B.C. children's rep threatens ex-staffer with legal action

WARNING: This story contains details of violence and child abuse.

A lawyer alleges British Columbia's children's representative is trying to stop a former employee from speaking out about the 2018 death of a six-year-old Indigenous boy in Port Alberni. 

Dontay-Patrick Lucas died from blunt force trauma to the brain — four months after Usma Nuu-chah-nulth Family & Child Services, a delegated Aboriginal agency of the Ministry of Children and Family Development (MCFD), put the Hesquiaht child into the care of his mother and stepfather.

In May 2022, Port Alberni RCMP announced the arrests of 28-year-old Rykel Frank, Lucas's mother, and 29-year-old Mitchell Frank, along with charges of first-degree murder in relation to the death.

The pair pleaded guilty to a lesser charge of manslaughter in a Port Alberni courtroom last November, and are scheduled to be sentenced in May.

Jody Bauche, a former investigative analyst with B.C.'s Representative for Children and Youth, spoke to the Times Colonist about the case in December. Bauche conducted a review of the death, according to the story, and called on children's representative Jennifer Charlesworth to conduct a full investigation.

"We had this information and we brought it forward and nothing happened," Bauche told the Times Colonist. "I wanted the representative to do far more on this file. Why does the office exist if you're not going to change anything?"

Bauche's lawyer, Jason Gratl, says his client received a letter sent Feb. 6 on behalf of Charlesworth that demanded she stop making statements about Lucas's death and threatened to take legal action against her. Gratl called the letter an empty threat designed to muzzle his client.

"This demand letter to cease and desist any discussions is profoundly anti-democratic," he told CBC News. "It attempts to stifle public debate about the well-being of Indigenous children in care and it's entirely inappropriate."

'A serious breach to the confidentiality agreement'

The letter told Bauche she disclosed confidential information about the review into Lucas's death that ended up in the Times Colonist article. 

"Such unauthorized disclosure constitutes a serious breach of the confidentiality agreement you entered into with [the] representative as a term of your employment," said the letter sent on behalf of the children's representative, who is an independent officer of the legislature. 

It said Bauche signed a document in August 2018 agreeing to abide by the representative's ethics policy, which "specifically prohibits the disclosure of information obtained through your work in the representative's office, and continues to apply even after the end of your employment."

The letter calls on Bauche to cease and desist from disclosing confidential information she obtained while working with the representative, or risk "additional steps" including legal action. 

Gratl wrote a letter in response, saying Bauche "has not violated her oath of confidentiality or breached any contractual or ethical obligation."

"Any suggestion that she has done so is false and offensive," he wrote, calling the letter an effort to limit his client's right to free expression. 

Gratl's letter also said any legal action is unlikely to succeed since it violates the province's Protection of Public Participation Act, which aims to protect critics on matters of public interest from lawsuits intended to silence or punish them.

"The protection extended by the Protection of Public Participation Act exists even if, as you allege, Ms. Bauche is a whistleblower who has violated her employment duties to bring public," Gratl wrote. 

'Unfounded' 

On Friday, Charlesworth called Bauche's accusations "unfounded," and denied the legal proceedings are an attempt to silence her.

"I am extremely disappointed to see that my office's response to this grave breach of confidentiality has now been framed by various parties as an attack on free speech and an attempt by my office to quell public discourse on the tragic death of a child," the representative said in a statement.

Charlesworth said her office is "legally prohibited" from investigating cases "while criminal proceedings" are underway — stating it in fact conducted a "comprehensive review" of Lucas's death, providing it to MCFD and the delegated agency. As well, she said the case is part of her ongoing "major systemic review of the child welfare system."

In January, B.C. Premier David Eby stopped short of committing to a public inquiry into Lucas's death, but said the government "will bring all the tools to the table."

"For Dontay's case, we will ensure that British Columbians get the answers they need, and in particular, that we get the information we need to prevent any similar deaths from taking place," Eby said.