R. Douglas Elliott: “So Sorry: The Legal Myths and Social Realities of the Official Apology,” 2017 C4eJ [10]

SO SORRY: THE LEGAL MYTHS AND SOCIAL REALITIES OF THE OFFICIAL APOLOGY
[☛ watch the video | read the rest of the symposium on The Ethics of Apology: Interdisciplinary & International Perspectives]

R. Douglas Elliott*

Sorry.

It was a big hit for Canadian Justin Bieber.[1] It may be the most “Canadian” of all words.

And yet, it is a word that appears to be anathema to one class of Canadians: lawyers. For them, as English singer Elton John famously reminded us some years ago “sorry seems to be the hardest word.”[2]

Traditionally defence lawyers, perhaps especially government defence lawyers, have advised their clients to avoid saying “sorry”. When asked about requests for apologies, the conventional response that appears to be most often recommended by defence lawyers to their clients is to say words to this effect: “you can’t apologize – it will be used against you and you will get sued.” It seems that most defence lawyers recommend saying either “no comment” or if litigation has already started “I cannot comment on a matter that is before the Courts.”

However, is that traditional advice really good advice? Is it even well-founded advice? In the context of government lawyers, is it an ethical and socially acceptable response?

Despite lawyers’ attempts at restraint, there can be no doubt that the official apology is becoming an increasingly common phenomenon in Western democracies like Canada. Prime Minister Justin Trudeau has most recently promised an apology to Canada’s LGBTQ2[3] communities before the end of 2017.[4]

Will the LGBTQ2 apology lead to lawsuits? The Prime Minister is not a lawyer himself. Is he about to make a terrible mistake? Has he ignored the wise advice of his legal advisers in making this commitment?

In this brief paper, it will be argued that the notion that an official apology will lead to legal liability is an urban legend with no basis in fact or law in Canada.  On the contrary, a well-timed and carefully crafted apology may serve to limit or avoid legal liability. Apologies do not create liability where none exists.  Accordingly, the lawyer who automatically advises a client to refrain from an apology as the “safest” course is actually engaging in professional negligence. Further, in the context of government lawyers, such advice may verge on the unethical.

Next, we will examine apologies as a social good. It is in the interests of all clients to resolve contentious matters fairly. Apologies are a cost-efficient means of advancing that objective. They have the added advantage of being the ethically correct thing to do in many circumstances. That certainly includes the proposed apology to LGBTQ2 Canadians.

Finally, we will examine the proposed apology by the federal government to Canada’s LGBTQ2 communities. It will be seen in the context of this specific example that the popular notion that apologies lead to lawsuits is demonstrably false. Further, it is socially and morally imperative for this apology to proceed. The timing is right. The affected community is deserving of the apology and willing to accept it. However, it is important that the apology be well constructed and delivered in accordance with recognized criteria in order for it to be effective.

The Official Apology and the Myth of Legal Liability

Lawyers traditionally prefer that their clients not make any public statements, especially statements that could be harmful to their clients’ interests. That is particularly sensible advice in the context of criminal investigations. This sage advice has spilled over and become well entrenched in the context of civil liability.

However, while we all have the right to remain silent, remaining silent in the face of a historic wrong does not avoid liability for those historic wrongs. Moreover, making an official apology has never resulted in civil liability. Not once, in all of Canadian legal history has an official apology resulted in civil liability.

This author’s first encounter with this stubborn myth that apologies must be avoided because they lead to lawsuits occurred in the context of Canada’s tainted blood scandal. Some background is in order for those unfamiliar with this episode.

For many years, Canada’s blood transfusion service was run by the Canadian Red Cross Society (the “Red Cross”), at the time Canada’s largest and perhaps most respected charity.  This Red Cross operation was funded by tax dollars, and overseen by both levels of government. The Red Cross itself was otherwise supported entirely by donations by generous Canadians.

Tragically, thousands of Canadians became infected with HIV and hepatitis C from blood transfusions. This led to calls for an official apology from the Red Cross. The Red Cross doggedly refused to do so. Privately, they cited concerns about civil liability.

