Cornwall Public Inquiry

 Phase 2 Research Workshop

 The Legal and Ethical Implications of Apologies

 January 17, 2008

Workshop Summary

Welcome

Phil Murray, a member of the Advisory Panel, welcomed the audience to Phase 2’s first research workshop on the legal and ethical implications of apologies.  

Before starting the program, Phil went over the workshop ground rules. First, that we should treat each other with respect. Second, that the workshop is part of Phase 2 of the Cornwall Public Inquiry. As such, it does not deal with any issues in Phase 1. He explained that the speakers would only be talking about the issues of apologies in a generic manner and not directly on any of the issues in Phase 1. Third, he stated that some of the matters discussed may be difficult for some people and that there were helpers in the room who could assist in the case of difficulties. He asked the helpers to raise their hands so that they could be identified. Finally, he stated that while the presentations were going to be in English, that during the questions and discussion that people should feel free to speak in French or English.  

Introduction & Process

Jan Handy, a member of the Advisory Panel, then introduced the evening’s two speakers, Leslie Macleod and Russell Getz.  

Leslie Macleod is the author of “A Time for Apology: Legal and Ethical Implications of Apologies”, part of a series of workshops on topics relevant to the Phase 2 mandate of the Cornwall Public Inquiry, which focuses on healing and reconciliation. Leslie is a lawyer whose practice area is the provision of alternative dispute resolution services to public and private sector clients. Leslie is also an Adjunct Professor at Osgoode Law School where she co-directs the Master of Law Program in ADR. She has mediated and investigated cases involving allegations of abuse and is particularly interested in the potential for conciliation and healing associated with statements of apology or expressions of regret in civil cases. 

 Russell Getz is a lawyer working for the Government of British Columbia. Russell is the B.C. representative on the Uniform Law Conference of Canada and the 2006 Civil Section Chair. He is the author of uniform apologies legislation in the civil law context brought forward by the conference, an indication of growing interest in this topic by those involved in public policy and legislative development across Canada. He is also the B.C. representative on the federal Department of Justice Advisory Committee on Private International Law and served on the Canadian delegation respecting The Hague Convention on Choice of Courts Agreement.  

Jan then explained the process that would be followed in the workshop. She stated that both Leslie and Russell would present first. There would then be a short break to allow people to look at the display on apologies. There would then be a question and answer session for Leslie and Russell. Finally, time permitting, there would be an interactive session following the question sheet on apologies that was handed out at registration.  

Leslie Macleod

Leslie indicated in both her personal and professional experience when apologies are given and given well that they are effective in healing conflict. She then thanked the Cornwall Public Inquiry for the opportunity to conduct more research on this exciting topic. She cautioned the audience that she does not have all of the answers with respect to apologies, but that her role is to present ideas and options and to allow the wisdom of the audience on the issue to come to the fore. She stated that it is her hope that the ideas discussed tonight may be considered by the Commissioner in his recommendations.  

Leslie then stated that it is not her wish to go over the substance of her paper in great detail, but rather to touch on some of the high points of the paper and then open the floor up to discussion and debate on the ideas presented.   

As a starting point, Leslie asked the audience several questions. Why are apologies worth studying? What is their impact on civil cases? In her view, apologies are worth studying because they have benefits for both victims, wrongdoers and for the justice system and society generally.  

Leslie then turned to the potential benefits of apologies for victims. In her view, the most important benefit is the capacity of the apology to address the psychological needs of the victim. An apology that addresses the psychological injuries of the victim can lead to healing and to reconciliation, with the self, with the wrongdoer and with organizations involved in any wrongdoing. Indeed, she states that apologies may restore victims in a way that money alone cannot.  

According to the literature, the following psychological needs of the victim are served:  

1. The victim is empowered and the wrongdoer is shamed.  

This, in essence, restores a balance between the victim and the wrongdoer. It is an exchange of shame and power.  

