Bishop Lionel Gendron, president of the CCCB, said some bishops are concerned the Pope could be sued if he were to apologize in Canada for the Church’s role in residential schools. CNS photo/Francois Gloutnay

Bishops ponder liability if Pope apologizes in Canada

  • October 26, 2017
There may be good reasons for not inviting the Pope to Canada, but the risk of being sued isn’t one of them, said a litigation lawyer who has taken the Church to court.

Litigation is always a risk, said Rob Talach, a London, Ont., lawyer who has sued on behalf of clerical sexual abuse victims. But “it’s baloney” to suggest the Pope can’t come to Canada because of the risk of a lawsuit, he said.

As head of a sovereign country, the Pope is protected from legal liability by Canada’s 1985 State Immunity Act. The only exceptions allowed under the act pertain to acts of terrorism or in cases where a leader waives immunity.

So for the Pope to be 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.

But that doesn’t necessarily mean a papal visit couldn’t trigger lawsuits against Catholic entities in Canada, said Bishop Lionel Gendron, the new president of the Canadian Conference of Catholic Bishops (CCCB).

The question of liability arose after Gendron told Vatican Radio that some bishops expressed concern that the Pope could be sued if he apologized in Canada for the Church’s role in residential schools. An apology on Canadian soil was one of the calls to action of the Truth and Reconciliation Commission.

In a subsequent interview with Canadian Catholic News, Gendron said the CCCB asked its regional episcopal assemblies to obtain a legal opinion on the risks of liability.

“The Church has already given a lot of money and we have also expressed many times many apologies,” Gendron said.

The apologies came 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.”

Although Talach contends an apology might actually have a mitigating effect on any lawsuits, Gendron said the CCCB was told in some provinces an apology could bring legal action. He said he didn’t know if liability could apply to the Pope or if it might spark a reopening of litigation against the Catholic entities which, on behalf of the Canadian government, ran many of the residential schools.

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

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

Talach contends the benefits from an apology by the Pope on Canadian soil would far outweigh any risks.

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

Prime Minister Justin Trudeau extended an invitation to Pope Francis in May, but without an invitation from the Canadian bishops as a whole, the Pope will not come.

Sources indicate the bishops are closer than ever to reaching unanimity to extend that invitation, but a significant hurdle is the immense cost of a papal visit. The CCCB was left with a $36-million tab after St. Pope John Paul II visited Canada for World Youth Day in 2002.

The CCCB has no money, so the debt was assessed to the dioceses, some of which have hovered on the brink of bankruptcy.

Talach and other 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 of the Anglican Church of Canada.

“The goal is to take it home to headquarters, not the appendages, the limbs, but go right for the brain,” Talach said.

“The Church is not winning the public relations battle on this,” 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.”

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