access the online version via this external link:  Scroll down to section 72 headed “Duty to Report.”  

A simpler read with some explanatory notes can be found in this brochure published by Service Ontario.

And this from the Ontario Ministry of Child and Youth Services

And, important to know, according to OCFSA, a “’child’” means a person under the age of eighteen years; (‘enfant’)”  However, according to the Ontario Ministry of Children and Youth Services the duty to report applies to a child who is under 16.  The Ontario Services brochure  also states that the duty to report applies to a child under 16.

I don’t see anywhere in the OCFSA itself that the duty to report applies to a child who is under 16.  If I have missed it could someone point it out?  It seems a strange omission so if I have overlooked it I really would appreciate if someone could point it out to me.

Anyway, as you will see, in the Province of Ontario there is no legal duty to report to police.   I believe the same may hold true for other provinces and territories.  Check online for the legislation which covers the duty to report in your province or territory.

There is no duty to report to police.  There is, however, a duty to report to Children’s Aid or it’s equivalent.

The “Duty to Report” as outlined in the OCFSA, demands in part that:

Despite the provisions of any other Act, if a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society [Children’s Aid]:  

. . . 

3. The child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.

4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in paragraph 3.

 . . .

Those who do not report are, as stated below,  guilty of an offence

Offence

(4)  A person referred to in subsection (5) is guilty of an offence if,

(a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and

(b) the information on which it was based was obtained in the course of his or her professional or official duties. 1999, c. 2, s. 22 (2).

This duty to report applies also to the following persons:

(5)  Subsection (4) applies to every person who performs professional or official duties with respect to children including,

(a) a health care professional, including a physician, nurse, dentist, pharmacist and psychologist;

(b) a teacher, person appointed to a position designated by a board of education as requiring an early childhood educator, school principal, social worker, family counsellor, operator or employee of a day nursery and youth and recreation worker;

(b.1) a religious official, including a priest, a rabbi and a member of the clergy;

(b.2) a mediator and an arbitrator;

(c) a peace officer and a coroner;

(d) a solicitor; and

(e) a service provider and an employee of a service provider. 1999, c. 2, s. 22 (3); 2006, c. 1, s. 2; 2010, c. 10, s. 23.

And, note the following.  Some persons who are party to a failure to report are guilty of an offence:

(6.1)  A director, officer or employee of a corporation who authorizes, permits or concurs in a contravention of an offence under subsection (4) by an employee of the corporation is guilty of an offence. 1999, c. 2, s. 22 (3).

Those persons convicted of failing in their duty to report, or one who authorizes, permits or concurs in such failure, can, at the present time,  face a fine of up $1,000.  A rather paltry sum I’d say.  The good news here is that this penalty will be replaced by one which ups the fine to “not more that $50,000” and adds the option of imprisonment for up to two years.  The penalty can include both a fine and imprisonment.

Lawyers and lawyers alone are exempt from the duty to report:

(8)  Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client. R.S.O. 1990, c. C.11, s. 72 (8).

That means that a lawyer has no duty to report any information regarding a molester.  It matters not if he knows a child molester is serving in a parish, or teaching in a school or running a boy scout troop.   Solicitor-client privilege prevails.

For those who may not know, there is no exemption in Ontario for what is heard in Confession.  Roman Catholic clergy are supposed to be legally bound to report what they are told in Confession.

(2) Perry Dunlop

The essence of the duty to report in CFSA has not changed since Perry Dunlop fulfilled his duty to report the David Silmser sex abuse allegations against Father Charlie MacDonald. 

I posted the act  sometime in 2006. Those who wish to check for themselves can do so by comparing with the current version of the act

Many of you will recall that Perry Dunlop went to CAS when he discovered that his police force (Cornwall Police Service) was no longer investigating David Silmser’s child sex abuse allegations against Father Charles MacDonald.  Perry had read David’s victim statement and felt the allegations were credible.  He was aware that  Father MacDonald was still in active ministry.    Perry believed that children were at risk.  He decided he had to fulfill his duty to report to CAS.  The fact that Perry was a police officer was irrelevant:  he still had a duty to report to CAS.

We all know what happened. 

Perry Dunlop became the target for the ire of fellow police officers.  Perry was charged with discreditable conduct and breach of confidence under the Police Services Act.  Attempts to have him convicted failed.  On 31 January 1995 the charges against Perry were stayed. 

The Police Complaints Commission appealed.

On Appeal the Divisional Court ruled that

“Constable Perry 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.’”

The court also ruled – and this is important – that it did not matter that David Silmser was no longer a child when he reported the allegations.

Years later at the Cornwall Public Inquiry the issue of duty to report (to CAS) raised its ugly head again and became the stuff of much dancing on the head of a pin and finger-pointing.   I’m not going to get into all of that.  Suffice to say that (1) Staff Sgt Garry Derochie testified that there was a consensus amongst CPS officers that the allegations against Father Charlie MacDonald did NOT fall within Section 72 of the OCFSA – and that Perry Dunlop was the only officer who thought otherwise; and, very important  (2) in his final report, Justice Normand Glaude recommended that:

“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 a risk that the alleged abuser has current access to children.”

The Ontario government which commissioned the $60M  inquiry has not to date seen fit to comply with Justice Glaude’s recommendation.

(3)  “Historical” sex abuse

There is no mention of historical or historic sex abuse in the OCFSA.  None. 

Somewhere along the line, however, a notion has gained ground that adults reporting childhood sex abuse are to be treated differently than minors reporting such abuse, and with that comes the companion notion, real or perceived, that those molesters who have eluded detection until their victims are adults are less of a threat to children and the crime is a lesser a crime..