2. The victim is relieved of feelings of self-blame and criticism.  

The blame is placed squarely upon the wrongdoer when there is an apology.  

3. An apology may reduce the victim’s anger and may take focus away from the punishment of the wrongdoer.  

There are also legal and strategic interests of the victim that are served by an apology.  

1. There is a sense of vindication for the victim when there is an apology. It has the effect of clearing the reputation of the victim and emphasizes the harm done by the wrongdoer.  

2. If the victim is motivated by punishment, an apology can also have the effect of punishing the wrongdoer as the apology may be used in civil court or in the court of public opinion.  

3. For some victims, the apology may be the only remedy they want. Indeed, some victims only sue their wrongdoer because they were not able to get an apology. If an apology is received, then victims may not sue at all or may claim less damages. Whether or not litigation is pursued the victim may see an apology as conflict resolution in the litigation process, which can help to restore relationships.  

Leslie indicated the starting point in apologies are the needs of the victims. But it is also important to see that there are also needs of the wrongdoer that are served through apologies.

Psychological needs of the wrongdoer.  

1. Apologies help reduce the psychological pain of the wrongdoer.  

2. Apologies allow wrongdoers to express regret, show remorse and take responsibility.  

3. Helps the wrongdoer meet his/her own ethical code or societal expectations.  

4. For those who have empathy for the victim, may want to relieve hurt by offering an apology. They may also want to show that they have changed and will act differently in the future.  

Legal and strategic purposes of the wrongdoer:  

1. Co-operative wrongdoers may be motivated by their own financial purposes by apologizing. This raises concerns about the exploitation of victims, especially if the apology is not authentic or sincere.  

 2. There may also be a desire to reduce punishment or at least reduce damages.  

3. To obtain forgiveness. Many wrongdoers see forgiveness as the quid pro quo of apologizing.  

4. To protect their own image in society at large.  

In addition to the needs of both victims and wrongdoers, apologies can also serve the needs of the justice system and society as a whole.  

1. Apologies may help to reduce the overall amount of conflict in our society. People may not have to resort to the justice system if conflict is resolved early, thus avoiding litigation.

Leslie then stated that the fact that our civil justice system does not support apologies is in opposition to morality. Apologies are something that we expect in our society. We teach our children to apologize when they wrong someone. But for some reason, there is a general resistance to apologize in situations of larger conflict.  

In Leslie’s view, people need to understand the wider benefits of apologies. When people harm others, there is a sense of injustice created, social injustice if not legal injustice. There is, then a “justice gap” between the victim and wrongdoer, a gap between the way things are and the way things should be. The theory is that apologies can act as a filler for this gap. Apologies do not erase the past, but fill the gap of injustice so that people can move forward.

Leslie then turned to the definition of a ‘good apology’. In her research, Leslie stated that 7 components of a good apology continually came up.  

1. Recognition of the wrong. An apology should include saying that what you did was wrong. Not, “I am sorry if what I did was wrong.”  

2. Remorse An apology should be humble and should express shame and regret. It is a pushing down of the wrongdoer.  

3. Responsibility Not only should the wrongdoer say that what they did was wrong, but they should take responsibility for the wrongdoing. There should be no excuse for the wrong.  

4. Repentance The wrongdoer should see their conduct as ethically inappropriate.  

5. Reasons Ideally, the wrongdoer should offer the victims reasons as to why the wrong happened, although this may not be possible in all cases.  

6. Reparation There should be some way of addressing the harm. Some say that the apology itself is a reparation, to restore the victim as best as can be done. Reparation may also include compensation to the victim, or having the wrongdoer undergo some kind of counselling or training.  

7. Reform Reform may take place on several levels, there may be personal reform or systemic reform, to ensure the wrong does not happen again.  

Leslie called these 7 qualities of a good apology the 7 “R’s”.  

