Is the Pope Telling Priests to Break Canadian Law about Reporting Sexual Abuse?

Canon 6 of the Council of Trent states that – ‘If any one saith, that it is not in man’s power to make his ways evil, but that the works that are evil God worketh as well as those that are good, not permissively only, but properly, and of Himself, in such wise that the treason of Judas is no less His own proper work than the vocation of Paul; let him be anathema.’

What Does Canon Law Have to Do with Canadian Law?

Around the world, the Catholic Church has been embroiled in a sexual abuse crisis that has seen legislators, politicians and sexual abuse advocates challenging the legitimacy of the Catholic Church’s claim that statements made in confession are confidential.  This so-called seal of confessional secrecy, according to the Church, is the absolute duty of priests not to disclose anything that is said to them during confessions.

In a recent 2019 publication, Pope Francis maintained that any political or legislative pressure to override the sacramental seal would be “an unacceptable offense” against the Church’s freedom which comes from God and not human institutions, and would be “a violation of religious freedom”.  The Pope claims that no court has jurisdiction to break the confidentiality of the seal of confession.

“The sacramental seal is indispensable and no human power has jurisdiction, nor can it claim it, on it “

Earlier this year the Pope wrote that confession:

“…is one of the many gifts that Christ’s preferential love holds for us – as confessors we have the privilege of continually contemplating the “miracles” of conversions, changing a far-fled sinner into a repentant son who returns to his father’s house.”

Vatican’s Position Conflicts with Canadian Law

Every province and territory in Canada have laws that require persons who are aware of suspected child abuse to report their concerns to the appropriate authorities. For example, in Nova Scotia, the Children and Family Services Act (CFSA) states that every person in the province of Nova Scotia has a legal obligation to report concerns of abuse or neglect of a child under the age of 19 in order to ensure that all children are protected from harm. The failure to report is considered a criminal offence.

There are two Canadian provinces (Newfoundland under its Evidence Act and Quebec under its Charter of Human Rights and Freedoms), that respect and recognize the privilege of religious communication. However, this confidentiality directly conflicts with the obligation we all have to protect children by reporting child abuse.  

The Popes instructions to Canadian priests to safe guard the seal of confession is, in effect, an order to ignore the reporting requirements of Canadian law designed to protect children from abuse.

Making a claim to the confessional seal of secrecy may create a potential obstruction of justice in cases where survivors of sexual abuse come forward after years of silently dealing with psychological and physiological consequences of past abuses.

Owing to Canada’s multiculturalism, the Supreme Court of Canada has previously found that religious communication should not be accorded absolute protection and privilege. These types of privileges are assessed on a case-by-case basis.  

The “Wigmore Criteria”

Canadian Courts use the “Wigmore Criteria” to determine whether a statement, including religious communications, may be privileged. The “Wigmore Criteria” are informed by the Canadian Charter of Rights and Freedoms whose guiding principle is to be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. In the “Wigmore Criteria” the factors considered are that:

1. The communications must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

In the pivotal 1991 case of R v Gruenke, Adele, a 22-year old reflexologist received a loan from Barnett, an 82-year old man whom she had lived with in a platonic relationship. Barnett had even put her as a beneficiary in his will until he began to make advances to her. At which point, she decided to move into her mother’s home. As the advances became more aggressive, Adele and her boyfriend made plans to kill Barnett, until one night she and her boyfriend beat Barnett to death.

Adele decided to speak to a pastor and counselor about her involvement in the murder. At the trial, the pastor and the counselor’s disclosures of the conversation were admitted by the Court and used to convict Adele of first-degree murder because the conversations did not satisfy the requirements of privilege under the Wigmore test.

Is the Seal of Confession More Important than Protecting Children from Sexual Abuse?

I think that the Catholic Churches claim to secrecy for statements made in confession about child sexual abuse fails to meet the fourth criteria of the Wigmore test.

Is the “injury” to the relationship between a priest and the person who has confessed to knowledge of child abuse greater than the benefit gained by potentially protecting children from sexual abuse?  Would any reasonable person ever argue that it is better to allow children to be abused that to break the seal of confession? Apparently that is exactly what the Pope is telling Priests, Catholics and everyone else around the world.

Contact a Trusted Sexual Abuse Lawyer

While there is no longer a limitation period for sexual abuse claims in Nova Scotia, sexual misconduct cases can be very challenging for victims to navigate, particularly where information regarding the incident(s) abuse is hidden or not easily attainable. For this reason, it is critical that you get legal guidance immediately from an experienced sexual abuse claims lawyer.

At McKiggan Hebert, we have received national recognition for our advocacy for sexual abuse survivors.  If you are a recent victim of sexual misconduct or abuse, or a survivor of historical abuse and have decided to come forward and exercise your right to justice, contact us at (902) 423-2050 or fill out our online form for assistance.