I blogged on this several times as the Cornwall Public Inquiry lumbered its way along.  Back on 01 May 2006 I blogged the testimony of Detective Wendy Leaver (Toronto Police Services Sex Crime Unit)  and had this to say:

Historical sexual abuse is NOT, as it implies and most assume, sexual abuse which happened years and years ago.  In some instances that is indeed the case, but in point of fact historical sexual abuse is actually sexual abuse which, according to most experts, is  reported to authorities after the victim is 16-years-of-age.

So, for example, one of Jacque Leduc’s “alleged victims” was sixteen when police showed up on the doorstep of the boys’ home, and to make a long story short the boy eventually disclosed his very current sexual abuse allegations against Leduc.  However, because the boy was sixteen at the time his allegations are categorized as historical.

In short, it matters not how long ago the abuse was going on or what age the child was when it started:  if the victim was 16 or over when he reported it to authorities his abuse is categorized as “historical.”

As far as I’m concerned, historical child sexual abuse is as much child sexual abuse as child sexual abuse, and those who commit these “historical” crimes are every bit as much molesters.  Perhaps indeed there should be additional punishment meted out for the many molester who have  managed to fly under the radar and thereby avoid detection, elude justice, deceive and manipulate the naive and continue to groom and prey.

No matter.  What this relatively new child sex abuse nomenclature has effectively done is draw a dividing line between those victims who report their abuse while they are minors, and those who report when they are adults.  In many instances the designation “historical” has negatively  impacted the manner in which the allegations are handled by various police officers, and also influenced the manner in which the molesters of “historical” abuse cases are treated – as in they are often not viewed as a threat to children.

The Pembroke Diocese Protocol for Sexual Abuse Cases Involving Minors

Now to the Pembroke Diocese Protocol for Sexual Abuse Cases Involving Minors. This is where all of this talk began, the charges against Father Howard Chabot and subsequent media coverage and blogging of those charges. Some questions and some comments…

(1)  Is there a duty to report to police in the Pembroke Diocese Protocol for Sexual Abuse Cases Involving Minors?

The answer is no. 

I mentioned a few days back that I had contacted the Pembroke diocese for clarification of the Protocol.  I wanted to get things sorted out after reading a  30 July 2013 Ottawa  Citizen article “Pembroke priest charged in alleged sex assault” in which Meghan Hurley wrote the following:

“A priest appointed by the diocese was put in charge of taking complaints of sexual assault involving children. The priest is obligated to report allegations that a child was sexually assaulted to the police.”

I was puzzled.

A diocese with a protocol demanding a duty to report to police?  I hadn’t heard of one, at least not in Ontario.  As you have seen, there is no legal duty to report to police so , while it would be very welcome news to find a diocese implementing such a protocol, it would be very surprising.

I called Meghan Hurley.  She told me that she had talked to diocesan spokesman Bruce Pappin, and, that Mr. Pappin told her that civil authorities includes police.  

I emailed Mr. Pappin.  We have had a few email exchanges on the subject,  with me seeking clarification of what the Protocol says and he conferring with Father Peter Proulx before responding.  He also told me that he doesn’t recall telling Meghan that civil authorities included police, and that his recollection of his discussion with Meghan was that it centred more around the history of the document. 

It still isn’t sorted out, but the bottom line is that the Pembroke Diocese Protocol does not demand  that child sex abuse allegations be reported to police.  

Yes, there is the possibility of calling police, but that, according to Mr. Pappin,  is only when  there is no CAS in the area . 

 “there are remote areas of the Diocese in both Ontario and Quebec where there is no effective representation by those child protection agencies because they are based in the larger urban centres. It is then up to the reporting individual to decide if it may be more effective to notify police first, with the understanding that they would notify the appropriate child protection agency”

I truly don’t know if this does or does not comply with teh OCFSA.  It may well.  In the  government of Ontario  guidelines, Reporting Child Abuse and Neglect:  It’s Your Duty  we read:“If you think the matter is urgent and you cannot reach the CAS, call your local police.”

I don’t see such a directive in the Act itself, but,  the above quote comes from the Ontario Ministry of Children and Youth Services.  If the left hand of government knows what the right is doing and saying, then, perhaps  in those instances where the matter is deemed to be “urgent” and CAS can not be contacted,  police may be contacted?  

We know from elsewhere that police have an obligation to report to CAS, so if an individual is, for whatever reason  unable to report to CAS and instead contacts police,  the police in turn must contact CAS. 

The bottom line, however, is that there is no duty to report to police in the protocol.

According to Mr. Pappin, in the Province of Quebec, the reporting is to La Protection de la Jeunesse. 

(2)  Is there is difference in the protocol when it comes to reporting child sex abuse allegations involving minors, and  “historical” abuse allegations?

Yes, alas, there is difference

Here is an excerpt from the protocol, this one entitled “Obligation to Report.” Read carefully:

2. Obligation to Report

All citizens who have reasonable grounds to suspect that a child is, or may be, in need of protection, have a legal obligation to forthwith report this situation, along with supporting information, to Family and Children’s Services in Ontario (if the child is under the age of 16 years) or La Protection de la Jeunesse in the Province of Quebec (if the child is under 18 years of age). For the purposes of this protocol, the term “child” refers to anyone under the age of 18 years.

“The Bishop’s Delegate will ensure that the civil authorities have been notified. ..”

And then there is this excerpt, entitled “Report by an Adult”:

3. Report by an Adult
In a situation where an adult person alleges sexual abuse while he or she was a child, the Bishop’s Delegate will immediately inform the Complainant of the Complainant’s right to contact the police to commence a criminal investigation. If the Complainant prefers another procedure, the Complainant’s wishes are to be respected. . .

