General Synod has referred to the Council of General Synod (CoGS) a resolution which would significantly curtail the circumstances under which the leaders of General Synod are able to make use of non-disclosure or non-disparagement agreements (NDAs) in cases of various kinds of misconduct. The resolution, moved by Canon Jeffrey Metcalfe of the diocese of Quebec, was complicated, said Chancellor of General Synod Canon (lay) Clare Burns, by several legal and insurance-related issues it raised as a result of the way the resolution was framed and phrased, though there was not necessarily, she said, a problem with the spirit in which it was meant.
Metcalfe has written for the Journal before on the topic of NDAs. In his introductory speech to General Synod, he reminded the assembly of Jesus’ description of his ministry as proclaiming release to captives and letting the oppressed go free. Using NDAs to bind complainants to silence “experiences of sexual misconduct or abuse, use, assault, exploitation, or harassment within our institutions” contradicted this mandate, he said. He added that he felt their use by the church had driven it to a “moral and theological crisis.”
“When used wrongly, they can become secret settlement contracts used to buy the silence of a victim or a whistleblower,” he said. “While there may be limited and appropriate uses of confidentiality, the misuse of NDAs to silence victims or to shield wrongdoing contradicts the gospel.”
The resolution prevents the primate and the national church’s officers from executing an NDA unless the complainant requests it having had the benefit of independent legal advice; the agreement was for a limited time; and the agreement did not prevent them from communicating to what the motion refers to as their “support team,” including law enforcement, health professionals, religious or other counselors and investigators working on their behalf. Other clauses ask the church to contact and offer to provide the support of some of those “support team” services to any signatories to previous NDAs, ask the primate and officers of General Synod to report publicly the number of NDAs entered into since 2000, and ask General Synod to encourage other levels of church government to adopt similar policies.
Burns moved a motion that General Synod enter committee of the whole, a mode of discussion with fewer time and process restrictions than the assembly’s normal rules of order. After General Synod approved this motion, Burns said she had significant experience working with victims of sexual abuse—often children—in her capacity as the children’s lawyer for the province of Ontario. As such, she said, she took the matter extremely seriously. That said, she added, she had concerns about what would happen if General Synod passed the resolution as written. Among the list of objections she presented to General Synod: If the church contacted previous complainants (assuming it was even possible for it to do so) and, by letting them know additional supports are available, implied it had not done enough in previous cases, Burns said, the church could be breaching any NDA it had already signed. Further, she said, “if we advertise the availability of the kinds of supports described, then our insurers are going to tell us we’re not insured for whatever happens next. Because when settlements are negotiated with victims of sexual abuse, part of what gets negotiated is their supports going forward,” she said.
“It’s tantamount to saying that somehow we think more than what we’ve already done is needed. Our insurers are not going to let us do that. Or what they’re going to say to us is if you do it, you are not insured for whatever happens next.”
As phrased, she said, the motion contained several clauses which could place the church in breach of contract or could cause its insurers to declare it not covered in the event of a claim made against the church. Other clauses, she said, were not clearly defined enough to be complied with or depended on information covered by attorney-client privilege.
She also told General Synod that while she fully acknowledged there were cases in which people had gone through terrible experiences at the hands of the church, it was also true that others had made terrible, unsupported accusations against laity, clergy and bishops. That could only be stopped with a non-disparagement clause, allowing the church to take them to court if they continued, she said. “If Synod passes the resolution as it is currently drafted, you are putting an end to the possibility of us protecting each and every person in this room and each and every member of the church in Canada from specious allegations,” she said.
Later in the session, Burns added that the church had not, to her knowledge, asked anyone to sign an NDA in connection with an incident of sexual misconduct in either her time as chancellor or vice-chancellor; her predecessor, Canon (lay) David Jones, she said, said this was true of his time as General Synod chancellor also. Jones served as chancellor of General Synod from 2010 to 2023.
During the discussion on this issue, Finn Keesmaat-Walsh, member from the diocese of Toronto, who uses they/them pronouns, said they had been in touch with a woman who had been a victim of abuse by a senior leader of the church, in an incident the church had acknowledged and who had told them she had been asked to sign an NDA in 2022.
Burns replied saying she was not aware of any NDA being signed under the purview of General Synod in 2022, though she could not speak for dioceses or ecclesiastical provinces.
Following the committee of the whole discussion, the Rev. Jordan Haynie Ware, of the diocese of Edmonton, moved that the resolution be referred to CoGS as it was clear that more information would be needed to render an informed decision.
The motion to refer the resolution for priority review at CoGS passed 196 to 12.
Correction: This article has been updated to reflect that the resolution moved by Metcalfe addressed NDAs in cases of misconduct including but not limited to sexual misconduct and to correct the spelling of Finn Keesmaat-Walsh’s name.
