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«48th Annual Convention CCLS (2013) 48e Congrès annuel SCDC (2013) PUBLIC JURIDIC PERSONS: CANONICAL THEORY IN ACTION Bonnie MacLellan CSJ Executive ...»

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48th Annual Convention CCLS (2013)

48e Congrès annuel SCDC (2013)

PUBLIC JURIDIC PERSONS:

CANONICAL THEORY IN ACTION

Bonnie MacLellan CSJ

Executive Director, Center for Canonical Services

Introduction

The application of canonical theory related to the notion of sponsorship as

it relates to the apostolate of Catholic health care in Canada, has evolved significantly over the past 20 years. The purpose of this paper is to offer a description of this evolution with particular application to the Catholic Health Sponsors of Ontario, Canada. While the 1983 Code of Canon Law outlines clear requirements, obligations and rights associated with the concept of sponsorship as it relates to specific sacraments e.g., baptism (cann. 851, 872and confirmation (cann. 892-895), there are no canonical definitions, rights or obligations directly identified in the Code for sponsors of apostolic works. The paper, therefore, will rely on the norm of canon 19, ‘If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case … must be resolved in light of laws issued in similar matters, general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons.’1 As Fr. Francis Morrisey recommended, ‘Sponsorship … must have a solid doctrinal and canonical basis for it to be and to remain an integral part of the Church’s mission.’2 Both the doctrinal roots of the 1 Codex iuris canonici auctoritate Ioannis Pauli PP II promulgatus fontium annotatione et indice analyticoalphabetico auctus, Libreria editrice Vaticana, 1989, English translation in Code of Canon Law: Latin-English Edition, New English Translation, prepared under the auspices of the CLSA (Washington: CLSA, 1999). This translation is used for all subsequent citations of canons from the Code of Canon Law.

2 F.G. Morrisey, ‘The Church as Communion, Focused on Ministry, Part II,’ in Canon Law/ Sponsorship Institute (Dallas, TX: CHA, 2005) 1.

notion of sponsorship, which can be found in the documents of Vatican II and a growing body of practical experience of sponsorship of apostolates in the Church as it has evolved over the past twenty years, will serve as sources of this presentation.

The presentation is divided into four parts.

Sponsorship of apostolates and its juridic meaning

From canonical concept to juridic reality:

The gestation and birth of Catholic Health Sponsors of Ontario PJP advantages and recommendations Conclusions

1. Sponsorship of Apostolates

1.1 The Notion of Sponsorship and Its Juridic Meaning The symbiotic relationship between the notion of sponsorship and the apostolate is ‘born from the heart of the Church,’3 and shares the Church’s three-fold mission of teaching, sanctifying, and governing.4 To speak of sponsorship specifically as it relates to the apostolate of Catholic health care including its juridic meaning requires a preliminary discussion referencing the call of all followers of Jesus. Jesus sent his disciples ‘ahead of him in pairs to every town and place he intended to visit’5 to cure the sick and announce the nearness of God’s reign.6 The historical form of healing was sacramental, and included a call to ‘conversion, an expression of hospitality, and service to the community.’7 The theme of healing taking place within the context of community was acclaimed in Gaudium et spes,8 noting that every person is called to community with God through a relationship with the larger community.

3 John Paul II, apostolic constitution Ex corde Ecclesiae, AAS 82 (1990) 1475-1509, English translation in Origins 20 (1990) 273.

4 See F. Morrisey, ‘Toward Juridic Personality,’ Health Progress 82 (2001) 27.

5 Lk 10:1.

6 See Lk 10:9.

7 D. Brodeur, ‘Catholic Health Care: Rationale for Ministry,’ in Christian Bioethics 5 (1999) 7.

8 See GS 12.

While Jesus’ disciples proclaimed the kingdom of God, what have evolved are institutional apostolates.9 The term ‘sponsorship’ in relation to the apostolate, entered into canonical vocabulary approximately 25 years ago. While the 1983 Code of Canon Law outlines clear requirements, obligations and rights related to the concept of sponsorship as it relates to specific sacraments e.g., baptism (cann.