The result of this strategy of silence was catastrophic for the Red Cross. It was pilloried in the national media as the Krever Inquiry[5] into the tainted blood scandal dominated the headlines for many months. Canadians reacted with fury to this heartless and legalistic stance. Donations dried up. Even before the Krever Report was delivered, the Federal Government announced that the Red Cross would lose its most valuable program, the blood transfusion service.

Already facing multiple lawsuits related to HIV infection, the Red Cross was hit with multibillion dollar class action suits for HIV.[6] The now disgraced organization was forced into insolvency proceedings under the CCAA.[7] A criminal investigation resulted in an eventual plea bargain involving a guilty plea, a $5,000 fine and a $1.5 million-dollar donation to aid the children of victims seeking higher education. There would be numerous settlements and judgements in the HIV litigation, and two historic billion dollar settlements in the hepatitis C class actions.

It may surprise some that are familiar with this sad history to learn that the Red Cross did eventually apologize for its shortcomings in this tragic episode. It did so on multiple occasions, beginning the day the Krever Report was released. It was too little, too late. Some did not notice. Given the earlier intransigence, some who were aware of the apology did not believe that the Red Cross was sincere.

The refusal to apologize – the strategy of silence- certainly did not help the Red Cross avoid either civil or criminal liability.

Numerous other examples could be cited where there have been findings of civil liability for historic wrongs in the face of a failure to apologize. In fact, strictly speaking, all civil judgements for damages arise out of historic wrongs done to the injured party or parties.

Is there any evidence that an apology can form the basis for civil liability? Some lawyers appear to fear that it will be construed as an admission against interest, and either be used as evidence or will encourage an injured party to sue.

This history of official apologies in Canada demonstrates that those concerns are unfounded.

The modern official apology can trace its moral roots to religion, for example in the Christian ‘confession of sin’ or the Jewish rituals of confessions and forgiveness on the high holiday of Yom Kippur.

In the political context, the first state apology was given by the West German Government for the actions of the previous Nazi regime following the Second World War. This apology was accompanied by voluntary reparations paid to some victims by the German state, notably to the Jews who were the primary target of Nazi oppression. This was part of a larger government program begun under the Allies that included constitutional reform to guard against future tyranny, “denazification” of the law and society, and public memorialization of the persecution.[8]

Many Western states have since followed the German example, including Canada. Apologies have been forthcoming from both levels of Canadian government for various historic wrongs. The federal government has apologized for a wide variety of historic wrongs over the years, including such diverse events as tainted blood,[9] residential schools,[10] the “Sixties Scoop,”[11] the Chinese Head Tax,[12] Japanese internment in the Second World War,[13] persecution of Ukrainians in the First World War and the racist exclusion from Canada of the Sikh passengers on the ship Komagata Maru.[14]

Some of these apologies were for historic events to the living survivors, perhaps most famously in the case of residential schools. In others, the apology was purely symbolic. In the case of the Komagata Maru, for example, the incident had occurred 102 years earlier and all of the directly affected persons had long since died.

In some of these instances, such as tainted blood, there were pending lawsuits seeking redress. In others, such as residential schools, the apology was connected with settlement of large class action lawsuits. In some cases, modest voluntary “ex gratia”[15] payments were paid by the Crown to compensate individuals. In some cases, such as the Ukrainian apology, no individual compensation was paid but public funds were expended to historical education or other forms of group redress. In still other instances, such as the Komagata Maru, there was simply an apology.

These myriad examples make it clear that compensation is often connected to an official apology either through settlement of a lawsuit or through a voluntary program. As will be discussed below, in some situations it will be an essential part of an effective apology. However, that is not always the case. It is certainly not necessarily the case. Certainly, the wisdom of offering some form of reparation as part of an apology is different from triggering an obligation to do so by offering the apology.

In none of the examples cited above did an official apology trigger civil actions. Moreover, in cases where litigation was ongoing or was subsequently launched, not once did plaintiffs’ counsel make use of an official apology as evidence of liability on the part of the Crown – or anyone else. It has never happened, despite many official apologies.

Admitting a mistake is not the same as admitting a legal fault. The same defences available before an apology remain available after an apology. The Federal Crown is in a particularly advantageous positon in this regard. It has all of the usual advantages enjoyed by large and powerful defendants, including Canada’s largest in-house legal department and the use of limitation defences. The Crown has special advantages conferred by the Courts, especially a very limited liability for otherwise negligent conduct. Most importantly, the Crown is the only defendant who can arrange to legislate away any liability for wrongful acts with the assistance of Parliament. The Crown has little to fear from any apology.

