Last Updated: Friday - 09/24/2010
Week of February 2, 2004
'Who should pay?' asks bishop
Identifying the guilty is vitally important
A Shepherd Speaks
By BISHOP FRED HENRY
In mid-December, five Toronto policemen, all members of a disbanded drug squad, were charged with 40 counts of corruption, including extortion, theft and obstruction of justice, as part of a two-year investigation by the RCMP. Some of the charges relate to incidents dating back to 1995, and have resulted in the staying of at least 115 criminal charges laid by the former squad and lawsuits against the force.
The five serving officers were suspended with pay. One has also been charged with sexual assault, uttering a threat and possession of cocaine and heroin for trafficking.
Let us suppose that the police officer in Toronto who has been charged with sexual assault is convicted and sentenced. Then, the surviving victim, seeking damages for the injuries inflicted in this horrific crime, launches a lawsuit against the officer involved, the Chief of Police of Toronto, the mayor, and the City of Toronto.
However, the lawyer for the insurance company of the City of Toronto, without consulting the mayor or the city council, (the lawyer probably doesn't even know that there has been a new mayor elected in Toronto), aware of the exposure of the insurance company, decides that it is in the company's best interests to try to sue all Canadian mayors, police chiefs, Canadian police officers, and their respective city corporations throughout Canada.
The insurance company's thinking is that if we can spread the liability out on a broader base, we can cut our losses. Since we are talking big dollars, let's push this thing to its furthest limits and point the finger wherever we can.
The Government of Canada with its own vested interests decides to join in the action. Most people would be inclined to say, "Wait just a moment: this is absolutely ridiculous. What a waste of time, energy and money."
We would simply say that most of these individuals and corporations are simply not suable entities within jurisdiction of this crime of sexual assault. The surviving victim is not left without remedy as such a person can look for redress to individuals and corporate entities conduct the policing of the city of Toronto.
Because of his role in the community, a police officer is endowed with considerable authority and, accordingly, is recognized as a person deserving of trust. When a police officer abuses this trust, they breach not only their fiduciary obligation with respect to their victim, but also breaks faith with all those in the community. The police officer rightly should be held accountable for their breach of trust, and if other civic officials have facilitated an officer's conduct though negligence, they too should be held accountable. The chief of police or the mayor, however, absent fault, should not be held liable for a police officer's breach of trust or fiduciary duty.
In an analogous situation the Canadian Conference of Catholic Bishops (CCCB) recently appeared in the Supreme Court of Canada as an intervener in the Bennett case of sexual abuse by a priest in the Diocese of St. George's in Newfoundland.
The CCCB argued the Roman Catholic Church is not a suable entity and that the Diocese of St. George's should not be held vicariously liable. It asked that the Supreme Court of Canada uphold existing precedent including the trial and court of appeal decisions in this case that decided the Roman Catholic Church, while an ecclesiastical entity, is not a suable entity.
The trial judge, Mr. Justice Wells, put it aptly when he said: "I do not think it is sound in law or otherwise meaningful, to make a finding of liability against the Roman Catholic Church which is neither a person or a corporation within this jurisdiction, but rather is the embodiment of a religious faith with worldwide adherents and a governance by bishops subject to the authority of the pope."
While the plaintiffs cannot sue the Roman Catholic Church, they are not left without a remedy as they can look for redress to those corporate entities and individuals that conduct the Church's temporal affairs. In this case, that entity is the Episcopal Corporation of St. George's.
Because of his ecclesiastical office, a priest is endowed with moral and spiritual authority and, accordingly, is recognized as a person deserving of trust, not only by parishioners, but others in the Church. When a priest abuses this trust, he breaches not only his fiduciary obligation with respect to his victim, but also breaks faith with all those in the Church.
The priest rightly should be held accountable for his breach of trust, and if Church officials have facilitated a priest's conduct through negligence, they too should be held accountable. The bishop, however, absent fault, cannot be held liable for a priest's breach of trust or fiduciary duty.
To impose vicarious liability, that is to say to impose liability where there is no fault, on a bishop because a priest abuses his position of trust is wrong. It would be similar to making the Law Society responsible for all wrongful actions that arise from a lawyer's breach of trust because it had cloaked the lawyer with the authority that commands such trust.
The abuse of children is a serious sin and a crime. The Bishops of Canada have had guidelines in place since 1992 and are committed to preventing child abuse and making the Church a safe place for children.
Very little of the above has been reported in the media. I wonder why?
To impose liability where there is no fault, on a bishop because a priest abuses his position of trust is wrong.
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