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Yukon ombudsman calls for apology legislation

Someone wronged by a person or an institution often seeks the word “sorry” above everything else.

Someone wronged by a person or an institution often seeks the word “sorry” above everything else.

Hank Moorlag has worked in that maxim’s shadow for 10 years.

As the Yukon’s first ombudsman and privacy commissioner prepares to retire, he is calling on the Yukon government to pass apology legislation, enshrining the aphorism in law.

“Government officials will go to any length to figure out how to fix a mistake rather than admitting that they’ve made one,” said Moorlag recently. “Sometimes fairness means having to say you’re sorry.”

Human nature dictates people try to fix their faults rather than taking ownership for them. A fixed problem doesn’t substitute for an apology and often leaves a person who feels wronged unsatisfied, or even embittered, said Moorlag.

But saying “sorry” isn’t simple because the word itself makes lawyers salivate.

The recent settlement between Canada and Syrian-Canadian Maher Arar — who spent more than a year being tortured in a Syrian prison as an indirect result of flawed terrorism intelligence given to the United States by the RCMP — illustrates the roadblock people in large organizations face for saying sorry.

Prime Minister Stephen Harper apologized to Arar on behalf of the Canadian government only after the two sides announced they had reached a $12-million settlement.

Had Harper said “sorry” before the legal dots were inked, his apology could have been used as an admittance of guilt in a costly lawsuit.

The apology legislation suggested by Moorlag fixes that.

It bars apologies from being used in court, which in turn frees governments to make more apologies.

Moorlag has watched with optimism as Australia, California and most recently, British Columbia, have passed the radical legislation.

He finds BC’s experience instructive for the Yukon, he said.

“It’s remarkable how that has changed things for people. I heard on the radio — and I can’t remember the numbers — but I thought they were very positive,” he said.

“There were many more of these apologies than I would have expected.”

“I think it would be a great thing for the Yukon to adopt as well,” said Moorlag.

 “It frees people to make, in addition to an expression of regret — which is not actually an apology — a genuine apology for an error that’s been made.”

British Columbia passed apology legislation in May, the first Canadian province to do so.

Officials in the province’s ombudsman’s office recognized that several cases over the past few years could have been more easily settled had an apology been made, explained the office’s director of investigations, Bruce Ronayne.

The department wrote a research paper on the need for apologies that created a ripple through the ombudsman community.

“We found there’s a reluctance to make an apology, particularly in government, because it could be an admission of liability and guilt,” said Ronayne in an interview from Victoria.

Several cases including the Sons of Dukhobor settlement and cases of abuse of deaf children clearly needed more than expressions of regret from the government, he said.

“Some people still didn’t think it was an apology,” said Ronayne of the expressions of regret the BC government made in both cases.

“In those kinds of cases, we recommended that an apology be made.”

The office examined legislation in Australia that prevented apologies from being used in court. “We thought well, if that was in place in British Columbia, that would certainly increase apologies,” said Ronayne.

But it’s still early days for the law. While the legislation has attracted plenty of attention from provinces across Canada, its impacts are still not clear, said Ronayne.

“We haven’t had any situations where we’ve had to say, ‘An apology should be provided here (since the law came into force),” said Ronayne.

Moorlag has been the Yukon’s ombudsman and privacy commissioner since 1997. His second five-year term expires in early April and he has chosen not to seek a third.

The 61-year-old former RCMP officer, who worked in the northern communities of Grise Fiord, Cambridge Bay and Yellowknife, has found the job rewarding, and believes he is leaving the office in good shape.

“I have some mixed feelings; I have some successes, I think, that I’m really happy about,” said Moorlag, who has called the Yukon home since 1992.

“I’ve been asked before if I’m leaving out of frustration and that’s simply not the case.

“It took five years to actually set up the office, to work out the wrinkles, to make sure it was working well,” he said.

“I’m ready to move on.”