Some jurisdictions have gone so far as to enact legislation to confirm the legal irrelevance of an apology. Ontario has passed an Apology Act[16] to protect those who apologize from civil liability.

Sadly, it is not clear that this law has made much impact on defence counsel. For example, the Apology Act was in place at the time of tragic Algo Mall collapse in Elliot Lake. Despite scathing findings by a Commission of Inquiry[17] that found moral fault with many actors, and the sorry example of the Red Cross, not one of those whose failings contributed to this terrible tragedy has apologized.

A court has no power to order an apology, so it is never officially sought in lawsuits. Lawsuits are about money, usually.

Some might think that even in the face of the clear evidence that apologies are not harmful, remaining silent is still the “safer” course. However, that does not appear to be true either.

Although it is not free from doubt, studies done in the USA in the context of medical error have shown that injured parties are less likely to sue and more willing to settle if they receive a meaningful apology.[18] Even those who criticize these analyses do not offer any convincing evidence that apologies increase the likelihood of lawsuits or that they are used as evidence in such lawsuits.

According, defence lawyers who advise their clients not to apologize because it will result in liability are giving bad advice. While it may seem like the “cautious” course of action, it is in fact wrongheaded and perhaps even reckless. Lawyers should not be giving lazy advice based on “alternate facts.” Giving advice that may increase the risk your client will be sued or will have greater difficulty in resolving a dispute is simply negligent.

Government lawyers are in a unique situation. It is a well-worn maxim of Canadian law that the Crown never loses. While government lawyers must naturally be mindful of the public purse, apologies cost nothing. They are one of the cheapest tools in the government lawyers’ arsenal.

If failing to consider an apology amounts to negligent legal advice for other defence counsel, it is more so the case for government defence lawyers. Government lawyers should act in the public interest. When misguided or careless acts by government actors have injured other Canadians, it is not simply negligent to fail to consider the wisdom of an apology. To fail to advise that an apology is merited would be to place the interests of defending a few government actors ahead of the public interest.

That would not just be negligent, it would be unethical. 

The Official Apology: A Social Good

Some people question the value of an official apology. Some feel that there have been too many apologies, thus debasing their value. Others feel that apologies are empty gestures.

Official apologies are not always effective. When they are effective, apologies fulfill three important social goods that monetary damages awards can never fulfill.

First and foremost, they are an acknowledgement by the person who offers the apology that their actions have harmed others, and that this should not have happened. A refusal to apologize implies that the person is unwilling to accept that their actions contributed to a problem. The suggestion is made either implicitly or overtly that the actions causing the harm were acceptable or unavoidable, or worse still, that the victims themselves are to blame for the problem. This is not an admission of legal fault, but of moral fault. A good example of this intransigence in another context is the ongoing refusal of the Turkish Government to acknowledge the Armenian genocide, a wrongful act widely recognized by others including Canada.[19] The implication of the refusal is that the historic conduct was legitimate, or worse still, that the events simply never happened.

Second, the apology provides succor to both the affected victims and members of their community.  It cannot be overstated how comforting it is for victims of a historical wrong to be told that they should not have suffered in this way by the official spokesperson for the wrongdoer. The beneficial effects can lift up entire disadvantaged communities. This seems to have been the case for Canada’s Sikh community, for whom the Komagata Maru apology by Prime Minister Trudeau appears to have been a touchstone of their acceptance as equal Canadians.

The third social good is one that is often overlooked. Canadians are fair and just people. As individuals, they are likely to find apologies to injured parties difficult to convey and not necessarily meaningful to those who have suffered.  The official apology provides a collective voice for a contrite society. There was not a whisper of opposition to Prime Minister Harper’s apology for residential schools, as Canadians wanted him to convey their sense of social remorse on their collective behalf.

Not all apologies are created equal.

The apology must be sincerely expressed, and the affected person or groups must be ready and willing to accept it. Timing can be important.

The apology must be sincere, and be seen to be sincere. In the case of the Red Cross, the aggressively defensive posture taken over a prolonged period made it very difficult for the Red Cross to offer an apology at a later time that appeared to be sincere. Even a change in leadership at the Red Cross did not seem to help.

