As reported in a recent CBC News story, the Anglican Church of Canada apologized recently for failing – for over 20 years – to make public a confession of sexual misconduct by one of its priests. Gordan Nakayama, father of well-known Canadian writer Joy Kogawa, confessed his crimes to the church in writing in 1994. In reference to his “sexual bad behaviour”, Nakayama said he was “sincerely sorry [for] what [he] did to so many people.”
It is hard to predict what impact this apology might have had on Nakayama's many victims, had it been made sooner. Victims of sexual abuse often struggle with guilt, shame, anger, and fear. In cases where the abuser was a powerful or trusted community figure, like a priest, victims are often too scared to come forward. Historically, victims who did come forward were frequently disbelieved and shamed back into silence. Acknowledgment of the wrong inflicted upon them by the perpetrator of their harms, or an institution like a church that may be vicariously liable for their harms, can be of enormous psychological value to those whose lives have been impacted by sexual abuse. Those who work in mental health often speak of the significant health benefits associated with earlier intervention and support. Delays often result in more entrenched harms and injuries, which make healing more difficult.
The Apology Act, 2009 is an Ontario law that protects from liability in civil lawsuits and other proceedings those who apologize for wrongs they have committed or allowed to occur. Under this legislation, an “apology” is “an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.”
Evidence of an apology made by or on behalf of a person in connection with sexual abuse (or other matters) cannot be used in legal proceedings to prove the apologizer is “guilty” (example, liable), unless it falls under one of the narrow exceptions set out in the legislation.
In addition to promoting the victims' healing, where the apology is made in the context of existing or threatened litigation, it may also be of strategic value to the party apologizing. In some cases, an apology may help avoid a lawsuit. In others, an apology may protect a party from an award of aggravated damages. With intentional torts, like sexual assault and battery, the purpose of aggravated damages is to compensate a plaintiff for the humiliating, oppressive, and malicious aspects of a defendant's conduct. Aggravated damages are very commonly awarded in sexual abuse cases. A carefully worded apology can not only help restore a victim's dignity, but may also counteract allegations of oppressive and malicious conduct and thus, the risk of an aggravated damages award.
When and where an apology is made is very important. As noted, the Apology Act contains exemptions which describe circumstances in which apologies are not protected. For example, a person who apologizes when testifying at a civil trial is not protected from liability. We recommend that parties who are or may become involved in legal proceedings in Ontario review the Apology Act and consult their lawyers about opportunities to make a protected apology.
Anglican priest Nakayama died in 1994, shortly after confessing his wrongdoing to the Anglican Church. His remaining victims are elderly, and presumably many have passed away. While we applaud the Anglican Church for making Nakayama's apology public, and Joy Kagawa's courage in speaking publicly about what is no doubt a painful part of her family history, the value of this disclosure is greatly diminished with the passage of time. The majority of Canadian provinces and territories now have some form of apology legislation. We hope that in a similar situation, an institution with knowledge of sexual misconduct will investigate its options and take the opportunity to make known an apology like Nakayama's, if not to the public at large then at least to those who may similarly have been harmed. The opportunity to make a significant difference in the lives of victims, while remaining protected from liability, should not be wasted.
Elizabeth Grace and Anna Matas are civil sexual abuse lawyers in Toronto. Elizabeth Grace has specialized in sexual assault matters for nearly two decades.