Former Supreme Court Justice Michel Bastarache to John MacDonald on ‘duty to report’

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The following are email exchanges between John MacDonald and former Supreme Court Justice Michel Bastarche regarding the “duty to report” as dictated by the the Family Services Act of New Brunswick (scroll down page for relevant sections of the Family Services Act of New Brunswick ) At the time Mr. Bastarache was working on a “conciliation” process for the Diocese of Bathurst, New Brunswick.  As of June 2012 Mr. Bastarache is working on a similar process for the Archdiocese of  Moncton

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November 4th, 2010

M. Bastarache:

My name is John Mac Donald, I am a victim of clerical abuse in Cornwall, Ont. My perpetrator walked away from court on an 11b charter issue in 2002. He was first charged in March 1996. The previous was mentioned just to let you know why I have an interest in your work in the Bathurst Diocese.

My question to you is about a persons Duty to Report as legislated in the Family Services Act of New Brunswick. Under this legislation are you not obligated to report to the local Children’s Aid Society any suspected abuse or abusers? I am sure that as a retired Justice of the Superior Court of Canada, you would want to make certain that the law of the land is followed.

Anticipating your reply,

John Mac Donald

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***Private and confidential*** December 10th, 2010

Mr. MacDonald,

Thank you for your emails. I have had the opportunity to look into the matter and have reviewed the relevant legislation in New-Brunswick and Canadian case law dealing with the duty to report. I apologize if this took some time, but I wanted to make sure that my research was extensive on this matter.

As you know, the duty to report exists for situations where there is a threat or potential threat to minors. Seeing as all of the child offenders that were named through the conciliation process are either in jail or have since passed away, there is no threat to the public and thus, no duty to report.

As a professional, my duty is to report if a “child” is or may be in need of protection, even when the information is supposed to be confidential or privileged. As all of the victims who have come forward are over the age of 18, they could also report this abuse, should they wish to do so. If ever there was a case where an individual would be in danger, no matter if he/she were a minor, I would definitely not hesitate to report this to the police. However, this is not the case.

I would remind you that I have not been hired by the Diocese to “broker a deal” with the alleged victims, as you have stated in your previous email. The Bishop of Bathurst, Msgr. Valery Vienneau, asked me to accept the role of independent conciliator in order to design and direct a process to identify victims of sexual abuse for which the Diocese has accepted responsibility, provide them an official apology, and offer them fair compensation for the affront to their dignity and their suffering.

This process is meant to be non-confrontational, and as simple and expeditious as possible. As the Conciliator, I am acting independently and I am not the agent, lawyer or consultant of the Bishop, which was what the Bishop wanted. Further, most if not all of the victims that have actively participated in the process have requested that we maintain the confidentiality of their complaint, and I intend to respect their wish.

Michel Bastarache

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Section 30 of the Family Services Act of New Brunswick

30 (1) Any person who has information causing him to suspect that a child has been abandoned, deserted, physically or emotionally neglected, physically or sexually ill-treated, including sexual exploitation through child pornography or otherwise abused shall inform the Minister of the situation without delay.

30 (2) This section applies notwithstanding that the person has acquired the information through the discharge of his duties or within a confidential relationship, but nothing in this subsection abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor’s client.

30 (3) A professional person who acquires information in the discharge of the professional person’s responsibilities that reasonably ought to cause the professional person to suspect that a child has been abandoned, deserted, physically or emotionally neglected, physically or sexually illtreated, including sexual exploitation through child pornography or otherwise abused but who does not inform the Minister of the situation without delay commits an offence.

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