The language of the apology is also important. There is a distinction to be made between the true apology and the expression of regret. The expression of regret appears to have been contrived by lawyers and achieves none of the social goods associated with apologies. It is an insincere public relations exercise, and it is usually viewed as such. Such half-baked or “quasi-apologies” do more harm than good.

An apology cannot be premature. An apology will not be perceived as sincere if the conduct is ongoing and no effective action is being taken to correct it. This does not mean that the problem must be fully resolved before the apology is offered. For example, while no sensible Canadian thinks racism has been brought to an end in this country, that has not prevented effective apologies for particular historical acts of racism. For example, while racism toward indigenous persons remains a major problem in Canada, the closing of residential schools put an end to a major official racist activity.

As we have seen in the example of the Red Cross, an apology can become stale. That is especially the case if the wrongdoer goes to great lengths to deny the wrongdoing or evade responsibility for it. However, those “Stale-dated” cases are the exception. As we have seen with the Komagata Maru, rather than “too little, too late”, the applicable maxim with delayed apologies is normally “better late than never.”

Fundamental to the effective apology is a willingness to acknowledge that a mistake was made that caused harm. It is important for the affected community to know that this mistake has been publicly acknowledged. In part this helps reverse the social stigma that so often accompanies that harm. However, in large part it is critical because it involves an endpoint to the wrongdoing and a commitment that it will not be repeated in future.

Political scientist Matt James speaks of an authentic political apology having 8 elements as follows:

  • Recorded officially in writing
  • Names the wrongs in question
  • Accepts responsibility
  • States regret
  • Promise non-repetition
  • Does not demand forgiveness
  • Is not hypocritical or arbitrary
  • Undertakes—through measures of publicity, ceremony, and concrete reparation – to engage morally those in whose name the apology is made and to assure the wronged group that the apology is sincere

With respect to content, Professor Blatz and colleagues from the University of Waterloo have identified 10 elements that are need for an effective official apology:

  • Remorse;
  • Acceptance of responsibility;
  • Admission of injustice or wrong doing
  • Acknowledgement of harm and/or victim suffering;
  • Forbearance, or promises to behave better in the future
  • Offers of repair
  • Praise for the victims as valued members of society;
  • Reassurance to the majority that their predecessors are the wrongdoers, and not them personally;
  • Praise for the fairness of the current system;
  • Emphasis on changed laws, values and beliefs.[20]

The proposed framework for analysis is a useful one. The authors point out that some of these elements are aimed at ensuring that the unaffected majority accept the reasons for the apology. The most common reason given for objecting to an apology is that the person objecting does not feel personally responsible for what has occurred.  In this author’s experience, the second major concern that tends to be expressed is a related one, namely that the cost of repair should not be borne by the current generation who may be entirely blameless.

The authors note that there is a controversy in the literature as to the importance of element 6, namely redress for the wrong. They conclude that where the victimized group is seeking redress and an apology, both elements are critical to an effective apology. Interestingly, redress without an apology may provoke anger. Unsurprisingly, it appears that modest offers of redress are more likely to be viewed as adequate by the unaffected majority than by the recipient group.

There are a number of other factors apart from content that the authors suggest may impact on the effectiveness of the apology. These include:

  • The Quality of the Relationship between the Apologizer and the Apology Recipients
  • Severity of the Harm and Timing of the Apology
  • Victimized Minority’s Commitment to Redress
  • Politics, Pressure and Power

One should guard against expectations on either side of the apology being a cure all for a social ill. No apology, no matter how well crafted, can have that power. That is especially the case where the actions are part of a systemic problem that has had enduring effects. Residential schools, for example, were a cornerstone of oppression of indigenous peoples but they were not the only source of the problem. Just as closing them did not end the problems experienced by indigenous peoples, neither could an apology magically erase their effects accumulated over a period of more than a century.

The Proposed LGBTQ2 Apology

For most of the history of the LGBTQ2 community, we have struggled for our rights and have relished our hard-won victories. Despite the misconception that same sex marriage ended all inequalities, the struggle continues.