The latter, “Report by an Adult” is clear.  When an adult reports there is no duty to report to police, nor is there any duty to report to CAS.  The complainant will be informed of his/her “right” to go to police.  That’s it.

What about the Obligation to Report?

Well, in reading “Report by an Adult” it is obvious that a distinction has been made between someone under 18 reporting, and an adult (someone 18 or over) reporting.  And it is obvious that there is a difference in how the diocese responds to “historical” allegations, and how it responds to allegations of someone under age 18,

 Look at this section of the protocol regarding the duty to report (obligation to report)  again. 

All citizens who have reasonable grounds to suspect that a child is, or may be, in need of protection,  have a legal obligation to forthwith report this situation, along with supporting information, to Family and Children’s Services in Ontario (if the child is under the age of 16 years) or La Protection de la Jeunesse in the Province of Quebec (if the child is under 18 years of age). For the purposes of this protocol, the term “child” refers to anyone under the age of 18 years.

You see that the duty to report in Ontario relates to a “child” under the age of 16 years?  And that  the duty to report in Quebec relates to a “child” under the age of 18 years?

The Pembroke Diocese straddles both the Province of Ontario and the Province of Quebec, hence the diocese has to comply with reporting legislation in both provinces.  It seems that perhaps a decision was  made to standardize the protocol for both provinces, hence the protocol defines  “child” as “anyone under the age of 18 years.”

But, does anything there tell you that the reporting is to be done if and only if the abuse transpired when complainant/victim was under age 18?

Not really, does it?  However, the next para with the title “Report by an Adult” is a heads up to go back and sort it out, because, as I have said before, this clearly indicates that these are being handled as “historical” abuse allegations and are therefore being treated differently. 

Thankfully I don’t have to try to explain this further.  According to Mr. Pappin (emphasis in original):

“The duty to report applies when the victim is under 18 at the time of the report, not the time of the incident.  When, as in Fr. Chabot’s case, the allegation is made after the alleged victim is an adult, the alleged victim has the option of going to the authorities or not. The Bishop (or his delegate) has to respect the privacy of the adult complainant. This process is outlined in section 3 of the reporting section of the protocol.”

(Section 3 is “Report by an Adult.” )

So, the “Obligation to Report” is pertinent only to those complainants who are under age 18 when they report their abuse.  In those cases there is no duty to report to police, but there is a duty to report to CAS.

Now, for clarity’s sake,  back briefly to  the Ottawa Citizen and the article by Meghan Hurley in which she wrote: 

When an adult brings forward allegations of sexual assault, the priest will tell the victim to contact the police.”

That’s not the case.  The victims are not told to contact police.  As I said earlier, the complainants/victims are not told to contact police, nor are clergy or the delegate obligated to report to police.  The victims/complainants are advised of their “right” to contact police. 

And now back  to what I see as the marginalization of victims of historical sexual abuse, the minimization of the crimes of their molesters, and the concurrent minimization of the threat these molesters pose to the community, specifically to children.

The protocol doesn’t say it, but  what is happening is that all historic allegations  are treated in a different manner, and are in fact minimized.  Add to that the fact that when the molester/suspect is alive there is no concern whatever that children are or may be at risk.  None. 

And there you have it.  True, according to the protocol an adult complainant will be informed of his/her “right” to go to police to commence a criminal investigation, but, that’s it.  When it comes to historic abuse and the protocol the duty to report is non existent.

As an aside,  look again at this section of # 3 Report by an Adult  (emphasis added):

“… the Bishop’s Delegate will immediately inform the Complainant of the Complainant’s right to contact the police to commence a criminal investigation. If the Complainant prefers another procedure, the Complainant’s wishes are to be respected.”

“If the compliant prefers another procedure”? 

What other “procedure” might a complainant prefer? 

What “procedure” might be preferable to an adult who, as a child, endured sexual abuse at the hands of a priest?  

I just don’t know.  I know of many a victim of clerical sexual abuse across this country who, as an adult, went to a diocese and wanted no more than an acknowledgment of the abuse and an apology. They didn’t get it.

I know of victims who wanted an apology and were offered money.  Some refused.  Others accepted.

I know of victims who wanted an assurance that “Father” would be removed from ministry and not allowed near children.  Many were assured it would be done.   In a good number of cases “Father” later surfaced in another parish, sometimes in another diocese.

I know of victims who simply ask that “Father” be sent for treatment so that he can ‘get better.’  “Father” is sent off for treatment, and in many cases, in short order is recycled into another parish, or diocese, or ministry, – or maybe even another country.  And, yes, sad to say, in a number of those cases children are willfully placed at risk, and sadder yet, are molested.

 What kind of “procedure” would an adult victim prefer as an alternate to reporting “Father” to police?  Can anyone help me here?

(3)  A soft touch for molesters whose victims struggled for years to come forward

As I said, when allegations are reported by an adult victim, everything changes.  It may not be great when a victim reports before age 18, but it’s really unconscionable when the victim happens to be older than 18. 

It’s great for the “historical” molester mind you –

Think  it through. 

 Why the difference in protocol  when, for example, the accused priest in each of the following cases is alive, age 58,  and serving somewhere in some capacity as a priest?

 (i)  a 17-year-old reports that he was molested by Father V eight years ago  (ie eight-years-old when abused)

 (ii)  a 16 year-old reports that he was molested by Father W yesterday (i.e., 16-years-old when abused)

 (iii)  an 18 -year-old reports that he was molested by Father X  two years ago (i.e., 16 years old when abused)

 (iv)  a 20 year old reports that he was molested by Father Y five years ago? (i.e., 15-years-old when abused)

(v)  a thirty-year-old reports that he/she was molested by Father  Z 20 years ago (i.e. ten-years-old when abused)

 Believe it or not, the only duty to report to anyone is in cases i and ii.  In both those cases there is a duty to report to CAS.  In each of the other three cases, there is no duty to report to anyone.

