6 of the Council of Trent states that – ‘If any one saith, that it is not in man’s power to
make his ways evil, but that the works that are evil God worketh as well as
those that are good, not permissively only, but properly, and of Himself, in
such wise that the treason of Judas is no less His own proper work than the
vocation of Paul; let him be anathema.’
What Does Canon Law Have to Do with Canadian Law?
the world, the Catholic Church has been embroiled in a sexual abuse crisis that
has seen legislators, politicians and sexual abuse advocates challenging the
legitimacy of the Catholic Church’s claim that statements made in confession
are confidential. This so-called seal of
confessional secrecy, according
to the Church, is the absolute
duty of priests not to disclose anything that is said to them during
a recent 2019
publication, Pope Francis maintained
that any political or legislative pressure to override the sacramental seal
would be “an unacceptable offense” against the Church’s freedom which comes
from God and not human institutions, and would be “a violation of religious
freedom”. The Pope claims that no court
has jurisdiction to break the confidentiality of the seal of confession.
sacramental seal is indispensable and no human power has jurisdiction, nor can
it claim it, on it “
this year the Pope wrote that confession:
“…is one of the many gifts that
Christ’s preferential love holds for us – as confessors we have the privilege
of continually contemplating the “miracles” of conversions, changing a far-fled
sinner into a repentant son who returns to his father’s house.”
Vatican’s Position Conflicts with Canadian Law
province and territory in Canada have laws that require persons who are aware
of suspected child abuse to report their concerns to the appropriate
authorities. For example, in Nova Scotia, the Children
and Family Services Act (CFSA)
states that every person in the province of Nova Scotia has a legal
obligation to report concerns of abuse or neglect of a child under the age of
19 in order to ensure that all children are protected from harm. The failure to
report is considered a criminal offence.
are two Canadian provinces (Newfoundland under its Evidence
Act and Quebec under its Charter
of Human Rights and Freedoms),
that respect and recognize the privilege of religious communication. However,
this confidentiality directly conflicts with the obligation we all have to
protect children by reporting child abuse.
Popes instructions to Canadian priests to safe guard the seal of confession is,
in effect, an order to ignore the reporting requirements of Canadian law designed
to protect children from abuse.
a claim to the confessional seal of secrecy may create a potential obstruction
of justice in cases where survivors of sexual abuse come forward after years of
silently dealing with psychological and physiological consequences of past
to Canada’s multiculturalism, the Supreme Court of Canada has previously found
that religious communication should not be accorded absolute protection and
privilege. These types of privileges are assessed on a case-by-case
The “Wigmore Criteria”
Courts use the “Wigmore Criteria” to determine whether a statement, including religious
communications, may be privileged. The “Wigmore Criteria” are informed by the Canadian
Charter of Rights and Freedoms
whose guiding principle is to be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadians. In the
“Wigmore Criteria” the factors considered are that:
communications must originate in a confidence that they will not be disclosed.
- This element of
confidentiality must be essential to the full and satisfactory maintenance of
the relation between the parties.
- The relation must
be one which in the opinion of the community ought to be sedulously fostered.
- The injury that
would inure to the relation by the disclosure of the communication must be
greater than the benefit thereby gained for the correct disposal of litigation.
the pivotal 1991 case of R
v Gruenke, Adele, a
22-year old reflexologist received a loan from Barnett, an 82-year old man whom
she had lived with in a platonic relationship. Barnett had even put her as a
beneficiary in his will until he began to make advances to her. At which point,
she decided to move into her mother’s home. As the advances became more
aggressive, Adele and her boyfriend made plans to kill Barnett, until one night
she and her boyfriend beat Barnett to death.
decided to speak to a pastor and counselor about her involvement in the murder.
At the trial, the pastor and the counselor’s disclosures of the conversation
were admitted by the Court and used to convict Adele of first-degree murder
because the conversations did not satisfy the requirements of privilege under
the Wigmore test.
Is the Seal of Confession More Important than Protecting
Children from Sexual Abuse?
I think that the Catholic Churches claim to
secrecy for statements made in confession about child sexual abuse fails to
meet the fourth criteria of the Wigmore test.
the “injury” to the relationship between a priest and the person who has
confessed to knowledge of child abuse greater than the benefit gained by
potentially protecting children from sexual abuse? Would any reasonable person ever argue that
it is better to allow children to be abused that to break the seal of
confession? Apparently that is exactly what the Pope is telling Priests,
Catholics and everyone else around the world.
Contact a Trusted Sexual Abuse Lawyer
there is no longer a limitation period for sexual abuse claims in Nova Scotia, sexual
misconduct cases can be
very challenging for victims to navigate, particularly where information
regarding the incident(s) abuse is hidden or not easily attainable. For this
reason, it is critical that you get legal
guidance immediately from an experienced
sexual abuse claims lawyer.
McKiggan Hebert, we have received national recognition for our advocacy for
sexual abuse survivors. If you are a
recent victim of sexual misconduct or abuse, or a survivor of historical abuse and
have decided to come forward and exercise your right to justice, contact us at (902)
423-2050 or fill out our online form for assistance.