The sacramental seal of confession from the Canadian civil law perspective

Abstract

In light of current legal developments, there is a need to analyze the interface between canon law and civil law with respect to the seal of confession. This study integrates the theology, history, canon law, and civil law in order to ascertain the status of the seal of confession as a privileged communication in the law of evidence and whether it is subject to disclosure in court. The ethical basis may be founded on the exhortation to cover sin which appears in Scripture and patristic writings. After public confession fell into disuse, this ethic later crystallized into a rule, first of local application, then of universal application by the fifth century. By the thirteenth century, the Fourth Lateran Council affirmed its universal application and attached severe penalties to violations. Throughout history, there has been always been an interaction between the canon law and civil law. First, the civil law seems to have reinforced the rule of secrecy. Later, when the Church became established, civil legislation appeared enforcing the rule of secrecy, or alternatively recognizing the canon law. With the Reformation, civil legislation and case law appeared threatening the integrity of the seal of confession, and the Church responded with reaffirmations and legislation forbidding the breach of the of confession. The reason that the Church insists so strongly that the rule be upheld is that it is based on natural law, divine law, and positive law. It is critical that these three elements be clearly established and delineated in order to defend the rule concerning the seal of confession. The civil law of evidence has not received the seal of confession uniformly as a privileged communication. In England, the privilege was denied, whereas in Ireland and the United States the privilege was upheld. The Commonwealth countries of Australia and New Zealand have adopted the rule in certain states but not in others. The Canadian legal system is an offshoot of the English system. As a result, the English law was followed on the priest-penitent privilege, with the exception of provincial legislation in Quebec and Newfoundland. However, in 1991, the Supreme Court implemented the ad hoc use of the Wigmore criteria, a set of four evidentiary tests which is used to adjudicate claims of privilege with respect to confidential communications. With this, the question as to whether confessional communications were privileged communications within the law of evidence was reopened. The issue of whether the Catholic canon law in c. 983 CIC/1983 and c. 733 CCEO on the seal is sufficient to satisfy a claim of privilege has not yet been adjudicated, but it appears to satisfy the Wigmore criteria. The obligation of secrecy may conflict with the statutory reporting requirements for incidents of child abuse and communicable diseases. However, confessional secrecy may be a legitimate exercise in religious freedom due to the confessor being in a strong position to counsel a penitent to turn him or her self in to authorities and cease the behaviour, and thereby serves a public safety function. In any event, the Church has stated in no uncertain terms that where there is a conflict between the divine law and the civil law, the divine law is always to be followed.