Crazy?

I think it is.  Dangerously crazy.

 Why, for example,  are Fathers W and X considered a risk to children, while Fathers Y and Z are not?

 Where’s the logic here?    Are Fathers Y and Z any less molesters? and are they any less a threat to children than Fathers W and X?  If yes, how so?

 (5) Does the  Pembroke Diocese protocol adhere to the OCFSA duty to report?

 I’d say no.

Remember Perry.

The charges against Perry were stayed.

In it’s 31 January 1995 decision to stay the charges against Perry the Board of Inquiry ruled in part:

Part 3 of the Child and 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 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.

In it’s 07 December 1995 decision to dismiss the appeal of the former with costs the Ontario Divisional Court ruled in part that:

“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 proimary 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 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.

The duty to report, and the intent of the OCFSA – even with an adult complainant,  was clear to many, judges included. 

Even Justice Glaude seemed to recognize that the duty to report to CAS encompasses historical allegations.   In his Report Justice Glaude wrote:

“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 a risk that the alleged abuser has current access to children.”

The judges at Divisional Court had no problem determining that Perry did the right thing and David Silmer’s age was irrelevant.

But, on the heels of a $60M inquiry, a call for clarity in the Act.

It seemed to be understood by many, but not, obviously by all.

And, to date,  no response .  No attempt by government officials to quell this confusion.

And, here we are. 

The Pembroke Diocese has protocols which would ensure a Perry Dunlop’s silence.  The protocol is clear. There is no duty to report to CAS when the complainant is an adult.

Why not?

Who, benefits?

Not the victim.

Certainly  not the children who are or may be willfully placed or left at risk.

Not parents who have, unbeknownst to them, naively placed their trust in a real or suspect molester.

Who then gains?

Well, there is no denying that the molester gains.  His name and crimes will probably never the see the light of day.

Those clergy who may have enabled, recycled or covered-up for the  molester gain.  Like the molester, their names and their betrayal of the faithful  may never see the light of day.

Beyond that, I really don’t care much who else gains.  There is a problem here.  A serious problem.

Those who are not from the Pembroke Diocese, check your diocesan sex abuse protocols.  I think you will find much the same thing..

Meanwhile Catholics in the Pembroke Diocese are saddled with a protocol which minimizes the abuse endured by an adult victim, and likewise minimizes the threat a molester poses to innocent children.  Those who drafted the legislation without doubt are familiar with the OCFSA.  Why then the obvious distinction between duty to report for those complainants under 18 and those who are 18 or over?  Is there a lawyer advising there is no need to comply with a duty to report when the allegations  are deemed historic?   Is that what’s going on here?  Or, is it just a  plain old case of go gently on the molesters ?

The one for sure is that the safety and well-being of children are not foremost in anyone’s mind anywhere.  Molesters are.  Why else a protocol which first and foremost fails to demand a duty to report to police for ALL sex abuse allegations ? Why?

In closing, lest anyone think I am advocating a duty to report to CAS here, I am not.  That’s the legislation we have.   We’ve had it for years.   Right now we’re stuck with it.   However I must say that as bad as the situation was in Cornwall I still believe that the primary duty to report should and must be to police.  We are talking about criminal acts involving children.  Let every police officer be bound by a duty to report to CAS if need be, and, if need be let them seek assistance from CAS, but, the duty to report must be to police, and it must be police who investigate all reports child sex abuse.

Enough for now,

Sylvia

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29 Responses to Who gains?

  1. Mike Fitzgerald says:

    Thank you Sylvia! I agree entirely! Sexual assault is a criminal act, and must be investigated by the local police authority ( assuming it has integrity), not by any jaded group such as the church, or any other special interest group.
    When governments get involved, we end up with the Charlie MacDonalds and the Jose Silva’s charades.
    The whole mess is lame , pathetic, without integrity or any semblance of credibility. Mike.