851, 872-874) and confirmation (cann. 892-895), there are no canonical definitions, rights or obligations directly identified in the Code for sponsors of apostolic works. Since the concept of sponsorship of apostolates is not directly addressed in the Code, the question that must be asked is, ‘What is the inherent juridic meaning of sponsorship as it relates to sponsored Catholic

healthcare organizations?’ McGowan offers this definition:

It is any institution (hospital, hospice, hostel, nursing home, residence, or similar service), sponsored by a diocese, parish, religious institute, juridic person or an association of Christ’s faithful, which carries out the ministry of Catholic healthcare as part of the mission of the Catholic Church, and in conformity with canon law; or any such body which is deemed by the competent authority, to be conducting the ministry in accordance with the teachings of the Catholic Church.10 While canonists are well versed in the canonical theory of juridic persons, a short review of unique distinctions will assist us in determining which type of juridic person could best ensure a specific apostolate is accomplished in the name of the Church. Although juridic persons are distinguished as private and public and share some similarities, significant hallmarks distinguish important juridic differences related to foundation, mission, purpose, control of temporal goods and accountability structures.11 9 See J.P. Beal, ‘From the Heart of the Church to the Heart of the World: Ownership, Control and Catholic Identity of Institutional Apostolates in the United States,’ in Sponsorship in the United States Context:Theory and Praxis, ed. R. Smith, W. Brown – N. Reynolds (Alexandria, VA: CLSA, 2006) 31.





10 M. Mcgowan, Sponsorship of Catholic Health Care Organizations (Ottawa: Catholic Health Association of Canada, 2005) 2.

11 See F. Morrisey, ‘Public Juridic Persons in the Church and the Sponsorship of Charitable Works,’ in Public Juridic Persons in the Church, ed. M. Cleary (Marsfield: Governance & Management Pty Ltd, 2009) 18-25.

Private juridic persons, whose genesis is often found in a private association of the faithful (c. 298), are constituted only by special decree of the competent authority for a particular work deemed compatible with the Church’s mission.12 The work of such groups of Catholics, while supporting the Church’s mission, is accomplished without a delegated mission or mandate from the Church to the group. Statutes approved by the competent authority define juridic relationships and accountabilities, including the private juridic person’s mission, governance structures, reporting requirements and criteria for extinction. Composition of the private juridic person, including the number of persons required for initial and ongoing ministry and accountability for temporal goods, are also defined in the statutes. This is particularly important, as temporal goods of private juridic persons are not considered ecclesiastical property (c. 1257 §2). These assets are owned by the private juridic person whose statutes govern limitations on accrual, use, and disposition upon dissolution of the private juridic person.

Public juridic persons can be constituted by law or decree of the competent authority (c. 116 §2). Unless defined as public juridic persons in law (as, for instance, seminaries [c. 238], parishes [c. 515 §3], religious institutes [c. 634]), statutes describe the composition, mission, purpose, governance and accountability structures of public juridic persons within the Church. Engaging in apostolic works on behalf of (in the name of) the Church, they also function within the norms of universal Church law and within the parameters of approved statutes (c. 117). The goal of the public juridic person is to support the realization of the Church’s mission to bring about the Kingdom of God through enhancement of the common good (can.

116). Table 1 offers a brief overview of distinctions between public and private juridic persons (see Table 1).

While responsible for mission operationalization and realization, some powers/controls may be ‘reserved’ to another authority; e.g.,‘diocesan bishop or major superior of the original sponsoring organization’13 (see Table 2).

12 See Morrisey, ‘Public Juridic Persons in the Church and the Sponsorship of Charitable Works,’

18. Examples of private juridic persons include St Vincent de Paul Society or Knights of Columbus.

13 Morrisey, ‘Public Juridic Persons in the Church and the Sponsorship of Charitable Works,’ 18-25.

1.2 Accountability to Ecclesiastical and Secular Authorities The Code points out that public juridic persons have both rights and obligations (can. 113 §2).14 Public juridic persons have both ecclesiastical and secular authorities who demand accountability. While the Church would consider civil law as subordinate to Church law,15 accountability frameworks for both ecclesiastical and secular authorities are essential to ensure transparency, order, and realization of the Church’s mission within a social context. In addition, the designation of the Church generally, and public juridic persons specifically, as registered charities within the civil domain, compounds opportunities and accountability requirements.16 All public juridic persons have canonical accountability requirements that are defined by the competent authority who has granted juridic personality, be they juridic persons of pontifical or diocesan right.