She then suggested that an apology that contains most of these elements may be more acceptable to the victim as a good apology, an authentic apology, a real, apology or a sincere apology. Conversely, an apology that lacks one or more of the 7 R’s may be viewed as superficial, insincere, self-serving, manipulative, hollow, partial or as a non-apology.  

When considering making an apology, Leslie stated that if we want to promote the making of good apologies we first need to know what the victim needs, expectations and what the victim wants to hear. After considering the victim, then the needs of the wrongdoer should be considered. To the extent that there is a mismatch of needs, there may need to be a mediation between the two parties. In Leslie’s view, the mismatch of needs and expectations often results from a lack of communication between the victim and the wrongdoer.  

Leslie then moved on to consider the specific questions about the logistics of apologies.

Who makes them? Who receives them? What do they contain? She stated that these things will matter a lot. An apology made indirectly by a representative of the wrongdoer may seem less sincere. In addition, one should consider to whom the apology should be made.  

When do they take place? Leslie stated that there is a great deal of support for the idea that an apology should take place very soon after the wrong was committed. But there is a competing view that often the victim is not ready to receive the apology right after the wrong was committed. Sometimes the victim needs time to think. The timing of the apology needs to take into consideration the dynamics of the parties.  

Leslie then provided the audience with a personal anecdote of an apology she recently received. She stated that living in Toronto she usually travels by public transportation, but that one day she called for a taxi as she was running late. After 25 minutes, no taxi had yet arrived. After calling the dispatcher back, it was confirmed that the taxi was on its way.  When she got into the taxi, she called the person she was meeting to apologize for being late. After she got off the phone, the taxi driver apologized to Leslie for being late. He said, “I am sorry I was late. It was my fault, not the dispatcher’s. Business has been slow and I took another fare before picking you up. And I thought if I apologized to you, that you would forgive me.”  

Leslie then asked the audience whether this apology from the taxi driver was effective? The majority thought it was.  

Leslie stated that she was conflicted about it, but admitted that it had some good elements, for example, recognizing the wrong, taking responsibility and providing reasons. Ultimately, she forgave the taxi driver.  

Leslie stated that one of the parts of the apology from the taxi driver that was intriguing was that he asked for forgiveness. She stated that forgiveness may be for the benefit of both the wrongdoer or the victim. However, in her view, forgiveness should not be expected. It is the right of the victim to offer forgiveness and it is not earned just from apologizing. There are some victims who forgive even if a substandard apology is provided and there are some victims who will not forgive even in the face of an excellent apology.  

Going back to one of her earlier statements, Leslie asked why apologies are usually given when the harm is relatively small, but often withheld when the harm is great? She stated that perhaps people do not know how to give an effective apology and that they are afraid of apologizing wrong. People may also hesitate as it could be seen as a sign of weakness or as a sign of guilt. In addition, the wrongdoer may not be able to give an apology. S/he may be deceased or inform. Organizations may be unwilling to provide apologies as they feel that they lack the ability to provide meaningful apologies. And finally, lawyers often discourage their clients from providing apologies, even when their clients feel like they want to give an apology.  

Often, Leslie stated, concerns about legal liability are paramount in the failure to provide an apology. She noted that there are at least 2 main concerns. 

1. The notion that an apology will lead to a finding of liability on the part of the wrongdoer.  

2. An apology may void insurance coverage.  

In most common law jurisdictions, apologies may be used to establish liability, but judges do to not often equate an apology with automatic liability. There is also protection in common law jurisdictions for “without prejudice” settlement discussions and rules of civil procedure that protect statements of apology. However, spontaneous apologies are not protected. Spontaneous apologies need to put them on equal footing with others.  In reaching this goal, many jurisdictions have enacted apology legislation to protect these kinds of statements. Russell will speak more specifically to this kind of legislation.  

Leslie noted, however, that even with legislation, apologies can be used in other contexts, perhaps in criminal setting, or for the purposes of assessing damages, which could still dissuade people from making them.  