  2. Claire I Fied says:

    I may have missed the drift (again) but here goes:(If you simply omitted “to police” most of the time you mention “duty to report” Syliva, then some of this response falls in ‘missed the drift’ category):
    The OFCSA protects children, and until there is new legislation to set out the procedure(s)/responsibilities/duty to report (and to whom) for adults who were children at the time of the/a offence(s), it is not clear for anyone (friend; doctor; psychiatrist; etc) as to what the law/procedure is for “historical” abuse.
    ”Backgrounder” There are two interpretations in the OFCSA which defines “child”: Interpretation s.3(1) [child” means a person under the age of eighteen years; (“enfant”)]; and PART III (Child Protection) Interpretation s.37(1) [“child” does not include a child as defined in subsection 3 (1) who is actually or apparently sixteen years of age or older, unless the child is the subject of an order under this Part; (“enfant”)”]
    query: I don’t see anywhere in the OCFSA itself that the duty to report applies to a child who is under 16. If I have missed it could someone point it out?
    s.72 of the OCFSA Duty to Report (to CAS/FCS) applies to a child who is under 16 [as defined in s.3(1) and s.37(1)] – as does most of the OCFSA (exception to 18 if CAS is already in the care of a 16 yr old) and everyone is obliged do report (exception lawyer/client privilege)
    OCFSA s1.(1) [The paramount purpose of this Act is to promote the best interests, protection and well being of children] and that is the CRUX of the matter. Although there may be numerous opinions/rulings by boards or judges on the shortcomings of the OFCSA, the OFCSA is for children who fall under the duty of the CAS to protect. (The OFCSA was revised in 2008: Link (if I can post a link) to what additions/changes were made http://www.elaws.gov.on.ca/html/source/statutes/english/2008/elaws_src_s08021_e.htm perhaps in part due to “Cornwall”?
    A new legislation is required to set out the procedure(s)/responsibilities/duty to report (and to whom) for adults who were children at the time of the/a offence(s): in ADDITION to the OCFSA.
    Pembroke Diocese Protocol (1)
    Query: Does the Pembroke Diocese protocol adhere to the OCFSA duty to report?
    I think yes: OFCSA “paramount purpose protection and well being of children” – not an adult who was a child as defined under the Act at the time of the offence(s). The CAS and police assistance would not/does not “barge in” on an adult and apprehend him/her to remove the adult from the home to protect them from a potential threat against them. This is what the CAS can do if they believe a CHILD is in need of protection and one of the reasons why OFCSA exists to authorize them to do so.
    Until there is new legislation to set out the procedure(s)/responsibilities/duty to report (and to whom) for adults who were children at the time of the/a offence(s), the Pembroke Diocese protocol(and other protocols?) does adhere to the OCFSA as it is written today/as it pertains to a child. Otherwise the penalty to not report to FCS would apply. Law/procedure as to how anyone can do/follow when an adult was a child at the time of the offence doesn’t appear to exist – Semantics or not: is there a difference between saying to an adult: “Do you want me (friend, doctor, psychiatrist, clergy, etc) to report it to the police so they can contact you to obtain your statement and determine if charge(s) should be laid?”; “I (friend, doctor, psychiatrist, clergy etc.) will report this to the police on your behalf and they will contact you to obtain your statement to determine if charge(s) should be laid” and “You have the right to contact the police to give your statement to determine if charge(s) should be laid”
    (3) ..soft touch”
    The OFCSA defines child and the legislation is followed. There doesn’t appear to be any law/legislation which pertains to an adult who was a child at the time of the offence(s).
    Pembroke Diocese protocol:
    I note s2. Response to the Respondent
    (a) Immediately upon being informed that a public accusation or charge has been made, the Bishop will relieve the Respondent of his/her duties and the normal legal investigation will follow. The Respondent will not function in his/her assignment in the Diocese, or elsewhere, until such time as the matter is finalized.

    Based on the above section, if (although retired) Fr. Chabot was saying masses at various parishes (the current parish priest absent/ill/holidays?) prior to the charge for the alleged incident, “a public accusation or charge has been made”, so until “such time as the matter is finalized” [presumably meaning court case finished/verdict reached] he “will not function in his/her assignment in the Diocese, or elsewhere” [meaning he would not be permitted to say any masses, nor do any baptisms, funerals or weddings (sacraments) until this charge/court case has been finalized – one, two or more years? nobody knows the duration].
    As far as I am concerned, (if you cannot tell from the frequent repetition already) it is necessary that new legislation is required to set out the procedure(s)/responsibilities/duty to report (and to whom) for an adult who was a child at the time of the/a offence(s) in ADDITION TO the OCFSA which is in place to protect children. Is this ‘started’ through asking our respective MPP(s) to draft and introduce the legislation for consideration? It appears until there is something enacted, it appears that everyone is left to their own devices to figure out the how and who to report a ‘historical’.

  3. B says:

    Sylvia,

    I believe that in your 6th paragraph under “backgrounder,” you intended to write “I don’t see anywhere in the OCFSA itself that the duty to report applies to a child who is under 18” (rather than 16), meaning between 16-18?

  4. B says:

    Claire i fied,

    When you state, “Semantics or not: is there a difference between saying to an adult…”, are you really considering a 16-year old child, who might still be in the process of being molested, as a regular adult? Most of the 16-18 year olds I know, although quite mature in some ways, are still sexually immature, and are still trying to figure out what to do with a myriad choices in their lives–they are too young to be dismissed as “adults,” and the question of whether/not they should report the abuse should not be another confusing choice for them at such a devastating time.

    It seems to me that the legal–and psychiatric assessment–system attempts to minimize the damage done by molesting priests who prey on older teens by reclassifying them as non-pedophiles under various categories–just so that they can bring down the numbers of admitted pedophiles in the clergy, and make it seem as though these young people were old enough to be consenting adults/already be sexually active. This seems to me a trick to minimize the horrific damage done to innocent young people, by priests who are no less destructive than those who prey on younger children.

    • Claire I Fied says:

      B: for all intents and purposes “adult” in my post refers to anyone OVER the age of 16 if not already in the care of the CAS; OVER the age of 18 if the person was in the care of CAS at age 16 and 17 (FCS Act defines the age of “child” so my presumption is that anyone older is an “adult” ).

      What I personally consider an appropriate age to define “adult” is irrelevant to the OFCS Act/thread or for that matter even other legislation that appears to have varying definitions of “adult” ie: 16 years old for driving; 18 years old for owning property; 19 years old for drinking alcohol …. and I don’t even want to know what ever became of one of the levels of government attempting to lower the “age of consent”.

      • B says:

        I guess I just don’t see the point of all the little distinctions between ages/people in care, etc.; I think it would be more straightforward if the guidelines asked the same thing of everyone: that sexual molestation of minors by clergy be reported to the police, no matter the age of the child or whether it was current or historical. Such a simplification would leave no one in doubt what to do, and would close evasive loopholes.

        • Claire I Fied says:

          understood B. I look at the OFCS Act as basically being “CAS employee hand-book/guidelines” for CAS – what they are allowed to do to protect a child (with their age definition of a child) It seems that for a child, CAS is the ‘first-line’ “police” – and hopefully they involve the police when/where necessary – but Cornwall proved differently (?). Lacking (or not found yet) is any rules/regulation/guidelines for those “children” outside the max. age defined in the OFCS.