It seems that the first demand for an official apology in Canada came from Professors Gary Kinsman and Patrizia Gentile in 1992.[21] Their focus was on what Americans call the Lavender Scare, and what has become known in Canada as the LGBT Purge. Prof. Kinsman went on to lead a group known as the We Demand an Apology Network.  Although the group’s initial focus was on the LGBT Purge, it has since broadened. They issued an important report last June.[22]

2016 also saw the release of “Grossly Indecent: The Klippert Report.”[23] This comprehensive Report was prepared by the Just Society Committee of Egale Human Rights Trust. Egale is Canada’s leading LGBTQ2 rights organization.

The Just Society Committee echoed the demand for an apology. The Report documents the wrongs done by the Federal Government to Canada’LGBTQ2 people. While the Report is lengthy, some highlights are appropriate highlight to understand why the apology should be made by Canada. Given Canada’s current high standing as a leading country in protecting LGBTQ2 rights, it is difficult for some Canadians to understand what nice Canadians could possibly have done wrong to LGBTQ2 people.

Prior to Contact,[24] indigenous people living in the territory that would later become known as Canada accepted and celebrated diverse sexualities and gender identities. European settlers brought with them their homophobic and transphobic religious beliefs, and laws governing sexual behaviour that reflected those religious beliefs. As part of the project of cultural genocide commenced by Europeans and continued by Canada, a concerted effort was made to extinguish traditional indigenous cultural values and to punish those who embraced them. Two Spirit youth were especially vulnerable in the purgatory of residential schools.

In Canada, as in other Western societies, the twin pillars of homophobia have been the Church and the State. Of course, they were never quite as separate as that image would suggest. Canada has facilitated religious homophobia and transphobia, from the church run residential schools to Canada’s defence of a legal definition of marriage that expressly referred to ‘Christendom.”

In addition to its role in enforcing one set of religious values, the state has played an independent and direct role in both fostering and enforcing homophobia. The criminal law against buggery was the cornerstone of this oppression. Although we inherited this law from England, we have never repealed it.[25]

After Confederation, the trend was to inventing new and more draconian Canadian ways to criminalize sexual minorities. Canada is unique in the Commonwealth in having bawdy house laws focused solely on indecent acts, the laws that were used in the infamous Toronto bath house raids of 1981. Those laws are still on the books. Even repealed constitutional laws can still be resurrected by police and prosecutors to target LGBTQ2 people for events of long ago, as we saw in the misguided and failed prosecution of Rev. Dr. Brent Hawkes.[26]

This trend to increasingly drastic criminal sanctions reached its nadir in 1967. The life sentence of Everett Klippert as a “dangerous sexual offender,” just because he had gay sex, was shamefully upheld by a majority of judges of the Supreme Court of Canada.[27]

As Professor Humphrey was setting to work on drafting the Universal Declaration of Human Rights, the Allies were allowing newly freed homosexual prisoners of the Nazis to be re-arrested and incarcerated in Germany.[28] Canada itself banned homosexuals from immigrating to this country beginning in 1952.[29]

One of the most odious of the federal government’s homophobic activities was the LGBT Purge. Beginning after the Second World War, homosexuals began to be viewed as a national security risks and unfit for employment owing to their so-called “character weakness”.  Thousands were hunted down, and countless lives were ruined.

Today, Canada’s politicians rejoice in our status as a progressive country on LGBT rights. Our Prime Minister takes a leading role in Pride Parades. While this is a positive development, let us never forget that the rights we enjoy in Canada’s LGBT community were rarely a gift of politicians.

In fact, for some of us who sacrificed so much in that struggle, it is a little galling to see elected politicians taking credit for our progress. The reality is that governments fought us tooth and nail in the courts. The people who really deserve the praise for our progress are brave activists, courageous lawyers and wise judges.

Canada likes to think that it is always the leader on LGBTQ2 rights, but on the apology, question we are playing “catch up.” Germany was the first country to make an apology, when it belatedly agreed to recognize homosexuals as victims of Nazi persecution. A second apology has already been made by Germany this year, as it moved to cancel all the convictions under paragraph 175 and to provide modest compensation to the victims of that unjust law.[30] Extremely moving apologies were made in the Parliament of the State of Victoria last year. New Zealand has also had an apology in its Parliament. Prime Minster Brown of the United Kingdom famously publicly apologized to Alan Turing, and those like Turing.