In concluding her presentation, Leslie left the audience with the following conundrum: if an apology is not protected by legislation, the party who gives a spontaneous apology may have it used unwittingly against him/her in litigation. This may lead to people not providing apologies at all. So how then do we promote apologies?  

1. Promote general information sharing and education about apologies. 

The use and role of apologies is not talked about in law school or in other professional schools. Nor are the average citizens educated about apologies. There should be more professional training, as well as community training about the power of apologies.  

2. Conduct more research and provide more assistance to governments.  

3. Enact apologies legislation.  

4. Provide commemoration for apologies. 

 For example, there is a national sorry day in Australia.  

In closing, Leslie stated that the benefits of healing and reconciliation through apology is real, and she suggested that it is a time for meaningful effective apologies to be given.  The cartoonist Lynne Johnston stated that an apology is the superglue of life, it can repair just about anything. It is Leslie’s hope that some of the research done here will move us in the direction of supporting apologies. 

 Russell Getz

Russell began his presentation by thanking the Cornwall Public Inquiry for inviting him.

Russell stated that there has been some recent work done both in the provinces and by the Uniform Law Conference of Canada on apologies legislation. Russell intended to present some of the public policy reasons for enacting apologies legislation.  

In Canada there is apologies legislation in BC, Saskatchewan and Manitoba. The Uniform Law Conference of Canada has also drafted legislation for consideration of the whole country. These acts provide that an apology is not an admission of liability and is not admissible in civil proceedings. The origin of this kind of legislation is from law reform and civil justice efforts to help resolve disputes outside of the civil litigation system.  

Russell noted that research done has indicated the benefits of apologies in helping people to resolve disputes without resorting to litigation. As Leslie noted, certain protections for apologies are already in place, such as the protection provided by the common law if made in without prejudice settlement discussions. In addition, apologies may be protected in the mediation process. However, in the absence of these protections the perception is that there will be detrimental legal consequences to wrongdoers. Russell suggested that there may be reason to think that the consequences of providing an apology may not be as serious as we think they may be, as there is research to suggest that an apology is not tantamount to an admission of liability. However, he stated that it is understandable that legal counsel would advise their clients not to apologize if there is uncertainty.  

What ought the place of apologies to be in our society? In the context of civil law, the focus of apologies is on their effects on civil liability. Limiting the effects of apologies in civil actions would have to be effected through legislation to make them inadmissible.  In Russell’s view, there are legal, social and moral policy reasons for making apologies inadmissible in civil litigation. It encourages the resolution of disputes, promotes open and direct dialogue between the parties and encourages responsibility. Apologizing encourages people to take responsibility for their actions, encourages reconciliation and lessens overall litigation.  

People often naturally want to apologize or receive apologies, and the law should support this. There is also a growing recognition of apologies in individual well-being. There are also benefits for tort law. Money is often not adequate compensation for injury, especially in the case of non-pecuniary damages. In fact, in many cases, such as in medical malpractice cases, an apology is often as equally, or even more important than monetary damages.  

Russell noted that some critics say that if we shift to a regime where apologies are excluded from evidence may preclude some plaintiffs from being able to establish their cases. However, he stated that the role of an apology in the context of litigation should not be overstated. Most claims today are proven without them.  

Critics also say that apologies legislation could also encourage insincere apologies and may make plaintiffs receive lower settlements, which will make victims more vulnerable. Russell noted, however, that a victim who detects insincerity is more likely to sue. He also emphasized the need for proper legal advice.  

In addition, critics also argue that apologies legislation allows wrongdoers to evade the consequences of their actions. They argue that apologies will lose moral force if they can no longer be used for litigation purposes. They stated that people who are genuinely apologetic should be able and prepared to accept the consequences of their actions.  

Russell states that on the contrary, apologies legislation should encourage apologies to be given. He stated that an apology is a form of compensation itself, and that worth and value should not be ignored. He argued that the absence of apology legislation may in fact work to the disadvantage of victims, especially those who may also be disadvantaged by gender, socio-economic status etc.  