  5. Sylvia says:

    Thanks for the direction to the second definition of age in OCFSA Clare I Fied 🙂 I wonder why the decision to exclude children age 16 to 18 form the duty to report?

    Re “duty to report,” a duty to report is a duty to report, the question is is it to police or another agency such as police? In Ontario, and probably all of Canada, the duty to report is to CAS or a similar agency. In some states and many countries there is a duty to report to police. So, when I talk “duty to report” I am talking the duty in general, but certainly with the understanding that in Ontario it is to CAS and not to police.

    I agree that the purpose of the Act is to promote the best interests, protection and well-being of children. So did Perry Dunlop, and by extension so did the Ontario Divisional Court and on and on and on. I believe we probably all agree too that all children with whom a known or suspect child molester interacts are children who are at risk, and therefore in need of protection, and therein, in part, lies the nub of the issue. For example, according to the Pembroke Dicoese Protocol, if an adult complainant tells a diocesan official that he, the complainant, was molested when he was 13 by, say for example, “Father X,” and if Father X is, for example, currently serving at a parish and interacting freely with altar servers, visiting schools, dining in homes with children present and/or assisting with the youth group, are children not at or possibly at risk? And by “children” we can say whatever age OFCSA defines children for purposes of the duty to report.

    I truly do not understand how people can’t see that.

    Re OFCSA revision.

    Just to situate things, those amendments were legislated in December 2008 in the midst of the Cornwall Public Inquiry. Perry Dunlop was incarcerated February 2008 and released from the Ottawa Carleton Detention Centre October 2009.

    That said, the link you provided doesn’t work. I fiddled around and realized you omitted the “-” in “e-law.” So, for those who have tried to open the link posted in Clare I Fied’s comments above, here it is: http://www.e-laws.gov.on.ca/html/source/statutes/english/2008/elaws_src_s08021_e.htm

    It is true Clare I Fied that amendments to the Act were passed in the legislature, but many of those amendments have not yet been enacted. The link which I posted to the Act is current and has all the amendments which are pending grayed out with intro “Note: On a day to be named by proclamation of the Lieutenant Governor, Section 72 is amended by the Statutes of Ontario 2008…” That means that, for whatever reason, they are not yet in force.

    Most of those pending amendments tie into the inclusion of pornography in the Duty to Report. Also, once enacted it will be an offense to disclose the identity of and/or harass an informant. The latter I do believe is fallout from the Cornwall fiasco.

    There are other small changes, but nothing which changes the essence of the duty to report (to CAS) as it has existed in Ontario for a number of years, and certainly nothing which brings any clarity to the duty to report as it relates to “historical” abuse. I will add that by 2008 it was well know that there were those who claimed there was no duty to report when allegations were branded “historical.”

    Re Pembroke Diocese Protocol

    I can assure you that when David Silmser’s allegations against Father Charles MacDonald were turned over to CAS no one from CAS went barging into his home. The primary concern at that time was the children with whom Father Charlie interacted.

    When a man has been identified as a molester I believe that the first thoughts on people’s minds should be: “Are children currently at risk?”; ” Is a child being groomed by this man right now?” ; “Is a child currently suffering abuse at the hands of this man?”; “Are there being abused who need to be rescued?”

    When an adult reports child sexual abuse there is – or should be? – from that moment forward a suspicion that all children with whom that adult’s molester currently interacts are at risk.

    As stated in the OCFSA: ” The paramount purpose of this Act is to promote the best interests, protection and well being of children.”

    Why should the best interests of children cease because a child molester wasn’t reported and hence identified as such until his victim is 18?

    If, as you and others and the Pembroke Diocese believe, there is or should be no duty for anyone to report historical child abuse allegations to CAS , then I ask you: in those cases where the complainant’s molester is still alive, who or what agency protects the children who are risk?

    The fact that we are niggling over this says that there is indeed problem with the legislation and – for the sake of the children! – it needs fixing.

    I still believe that criminal acts or suspected criminal acts committed against children should be automatically reported to police. I also believe the Pembroke diocese is quite capable of demanding that ALL allegations of child sex abuse are reported to CAS, and yes, that includes those that are reported by adults.

    And I still come back to that basic question: Why is a molester deemed less a threat to the safety and well-being of children when the victim who reports him happens to be 18-years-old or older?

    • Claire I Fied says:

      (thanks for fixing the link – I must have done a deletion inadvertently while editing to render it useless) I did not say I believe(d) there should be no duty for anyone to report historical child abuse allegations to CAS; I pointed out that as the Act reads today, there is no provision for someone to do so; and I indicated that there needs clarification/legislation(?) to set out WHO these types of reports should be reported to. And I appreciate the question why a molester deemed less of a threat when the victim happens to 18 years or older – and/but the “answer” does not lie within the OFCS Act. I also appreciate your comment regarding an adult complainant re: Fr. “X”, but it appears until there are changes/mandatory rules or law made for adult complainants, it is only if the complainant goes to the police and the police lay a charge does the diocese “relieve” the priest of his current ministerial duties until the court case is resolved.

      • Claire I Fied says:

        Re: your query why the decision to exclude children age 16 to 18 form the duty to report. It doesn’t exclude them, but it it indicates who “qualifies” at 16 and 17: age 16 if the person is NOT already in the care of the CAS. If the person has been in the care before age 16 sees their 16th birthday still in CAS care, the Act provides for them until they reach at 18. (I do not know or understand the reasoning for the distinction; and why it simply isn’t just 18 years old (or older) “all in”.