Having already fallen behind some other countries, Prime Minister Trudeau is in danger of falling behind his fellow Canadians. The Chief of Police of Toronto made a controversial expression of regret for the 1981 bath house raids. A more effective apology for the bar raids of the 1970’s was made in August by the Mayor of Montreal and that City’s Chief of Police in August of this year. We are seeing a trend.

The Australian precedent set by Premeir Daniel Andrews in Melbourne is a good example for the Prime Minister to consider. The apology was created after a process of community consultation. It was given in the House of the State of Victoria, with affected persons present in the galleries. It was a non-partisan event, with leaders of several parties joining in. The apologies went into considerable painful detail about the kind of wrongs that had been done, and there was no attempt to whitewash the past. There was a sincere acknowledgement of the human suffering that had been caused. It was a true apology and not a mere expression of regret. There was clear sense of commitment from all in the House to avoid repeating those errors.[31]

The principal criticism to be made of the State of Victoria as a model is that, in enacting a contemporaneous law to allow cancellation of convictions, it included an unnecessary and selfish bar to any claims for compensation by victims. Not only did it lack the sixth of the enumerated elements set out above, it expressly precluded that element. Strategies that stress limiting state liability as an objective of the apology run a serious risk of failure.

Offers of repair can take several forms and we can expect at least some of them to be present in connection with the proposed apology, at least if it is to be effective.

A Bill is before Parliament to repeal section 159 of the Criminal Code, the centuries old “buggery” law.[32] It is essential that this section be repealed as part of an effective apology to meet elements 5 and 6.

The Government has also committed to cancellation of homosexual criminal convictions, as has happened in other jurisdictions. This is also an element of the repair described in element 6.

The most controversial elements attached to element 6 are actual financial compensation to victims and the LGBTQ2 community.

Of the countries that have cancelled convictions, only Germany has paid modest compensation.  This will cost Canada little, and should be done. Germany also provided educational endowments to improve public awareness of LGBTQ issues. This has been done by Canada in numerous other cases of official apologies, and collective compensation of this type is warranted.

The most challenging part of element 6 will be the Government’s resolution of the LGBT Purge class action. The LGBT Purge was clearly deliberate wrongdoing, and caused significant harm to many Canadians who are still living with the consequences today. As the cost will be high, it remains to be seen whether the Government will have the courage to do the right thing.

There are some encouraging signs. The Government recently settled the “Sixties Scoop,” with little or no outcry from the public.

Although there was more criticism of the Khadr settlement, that likely has to do with the identity of Khadr, namely his unsavoury family and the perception by some that he participated in terrorism or at least fought against Canada. In this case, there can be no question that the victims were patriotic Canadians who were victimized because of their sexual orientation. And after all, as the Prime Minster observed in connection with Khadr, when our government violates the rights of citizens “we all end up paying.”

Accordingly, with adequate planning, the proposed LGBTQ2 apology should be able to contain all 10 elements in order for the apology to be effective.

If we examine the four contextual factors set out above, all favour the likely effectiveness of the proposed LGBTQ2 apology.

Relations between the LGBTQ2 community and the majority are better than ever. The majority of Canadian now accept that sexual minorities of deserving of equality. The current Prime Minister has demonstrated his support for the LGBTQ2 communities on numerous occasions, and an apology from him is likely to be perceived as sincere by most in the LGBTQ2 communities.

Although the harm suffered by the LGBTQ2 community has been prolonged and severe, it has not been so severe as to be unforgivable. Canada has moved away from its homophobic past both officially and unofficially to a significant extent. The majority of Canadians will likely accept that the apology is deserved. The time is ripe.

The LGBTQ2 community is a diverse one, but it has strong and effective leadership. There is a broad consensus in the leadership of the LGBTQ2 community that an apology is desirable. The only debate is as to specifics, such as content.

There is subtle external pressure to provide the apology, in the sense that Canada would not like to see itself eclipsed by other countries on LGBTQ2 issues. The current Government has made LGBTQ2 issues a priority and made their stance on these issues part of their party brand. The apology is likely to appeal not only to the LGBTQ2 community, but with progressive voters. There is good reason to think that the man who must make the final decision on the matter, Prime Minister Justin Trudeau, is personally sincerely disposed to make this apology.