Russell stated that the current BC apologies legislation protects acknowledgments of fault, while the legislation in the US and Australia may only protect expressions of sympathy.  

Russell argued against this latter type of legislation, as it does not really depart from the status quo. Further, it may mislead people to think that expressions of fault will be excluded, when they are not. In addition, Russell argued that there are no pressing policy reasons for limiting the scope of the legislation to expressions of sympathy only, and that it would likely just have the effect of having less apologies given in general, due to caution of crossing the line between an expression of sympathy and an expression of fault.   

In cases of intentional acts, as opposed to merely negligent acts, Russell argued that the need for apologies is likely even stronger. In cases of intentional acts, the effect of excluding the apology from evidence is likely to be minimal. Therefore an inclusive scope of application is advisable.  In concluding his presentation, Russell noted that copies of the BC legislation are available at the back of the room for people to peruse. The legislation states that apologies are not admissions of guilt and cannot be used as admissions of guilt in civil litigation.  

The Uniform Apologies Act is also available, and is the impetus of the Uniform Law Conference of Canada. In the ULCC’s view, harmonization of apologies legislation across Canada would be beneficial.  

In closing, Russell stated that in his view, apologies legislation is consistent with its underlying policies, the main one being to improve the resolution of disputes without resorting to litigation. In his view, widespread apologies legislation is needed. - apology legislation is needed 

 Break  

Questions & Answers for Leslie & Russell  

1. The first commentator thanked the panelists for their presentations. He stated that the explanation of the elements of apologies was helpful. He wondered, though, whether the recognition of wrongdoing could be qualified, or whether it has to be complete with respect to the transgression that took place. For example, say an incident took place where one person was yelling at another, while also accusing the other person, threatening the other person and breaking things. Does the apology need to explicitly address each of these elements individually? Or is it enough to say, “Sorry for the way I acted before”?  

Leslie stated that this is an excellent point. In her view, a good apology will recognize all parts of the transgression. If one does not apologize for all parts, then that indicates that the transgressor is not sorry for everything. She stated that it is necessary for the victim to know and understand exactly to what the apology is referring. She emphasized clear communication between the victim and the transgressor.  

2. The second commentator stated that she appreciated the apologies display. She stated that what she does not like, though, is the motivation to apologize, such as to get a plea bargain. But she agreed that in her own personal situation, she liked that her apologizer took responsibility for his actions, and was also able to forgive himself, which is also important. She also stated that she liked the McGuinty apology, to survivors of the training schools, because he acknowledged what the victim had to go through.  

Leslie stated that indeed the motivation of the person providing the apology is very important. She stated that the commentator’s experience is supported by others. If you feel that the motivation of the transgressor is strategic, the apology may not be as healing or the victim may not be able to forgive. In her research, Leslie found that recipients of apologies tend to feel very strongly about whether an apology is sincere or not and that the motivations of the wrongdoer and the feeling you have in your heart are important.  

Leslie also recognized the need for transgressors to acknowledge the courage to heal, especially for invisible injuries.  

3. The next commentator stated that she was surprised to hear that there is no law in Ontario regarding apologies. The commentator works in Québec with victims and there are centres where victims can go to find out about their rights and to tell about their own needs and the impact of the wrong. In having this kind of system, the victim is already on the road to some kind of healing/reconcilation. The aggressor has to be willing to recognize the harm done to the person and society as a whole and these centres give the aggressor the tools to do that.  

The commentator also questioned whether a public apology meets the needs of the victim, although she acknowledges that it would work in certain circumstances. She stated that people should not move too fast with apologies as this may create more harm than good. She stated that she was in favour of a more restorative justice idea, where healing circles are used.