        • Sylvia says:

          Perhaps I misunderstand the niggle over age in the OCFSA? As I read and understand it I see it as exclusion.

          It seems to me there is exclusion of a large number of children age 16 and 17. On the one hand the OCFSA defines a child as someone age 18 or under, but then lowers the age to 16 in a section which includes the duty to report, – but in lowering the age to 16 it makes an exception for those children who were in CAS care before and at their 16th birthday. In other words, aside covering all children to the age of 16, the duty to report in the Act selectively covers those 16- and 17-year-olds who were in CAS care on their 16th birthdays, but excludes those who were not. Like you, I fail to understand why the distinction, but I do see it as an exclusion.

          • Claire I Fied says:

            agreed. exclusion of anyone older than 16 unless CAS care. which raises (yet) another question: if a 17 yr old is in CAS care (ie: foster) and someone on behalf of, or the 17 yr old him/herself reports to the CAS a (current) abuse by the “foster”, how does the CAS deal with that? I presume they are the ones who “screened” the foster and fosters’ networks thoroughly?

          • Sylvia says:

            Heart-breaking and chilling horror stories during the Cornwall Public Inquiry about CAS’ handling of sex abuse of children in care, Claire I Fied. I don’t recall off-hand the specific ages, but abominable what some of those children endured and, the same old story, no one listened.

        • Claire I Fied says:

          foxes guarding the chickens comes to mind

    • Claire I Fied says:

      “my bad” I thought “Assented to December 10, 2008 and the explanatory note http://www.e-laws.gov.on.ca/html/source/explanatorynotes/english/2008/elaws_src_ex_exs08021_e.htm at the bottom of the link indicates Bill 37 has been enacted as Chapter 21 of the Statutes of Ontaro 2008″ meant it was in force and effect.

      • Sylvia says:

        This is strange. I’ve been tracking the bill to try to sort it out Claire I Fied. I have no idea what is happening.

        Bill 37 was the Child Pornography Reporting Act, 2008. Here is a link to follow the status of the Bill: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1947&isCurrent=false&detailPage=bills_detail_acts_affected

        The Bill was “an Act to amend the Child and Family Services Act to protect Ontario’s children.” According to the Status link it received Royal Assent 10 December 2008.

        BUT, the required amendments to the OCFSA are, witness the greyed out areas in Section 72, still awaiting proclamation by the Lieutenant Governor? http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c11_e.htm

        If the bill received royal assent in 2008 why are the amendments to OCFSA still “awaiting proclamation by…”? What am I missing here? Can royal assent for the bill itself be attained but the amendments to the OCFSA itself still flounder?

        • Claire I Fied says:

          might just be that electronic version hasn’t been updated yet to actually do the amendments? dunno. The actual Ontario legislature website appears to say it has been passed as well.

          • Sylvia says:

            It was passed, but don’t think it has been enacted CIF. I put in a few calls today trying to find out what exactly the status is, and, if as it seems to me, it is not yet law, what is the hold-up? I have been promised a return call from the office of the Minister of Children and Youth Services, and another by email from the office of PC critic. I’m sure there will be no word until mid week next week. I must say my curiosity is piqued and I want to clarify the situation..

  6. JG says:

    Legality or morality?….Justify or dignify?….I always get annoyed when the legal jargon and the volumes of legal mist get thrown into the mix…Our feeble legal rules derived from the moral guidance of ageless precepts rooted in the “lessons” of the Bible” try to explain our failures and can never make any sense in this little mind of mine…
    Right is right and wrong is wrong.
    Don’t try to rationalize it or to appear to “know” what is right or how it is. Whether a person is sixteen or eighteen or thirty five or ninety five is irrelevant, regardless of what our feeble ùhuman minds have proclaimed to be the “LAW”…

    • Claire I Fied says:

      JG I’m commenting in case it was directed to me specifically [if it was an “in general” comment then you need not read any further]:
      I did not take Sylvia’s requests “I don’t see anywhere in the OCFSA itself that the duty to report applies to a child who is under 16. If I have missed it could someone point it out?…so if I have overlooked it I really would appreciate if someone could point it out to me.” as rhetorical so I responded with my interpretation when I read the OCFSA’s definitions. I did not condone, defend or “rationalize” [the OCFSA truly does exist and I had no input in writing it] Sylvia’s query was on the ‘legal jargon’ of the OCFSA and although I agree age is irrelevant in your context, age is relevant in the OCFSA – one of the topics of this thread.

      I agree right is right and wrong is wrong. Unfortunately not everyone has a moral compass to point them in the right is right direction, so whether feeble or not, laws exist to assist those without one ie: if your morals don’t tell you it’s wrong to steal an item instead of paying for it, the law does; if your morals don’t tell you it’s wrong to kill a person, the law does. I have not yet seen anyone commenting/information from Sylvia directing anyone to “whatever” is out there/available on the “how/by whom and to whom” to report for 18, 35 or 95 year old(s) to do the ‘right is right’.

      • JG says:

        Not directed at you …The law provides punishment when we have failed, morality provides a lifetime of rewards…
        The moral compass should start in the families and our “clerics” , priests, bishops were supposed to be transmitting a “Message”.
        Families are broken and our Church has failed! …That is why we are spending so much time trying to sort out the Law…usually inadequate or irrelevant, meant quite often to cover-up some civil servants “derrière”, to help Law enforcement justify their jobs while reaching their quotas and assist the “legals” in topping their bank accounts!…and for politicians to get re-elected. It is very cold and calculating in my experience.

