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No liability risk if pope apologizes in Canada: lawyer

By Deborah Gyapong
Canadian Catholic News

11/01/2017

OTTAWA (CCN) — There may be good reasons for not inviting Pope Francis to Canada, but the risk of being sued isn’t one of them, according to a litigation lawyer.

The question of liability came up after Bishop Lionel Gendron, the new president of the Canadian Conference of Catholic Bishops, told Vatican Radio on Oct. 9 that the bishops had concerns the pope could be sued if he apologized in Canada for the church’s role in residential schools, as requested by the Truth and Reconciliation Commission.

Later, in a subsequent interview with CCN, Gendron said the CCCB had asked its various regional episcopal assemblies to obtain a legal opinion on what risks of liability there would be should the pope apologize.

“The church has already given a lot of money and we have also expressed many times many apologies” from different dioceses and religious congregations, “with the consequence we had to pay,” Gendron said. “Now, well, if the pope would come and do that, we needed time to ask for a legal evaluation of the dangers.”

Rob Talach, a London, Ont., lawyer who has sued the church on behalf of clerical sexual abuse victims, says “it’s baloney” to suggest the pope can’t come to Canada because of the risk of a lawsuit.

“If he can be sued, we can sue him sitting in his chair in the Vatican,” Talach said.

Instead, apologizing would have an upside, even a mitigating effect on future lawsuits, he said.

“It shows some contrition to say, ‘Look we’re trying to heal the wound saying we’re sorry,’ ” he said.

Gendron said the CCCB was told in some provinces an apology could bring legal action, and in others it could not, but he said he really did not know if the liability would apply to the pope or reopen litigation against the Catholic entities who ran residential schools.

“Most of the provinces have a law that says when there are apologies, you cannot sue the person who apologizes,” Gendron said. “It’s not in all provinces.”

Most provinces, including Ontario and Manitoba, have “apology laws” that do not allow an apology to be used as evidence showing fault or legal liability.

However, suing the pope is not the same as suing a diocese, which has a legal corporate identity.

The pope as head of a sovereign country is protected from legal liability by Canada’s 1985 State Immunity Act. This act only allows exceptions if terrorism is involved, or if the leader waives immunity.

For the pope to be successfully sued, Parliament would have to amend the act to either create an exception from immunity for the Holy See, or amend it in the case of residential schools, Talach said.

“The church is not winning the public relations battle on this,” Talach said, noting the Catholic entities that were part of the Indian Residential Schools Settlement Agreement only raised $4 million out of the $25 million it was supposed to raise as part of the settlement.

Yet there are examples where a diocese mounts infrastructure projects to fix buildings or upgrade a parking lot and they have no trouble raising millions of dollars, he said.

“If you lose the PR battle badly enough, you’re going to lose things like your sovereign immunity and your separate school system,” he warned. “The public is not going to have tolerance” for this.

“Life’s a popularity contest and the cool kids win,” Talach said.

“There’s very little tolerance for the church on these issues: the residential schools and sexual abuse,” he said.

One of the TRC’s Calls to Action is that the pope apologize for the residential schools on Canadian soil. Prime Minister Justin Trudeau has extended an invitation to Pope Francis, but the bishops have been divided. Without an invitation from the Canadian bishops as a whole, the pope will not come.

Though sources say the bishops are closer than ever to finding that unanimity in inviting the pope, one of the snags has been the immense cost of a papal visit. The CCCB was left with a $36 million bill after St. Pope John Paul II’s visit to Canada for World Youth Day in 2002. The CCCB has no money, so this debt was assessed to the dioceses, some of which have hovered on the brink of bankruptcy.

While under the State Immunity Act Pope Francis cannot be sued, an apology could reopen litigation against those Catholic entities — dioceses and religious congregations — that ran residential schools.

Litigation is always a risk, Talach said, but an apology from the pope would have benefits that would far outweigh the risks, he said.

Talach and other litigation lawyers involved in lawsuits against the Catholic Church have been frustrated by the fact there is no one legal entity in Canada that represents the church as a whole. That is not true of the United Church or the Anglican Church of Canada.

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