Apology legislation promotes reconciliation; Allows defendant to apologize to plaintiff without admitting guilt in the case

Cornwall Standard Freeholder

18 January 2008

Posted By Trevor Pritchard

Introducing apology legislation in Ontario would reduce the burden on the province's legal system and promote reconciliation between victims and wrongdoers, two prominent Canadian lawyers argued yesterday.

Leslie Macleod and Russell Getz addressed about 40 people attending a workshop on the legal and ethical implications of apologies held last night by Phase Two of the Cornwall Public Inquiry.

Currently, only three jurisdictions in Canada - British Columbia, Saskatchewan, and Manitoba - have legislation allowing for the defendant in a civil case to apologize to the plaintiff without potentially having their words taken as an admission of fault.

The absence of such laws in Ontario means people might be afraid to apologize for fear of being found liable, said Macleod, a Toronto law professor who presented her policy paper, A Time for Apology: Legal and Ethical Implications of Apologies.

That's a problem, she said, since expressions of regret play an important role in the healing process. A sincere apology - one where the apologizer takes responsibility and works to improve their behaviour - can diminish a victim's anger and help ease feelings of self-blame, Macleod said.

"(The accused) might say, 'Ah, because it's not protected by legislation, I might hold off on it,'" said Macleod. "And then we're missing out on an opportunity for reconciliation."

The freedom to apologize can also be beneficial for the accused, as they can use an apology to show they've reformed and are willing to change, said Macleod.

People might also be more likely to settle their disputes outside the legal system in a culture where apologies are encouraged, she added.

Macleod expressed concern with what one audience member called "forced apologies" - the type of apology that might be mandated, for example, as part of the findings of a public inquiry.

Such a situation, said Macleod, reminded her of a child being told by their parents to apologize or be punished.

"I don't know if it's a whole lot different when we're adults," she said. "I think it'd be very hard for the victim to feel there was a sincere apology."

Getz, a lawyer working for the B.C. government, helped craft both that province's legislation and a law put forward by Uniform Law Conference of Canada which, if adopted, would harmonize the different types of apology legislation across the country.

While criticisms have been raised over such laws - one being that no monetary penalties could lead to a rush of insincere apologies - the benefits generally outweigh the risks, Getz said.

"People naturally often want to apologize or receive an apology," he said.

"The law should support rather than frustrate this very human . . . need."

Running concurrently with the much-publicized Phase One, the inquiry's second phase has a mandate to explore how to foster community healing in the wake of allegations of historical child and sexual abuse in the Cornwall area.

The inquiry had long contemplated hosting a workshop on apologies under Phase Two's umbrella, said policy director Colleen Parrish.

"It's an issue that gets raised a lot in the context of the inquiry, but it's a broader public issue as well," she said.

While it's clear that sincere apologies can have a great impact upon victims, they also promote healing on a society-wide level, Parrish said.

When the government apologized for interning Japanese Canadians in labour camps during the Second World War, it wasn't just people of Japanese ancestry who felt comforted by the admission of regret, said Parrish.

"We like to live in an ethical society, a moral society," she said. "I think we're all pleased to see that (sort of reconciliation happen)."