        My heroes this morning are a couple of motorcyclists in Vancouver who are going around doing random acts of kindness as viewed on the news ; a helping hand to a woman in a wheel chair,…helping a blind man to the sidewalk…
        They say their goal is to “inspire”…They did not worry about the possible ramifications and I am sure if you looked close enough, they have broken “some” Law.
        We can’t expect our Laws to have all the answers and we have to take personal responsibility for “inspiring” others in doing right. There will never be an instantaneous recipe for that! A long term personal investment and commitment to inspire sound morals and not so much litigation…otherwise we loose site of the moral forest behind the overwhelming legal trees…
        Not directed at you…in support of the victims of clergy and for those in the clergy who can still inspire and be inspired…
        If a motorcyclist can do it, maybe they should come out of hiding in “that” legal tree…..
        …as for reporting for 18-35 or 95 year old: start by listening and “inspire” them to report. There is nothing else and there won’t be.
        jg

      • B says:

        Yes, laws exist to keep people honest. However, these laws are constantly changing; there was a time when beating one’s wife and animals was legal, when women could not own property, when black or native people had fewer rights, and so forth–laws evolve as our understanding of what exactly is right/wrong/unjust increases.

        At the same time, laws are supposed to represent the will of the people. So, if unjust/inadequate laws are all that exist in certain areas (such as around pedophilia), there must be ways for people to insist that these laws be revisited, or the law is not serving us.

        I’m not sure what your final sentence is trying to say; is it that there is no law governing how to do proceed in cases of “historical” abuse?

        • B says:

          Sorry–I replied under Claire’s comment, but my response to her was posted here.

        • JG says:

          A victim who doesn’t want to report cannot be forced and if he is not going to “testify” you can have all the Laws you want they won’t amount to anything in such a case…
          There was a bit of personal history also with my Father at 95 being lied to (by bastarache) to allow for 6 months to pass after he died..to prevent legal civil action by my family…Maybe the delay of a few months was just as thought out …Sickening to imagine this possibility!
          The last thing an adult victim of sexual abuse has left of his dignity is his “freedom” to decide for himself. They should not be coerced by any Law to surrender that choice, however good it would make us feel.
          Life and death is the final decision. That’s where “the church” has been putting its money…banking on “death” as their way out!
          That’s why I said “legality or morality?”
          The church needs to lay the cards on the table to really save the little “dignity” they have left.
          Historical abuse is just another sad story when victims and abusers pass on. For the church to even consider this as their solution…(you can use your own expletive here!)….and to drag cases on and on in Court is absolutely “immoral”…So, whatever Law they pursue and use to their advantage is “immoral”…
          “Justify or dignify”…
          That’s all.

          jg

          • Claire I Fied says:

            “lawyer” bastarache ?? if so..wow doesn’t even begin to express it!! soooo sorry for the troubles and anguish that must have caused/still causes JG! …but it raises a point I had not considered: it appears that there isn’t a time limit/statute of limitations for an adult to report a historical abuse against a LIVING (?) person – not like it is for property; auto accident etc. where the aggrieved/injured only has a certain time frame before their “chance” against the person expires.

        • Claire I Fied says:

          yes laws [sometimes too] slowly evolve and I’d like to hope that most represent the will of the people rather than of the people in “power”. Isn’t one way to have a law revisited: is to canvas local MPP to introduce a Bill with changes /or new law to be passed? Re: final sentence: I don’t know if any legislative Law or police procedure/protocol that defines (instructs) a person as to the ‘How/Whom and To Whom’ exists, so as JG says, for the time being inspire the adult who suffered a historical abuse to report (presumably to the police).

  7. JG says:

    (continued)…fingers too quick! I wasn’t done…
    ….especially for our clerics, our moral leaders, regardless of their affiliation. Either you “Believe” or you don’t! There are “great pretenders” with collars or pounding fists on worn out unread Bibles… or Mullahs or Gurus or Rabbis with worldly ambitions…
    Whatever your circumstances, do what is right by your neighbor and “believe” the “Supreme Power”, whatever your little mind imagines “it” to be, will lead to the true answer.
    For bishops and priests and anyone with a “religious” calling to not be a servant of the rest of Creation and to hide behind the “Legal Book” as opposed to the “Holy Book” is like a man who chooses to eat in the garbage bin and despises the ones who were served at a table covered with the white linen cloth…
    Bishops and priests, whether in Pembroke or Phnom Penh, or Paris, should know in their gut and heart what abuse, hurt, treason is….
    Do you report, do you consider your “authority”, do you consider the right to “privacy”…??!!
    When you come up to an accident, with injuries, do you hesitate and wonder about the “problems”, the “legalities” before you save someone or do you try to help within the bounds of your capabilities????…
    Same should apply when another human being is hurting from the effects of abuse… Render assistance within the limits of your capabilities…well intentioned and caring. No “legal book” will ever be able to fault your intervention.
    Debate all you want within the “Laws”but you will only find the answer in your heart, in your capacity to care for another human being.
    Our only duty ,the only LAW is to “love one another”…
    ….paragraph 3, section 3, subsection 3….
    If we continue to carry heavy, needless baggage, we won’t travel far…
    “Protocol” makes me think of chloroform….
    The established order needs a few rebels to bring about any changes! We were all inspired by such rebels! I wonder how they would rate our “legalized” comforts!! How disappointed they would be of our “clerics”…in their “comforts”…
    They should be the last ones looking for a way out….if they are true to themselves and to their calling; otherwise they are just users and takers, and no LAW, human or Divine, will ever be able too “justify” that.
    Show some “dignity”, Monsignor!…

    jg

    • Sylvia says:

      Indeed JG. At least as much time listening to God as they do to lawyers – that would be a good start.

      And then a little reading and some serious meditation – about millstones and children and drowning in the depths of the sea.

      Some day…..

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