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Chief Roseanne Casimir, Palexelsia Lorelei Williams and Cecilia Point gesture in St. Peter's Square, after an audience with Pope Francis, at the Vatican, April 1, 2022.Fabrizio Troccoli/The Globe and Mail

The Pope’s apology for harms done by some Catholics in residential schools to Indigenous children and families cannot be used in court against Catholic entities or individuals connected to abusive acts, legal observers say.

There are two main reasons. One is that the Pope is deemed to be a head of state, and as such has immunity when he speaks, and the Vatican itself has immunity. And two, apology laws have spread throughout Canada over the past two decades that keep apologies from being used in lawsuits to establish fault or liability.

The residential schools, overseen by the Canadian government and administered by church groups, ran from the 1880s to the 1990s, and were mandatory for much of that time; roughly 150,000 children went through the schools. Many were subject to physical and sexual abuse, a royal commission found. In the past year, large numbers of unmarked graves have been found on the sites of the former schools.

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“Don’t be deceived – this is a cost-free public relations step, really, from the church’s view,” lawyer Rob Talach of London, Ont., who specializes in representing sexual-abuse victims, said in an interview. “If we want to see more accountability, let’s refocus on the access to their archives, and the ongoing funding that some people need to heal further.”

Last year, the European Court of Human Rights ruled that the Vatican has sovereign immunity that protects it from being sued for sexual abuse.

Because any apology from the Pope has legal protections, it means he can and should go much further in an apology than he did this week, says Mary Ellen Turpel-Lafond, a professor at the University of British Columbia’s Allard School of Law, and director of the Residential School History and Dialogue Centre.

The Pope told former students and Indigenous leaders visiting from Canada that he feels “sorrow and shame for the role that a number of Catholics, particularly those with educational responsibilities, have had in all these things that wounded you, in the abuses you suffered, and in the lack of respect shown for your identity, your culture and even your spiritual values.”

He added: “For the deplorable conduct of these members of the Catholic Church, I ask for God’s forgiveness and I want to say to you with all my heart: I am very sorry.”

But Ms. Turpel-Lafond said the Pope went much further in Ireland three years ago, when he said he was sorry for “crimes” committed against thousands of women and children in Catholic churches, orphanages, schools and other institutions.

“One hopes that given the degree of legal protection he has, as Pope, as head of state, that when he does come to Canada as planned, to deliver on Canadian soil directly to Indigenous people another statement, that it’s a more fulsome apology.” He is expected to visit later this year.

Apology laws have spread across the country since 1999, when the Law Commission of Canada proposed a break from legal constraints around apologies.

“In light of the importance of apologies to survivors of institutional abuse, it is unfortunate and disturbing that traditional justice processes foster intransigence, disrespect and lack of remorse on the part of wrongdoers,” researcher Susan Alter wrote for the commission.

In 2006, B.C.’s acting ombudsman, Howard Kushner, released a report, The Power of An Apology, which said that public authorities had been reluctant to say sorry “out of concern that the apology could trigger legal liability.” (It cited a B.C. Attorney-General who issued an expression of regret in 2004 to the Sons of Freedom Doukhobor community over the confinement of children in an institution in the 1950s. (Many of the former children said a proper apology would have helped them heal.)

B.C. legislators passed the Apology Act later in 2006 and Ontario in 2009. The laws say that, whether the apologies are general statements of regret or admit wrongdoing, they cannot be taken into account in civil trials to establish fault or liability.

Apologies can avert litigation, Mr. Talach said, and governments passed the apology laws to try to reduce the burden on the court system, and reduce costs for insurers, prospective defendants and plaintiffs.

“Believe it or not,” he said, lawsuits are often not about the money.

“Many times it’s about accountability, it’s about getting information. This is never more true than in sexual-abuse cases.” He added: “People want systemic change, which is fed by information. If everyone clams up and won’t even say I’m sorry let alone explain what happened, the only recourse is to go and sue.”

Fifteen years ago, a settlement between the Canadian government, church groups and residential-school survivors addressed the Catholic Church’s liability, but questions have been raised about whether the church has met its obligations under that settlement.

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