Accountability requirements are enshrined in canonical statutes and civil by-laws. Traditionally, the authority competent to grant juridic personality also approves the public juridic person’s statutes and authorizes alienation of goods. For apostolates of religious institutes of pontifical right, the Holy See, specifically the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (CICLSAL)17 has exercised this function. Designation as pontifical public juridic persons (including Catholic charities)18 brings with it an inherent accountability to the Holy See. Although no canons identify specific reporting structures to fulfil this responsibility, by analogy, these conditions can be inferred in can. 816 §2. Reports to the Holy See will typically include those areas identified in approved canonical statutes (see Table 3).

14 See J.A. Alesandro, ‘The Code of Canon Law: Twenty-Five Years Later,’ New Theology Review, vol. 21, no. 2 (2008) 8.

15 See ibid., 12.

16 See Canada Revenue Agency, Policy Statement, Reference Number CPS-022 (2 September 2003), http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cps/cps-022-eng.html, (12 January 2013).

17 See Hite – Holland – Morrisey, Understanding Public Juridic Persons, 68.

18 See Benedict XVI, Apostolic letter Intima ecclesiae natura on the service of charity, 11 November 2012, L’Osservatore Romano, Italian ed., 1 December 2012, English translation in Origins, 42 (2012-2013) 441Bishops exercise authority over ministries identified as Catholic in their dioceses (can. 394). While the supreme moderators of religious institutes maintain authority for apostolic works of their congregations (can. 622), each institute remains faithful and accountable to both the diocesan bishop (cann.

738 §3, 790 §1) and in accordance with the law, to the Holy See (can. 589).

Moreover, public juridic persons maintain a close affinity and accountability mechanism with the founding congregation(s). The extent of this relationship is determined in the statutes of the public juridic person.

In addition to canonical accountabilities, juridic persons are also subject to civil legislation, especially those that receive public funding for Church ministries.19 In Canada, public juridic persons that have assumed sponsorship of health care ministries ordinarily make applications for corporate status under the Canada Not-for-Profit Corporations Act, and assume responsibility for fulfilling their reporting criteria.20 In addition, in Ontario the provincial Ministry of Health and Long Term Care legislates civil requirements for individuals or groups who are licensed to provide hospital-based or longterm care within the province.21 Administrative policies and procedures internal to each organization are added to the cadre of responsibilities for those who assume responsibility for health care ministry. Failure to comply with canonical or civil regulations could result in penalties up to loss of canonical and/or civil status. It is noted with interest that some canonical accountability criteria parallel civil ones (see Figure 1). This framework of canonical and civil obligations and accountabilities prepares the way for examination of ‘theory in practice’22 which will be evidenced in the development and work of the Catholic Health Sponsors of Ontario.

19 See D. Foster, ‘Religious Conscience and Secular Rules,’ in National Review Online, 1 February 2012, http://www.nationalreview.com/corner/289898/religious-conscience-and-secular-rules-danielfoster (4 February 2012).

20 See Government of Canada, New Legislation, Canada Not-For-Profit Corporations Act, 13 October 2011, http://www.ic.gc.ca/eic/site/cd-dgc.nsf/eng/cs04956.html (20 January 2013).

21 See Government of Ontario, Public Hospitals Act, O. Reg. 216/11, e-laws, 1 July 2012, http://www.health.gov.on.ca/en/public/programs/ohip/ (21 March 2013).

22 See C.O. Scharmer, Theory U: Leading from the Future as It Emerges:The Social Technology of Presencing (San Francisco: Berrett-Koehler, 2009) 227-228.

2 ‘Catholic Health Sponsors of Ontario’ (CHSO) as a Pontifical Juridic Person Canonical Theory in Action

2.1 The Decision to Transfer Sponsorship: A Journey vs. a Point in History



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