While we look forward to the apology from the Prime Minister, he is clearly not the only one who should apologize. The LGBT Purge was driven more by the RCMP (or more particularly, that branch of the RCMP that has now become CSIS) and by the senior command of the Canadian Armed Forces than by elected officials.

Other police forces, municipalities and provincial governments played a role in LGBTQ2 persecution.

We should not forget non-state actors. On this score, the traditional Christian churches have much to confess. Given the history of our country, the Roman Catholic and Anglican Churches bear special responsibility for these historic wrongs. In particular, the bear great responsibility for the wrongs done to Two Spirit people.

It is said that confession is good for the soul. And in traditional Christian practice, only the contrite should be forgiven.  So far, our churches are largely unrepentant, but that may change with time, as it did with residential schools.

Conclusion

It is clear that the failure to apologize to the LGBTQ2 community has not avoided litigation. Since the advent of the Charter, Canada has fought and lost numerous cases with the LGBTQ2 community. Some, such as Little Sisters Bookstore,[33] involved odious and deliberate discrimination by Canada that Canada nonetheless tried to defend in the highest Court in the land.  The world’s largest class action judgment for LGBTQ2 discrimination was awarded in the CPP same sex survivor pension case, Hislop v Canada.[34] At the time of writing, a major class action lawsuit is pending arising out of the purge.

Canadian legal history demonstrates that an effective official apology provides benefits not just to the affected group, but to society as a whole. The LGBTQ2 apology is likely to be no exception. The process underway, led by an advisory committee co-chaired by eminent trans lawyer Marie Laure Leclercq and openly gay M.P. Randy Boissonault, involves significant LGBTQ2 community involvement and outreach.  The Australian model is under active consideration.

We can only hope that lawyers do not get in the way of this process. It is difficult to explain why some lawyers continue to quake and quiver at the prospect of an official apology.   Whenever officials withhold an apology, or deliver a limp expression of regret, the restraining influence of the legal profession is not difficult to detect.

This baleful influence is not only unfortunate. It is actually based on a misapprehension of the law. Those offering such advice, especially government lawyers, are doing a disservice to their clients and engaging in professional negligence.

To quote Elton John singing once again, “It’s sad, so sad, it’s a sad, sad situation.”[35]

 

* Douglas Elliott, B.A., LL.B., L.S.M., is partner in the law firm of Cambridge LLP, where he leads its class action group and is co-chair of its constitutional law group. He is Chair of the Just Society Committee of Egale Human Rights Trust and lead author of its 2016 Report, “Grossly Indecent”.  Mr. Elliott is also lead counsel in the class action Ross et al. v AGC seeking redress for victims of Canada’s “LGBT Purge.” He has received numerous awards for his social justice work, including the Ontario legal professions highest award, the Law Society Medal.  He acknowledges with profound gratitude the assistance of his co-op student, Melanie Mayhew-Hammond in the preparation of this paper.

[1] DefJam Records – Justin Bieber, “Sorry” (October 23, 2015), online: Justin Bieber <http://www.justinbiebermusic.com/release/sorry/>.

[2] Elton John, “Sorry Seems to be the Hardest Word” (November 1, 1976), online: Blue Moves, Disc 2 <https://www.eltonjohn.com/discography/blue-moves>.

[3] Lesbian Gay Bisexual Trans Queer 2 Spirit. This is the form of the acronym for sexual minorities currently in use by the Federal Government and it will therefore be used in this paper. Some find it lengthy and cumbersome, while others criticize it for failing to be fully inclusive. For example, many would add the letter I for Intersex.

[4] Ryan Maloney, “LGBT Canadians Purged From Military And Public Service Await Overdue Apology”, The Huffington Post (17 September 2017), available online: <http://www.huffingtonpost.ca/2017/09/17/lgbt-canadians-purged-from-military-and-public-service-await-overdue-apology_a_23206155/>.

[5] Canada, Commission of Inquiry on the Blood System in Canada (Krever Commission), Commission of Inquiry on the Blood System in Canada: Final Report(Ottawa: Public Works and Government Services Canada, 1997) vol 1-4, available online: Library and Archives Canada  <http://epe.lac-bac.gc.ca/100/200/301/hcan-scan/commission_blood_final_rep-e/index.html>.

