B.C. children’s rep threatens ex-staff for speaking about boy’s death

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A former employee of B.C.’s representative for children and youth is being threatened with legal action for speaking out about the 2018 death of a six-year-old Indigenous boy in Port Alberni, her lawyer says.

Jason Gratl says his client, Jody Bauche, is legally protected to speak about matters of Dontay Patrick Lucas’ death, as any oath of confidentiality she took as part of her public service job is “overridden by the public importance and life and death importance for children in custody.”

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Bauche was an investigative analyst for Jennifer Charlesworth, B.C.’s representative for children and youth. Bauche conducted a review into the death of Lucas, who died from blunt force trauma to the brain after he was transferred out of foster care back into the home of his mother Rykel Frank, 28, and stepfather Mitchell Frank, 29.

The transfer was overseen by Usma Nuu-chah-nulth Family and Child Services, an Indigenous child welfare agency recognized by the Ministry of Children and Family Development.

In May 2022, the Franks were charged with first-degree murder. The pair pleaded guilty to manslaughter in a courtroom last November and will be sentenced in May.

Bauche received a letter sent on behalf of Charlesworth in early February, claiming she had “engaged in the unauthorized disclosure of confidential information obtained in the course of (her) employment, in direct violation of your oath of confidentiality, your contractual obligations.”

Bauche told the Victoria Times Colonist about the case for a story in December 2023. In that story, she urged Charlesworth to conduct a full investigation into Lucas’ death. Charlesworth had previously decided against it, citing reasons including the potential harm and trauma it could cause the child’s family and community and the amount of time that had passed since the death.

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“We had this information and we brought it forward and nothing happened,” Bauche told the Times Colonist at the time. “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 also told the Times Colonist that the daycare Lucas attended before his death reported the boy had bruises on the side of his face, arms and back to the Usma Nuu-chah-nulth Family and Child Services.

The correspondence from Charlesworth’s legal representative, Mark Underhill of the Arvay Finlay law firm, alleges that Bauche violated her job’s oath of confidentiality.

“Please consider this letter as a demand to immediately cease and desist from any further disclosure, use, or dissemination of any confidential information obtained in the course of your employment,” the letter reads.

When asked Friday what information Charlesworth says Bauche leaked, B.C.’s representative for children and youth issued a statement claiming: “A former employee of my office unlawfully disclosed confidential information, including the identity of an entity which provided a critically important report to our office, to a reporter of the Times Colonist.”

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“Young people, their caregivers and service providers come to us because they know we will hold their stories privately. This is the most important foundational piece of why they trust us. The very public breach of confidentiality by this former employee has significantly jeopardized that trust,” the statement reads.

Charlesworth said she is currently undertaking a major systemic review of the child welfare system, including the Ministry of Children and Family Development and Usma Nuu-chah-nulth Child and Family Services, to support learning and improvements to practices — “and Dontay’s life and death will be addressed within this.”

However, Gratl has written a letter in response, claiming that his client Bauche “has not violated her oath of confidentiality or breached any contractual or ethical obligation.”

The lawyer told Postmedia that “even if it was notionally breached,” the oath does not have legal bearings because of B.C.’s Protection of Public Participation Act, which protects people who make criticisms on matters of public interest from lawsuits intended to intimidate or silence them.

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“The demand letter is an illegitimate attempt to limit Ms. Bauche’s right to free expression, restrict public awareness, and restrain public debate about the death of Dontay Lucas,” reads Gratl’s correspondence to Underhill.

“It is beneath an independent officer of the legislature to make threats to litigate without having any intention to litigate. Not only is this legal bullying, it is legal bullying funded by the public purse.”

With files from Canadian Press

sgrochowski@postmedia.com

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