Russell agreed with some of this commentator’s points, but stated that the legislation is to promote civil dispute resolution, not criminal. He noted that the provinces do not have constitutional jurisdiction to deal with criminal matters in provincial apologies legislation.  

4. The next commentator stated that he much enjoyed Leslie’s presentation, but noted that the problem in Cornwall is the length of time that we have been dealing with this problem in Cornwall. He stated that in her view the continual denial in the community has only perpetuated the harm. He thought that if we had victim centres like they do in Québec where victims can be informed of their rights and where they can be validated that this would be helpful himself. Concluding, he stated that he was disappointed that the panelists did not talk about apologies in the context of historical sexual abuse.  

Leslie noted that tonight we are not focusing on the criminal context, but on the civil context, and cannot discuss Phase 1. She stated that we do not have these victim centres in Ontario that can help to facilitate apologies. This will only happen if there it litigation and the lawyers get together and talk about the potential for an apology.  

The commentator noted that if these centres had been present here at the time the abuse was perpetrated then a lot of things could have been stopped. Counselling could have started with this process, which is necessary.  

5. The next commentator asked what happens when apologies are forced, such as in the context of human rights legislation, when the tribunal forces a transgressor to apologize as part of the remedy. How do we get a genuine apology from someone who has vigourously defended their interests in a case?  

There was a broad audience discussion about whether apologies were seen as sincere. Leslie wonders if sincerity may be likened to a situation where a parent forces a child to apologize for a wrong and the child does not actually have any empathy for the victim. An apology made in these circumstances may not have the same kind of impact as a genuine apology.  

In Ontario there have been a number of cases where hospitals have issued apologies in the face of litigation and often such an apology has been transformative in the case. Also having young people think about and make apologies can be positive.  

Another commentator stated that as a victim part of her motivation to go to court was to have the wrongdoer accountable and for him to apologize. The motivation was not to get money.  

Jan stated many institutions realize that their wrongs have been omissions in failing to act correctly. She also stated that a forced apology may indeed be redemptive for some people, as it is the recognition of a wrong by society and that some healing can come as a result of that.  

6. The next commentator asked whether an omission can lead to an apology? Can it be part of the recognition of wrongdoing?  Russell thought an omission could most definitely lead to an apology.  

7. The next commentator stated that most victims are young children and that they are victimized by powerful people who have been trusted by parents. He asked whether there is some mechanism that would allow children to bring this up, so that someone can help them before they reach adulthood. Right now, he feels, kids don’t have any place to go.  

Colleen acknowledged that this is a good point. She stated that in Phase 2 we hope to hear suggestions for a safe place where kids can come forward. She recognized that harm magnifies over time and that early intervention is best. However, she stated that it will likely be the case that we will need several solutions, as some solutions will be good for  some kids, but not others. But working on these kinds of solutions that Phase 2 wants to do.  

8. A commentator stated that much of the talk about protecting insurance policies when apologizing was very harsh. He stated that it was very difficult for victims to listen to.

Russell stated that he understood that this difficult issue, but that this kind of consideration is one of the institutional barriers that keep people from apologizing.

 Phil stated that indeed it is a sad commentary on society that we need this kind of legislation to get people to do the right thing.  

9. The next commentator stated that it should not be the victim who is contacting the institution for the apology, but that the institution should be contacting the victim to offer it’s apology.  

Leslie stated that there is often a lack of communication about what the victim wants to hear. She noted that it is a systemic problem and that the needs of the victims need to be communicated to the wrongdoer to ensure proper follow through.  

10. The last commentator stated he feels a critical point is being missed. We should be focusing on protecting children. While he recognizes that apologies are important, protecting children from abuse is more important.  

Jan concluded the session by recognizing the moral core of apologies and stating that perhaps we as a society have moved away from this moral core. She stated that we need to remove disincentives to making apologies. She thanked the audience for coming out and for their excellent participation.  

NOTE: The text from the Apologies display at the workshop follows, as does the Uniform Apologies legislation.