[6] Killough v Canadian Red Cross Society, 1998 CarswellBC 2869, [1998] B.C.J. No. 3019; Adrian v Canada (Minister of Health, 2007 ABQB 376; McCarthy v. Canadian Red Cross Society, 98-CV-143334; Desjardins c. Canada (Procureur général), 2007 QCCS 2797.

[7] Companies’ Creditors Arrangement Act, R.S.C., 1985, c C-36.

[8] See M. Burgi and D. Wolff, “Rehabilitation of homosexual men convicted pursuant to Section 175 of the German Criminal Code: mandate, options and constitutional framework, (Rehabilitierung der nach § 175 StGB verurteilten homosexuellen Männer)” (Germany, Federal Anti-Discrimination Agency, May 2016), available online: <http://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/EN/publikationen/Burgi-175-English.pdf;jsessionid=F12F35C084D3D9572B71797A25592053.2_cid322?__blob=publicationFile&v=3>  [Burgi and Wolff]

[9] Health Minister Allan Rock, 1997

[10] PM Stephen Harper, 2008

[11] Manitoba Premier Greg Seilinger 2015; Canadian Crown-Indigenous Relations Minister Carolyn Bennett 2017

[12] PM Stephen Harper, 2006

[13] PM Brian Mulroney, 1998

[14] PM Justin Trudeau, 2016

[15] “Ex gratia” payments are payments made from a sense of moral obligation rather than because of any legal requirement.

[16] Apology Act, S.O. 2009, c 3.

[17] Ontario, The Elliot Lake Inquiry, Report of Elliot Lake Inquiry Released on October 15, 2014 (Ontario: ServiceOntario Publications, 2014) available online: <https://www.attorneygeneral.jus.gov.on.ca/inquiries/elliotlake/index.html>.

[18] Benjamin Ho & Elaine Liu, “Does sorry work? The impact of apology laws on medical malpractice” (2011) 43: 141 Journal of Risk and Uncertainty, DOI: <https://doi.org/10.1007/s11166-011-9126-0>.

[19] Craig W. Blatz, Karina Schumann & Michael Ross, “Government Apologies for Historical Injustices” (2009) 30: 2 Political Psychology at 219 [Blatz et al.].

[20] Id.

[21] Jim Bronskill, “Apologize to purged gays, study says”, The Kingston-Whig-Standard (9 March 1998) at 14.

[22] We Demand an Apology Network, The We Demand an Apology Network submission on the urgent need for an official state apology and redress for those affected by the anti-gay/anti-lesbian purges in the public service and the military (June 2, 2017), available online:  <www.etfo.ca/BuildingAJustSociety/WorldIssues/WeDemandApologyNetworkDocuments/WeDemandApology.rtf> [Kinsman].

[23] Egale Canada Human Rights Trust, The Just Society Report, Grossly Indecent (June 6, 2016) available online:  <https://egale.ca/wp-content/uploads/2016/06/FINAL_REPORT_EGALE.pdf>.

[24] The time period known as when Europeans first made contact with Canada’s Indigenous population.

[25] Criminal Code, R.S.C. 1985, c C-46 s 159.

[26] See generally <http://www.supportbrent.ca>.

[27] Klippert v. The Queen, [1967] SCR 822.

[28] Kinsman, supra note 23.

[29] An Act Respecting Immigration, 1952. Ottawa: SC 1 Elizabeth II, Chapter 42, Library and Archives Canada, Statutes of Canada, available online: Canadian Museum of Immigration at Pier 21 <http://www.pier21.ca/research/immigration-history/immigration-act-1952>.

[30] Burgi and  Wolff, supra note 9.

[31] <https://www.theguardian.com/world/2016/may/24/unimaginably-wrong-victorias-gay-conviction-apology-speech-in-full>.

[32] Canada, Department of Justice, Bill C-32: An Act related to the repeal of section 159 of the Criminal Code, available online (Last update: 15 December 2016): <http://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/cs_s159-ec_s159.html>.

[33] Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120.

[34] Canada (Attorney General) v. Hislop, [2007] 1 SCR 429.

[35] John, supra note 3.