The House of Commons Justice and Human Rights Committee Examines Elder Abuse

The House of Commons Justice and Human Rights Committee Examines Elder Abuse

June 2, 2021

BY Monika Steger

Introduction

The House of Commons Standing Committee on Justice and Human Rights (“JUST”) reports on and reviews different policies, programs, and other plans for the House of Commons. The committee has completed a wide range of work, including examining the impact of COVID-19 on the judicial system and considering how the pandemic has increased intimate partner violence. Much of the committee’s work concerns criminal law reform. Currently, the committee is conducting a Study of Elder Abuse. While elder abuse has been a long-standing issue within Canada, this study is particularly pertinent in light of the long-term care crisis during COVID-19. In this blog post we review issues discussed at the Committee’s meetings and summarize CCEL’s submission to the Committee.

Meetings and Witnesses

The JUST Committee has held four meetings for its Study of Elder Abuse in order to identify key issues and hear from witnesses who are experts in this field. Throughout these meetings three main themes arose out of the presentations and question periods:

1. Potential amendments to the Canadian Criminal Code;
2. Differences between institutional elder abuse and intimate family elder abuse, and how COVID-19 has exacerbated or changed these types of elder abuse; and
3. Lack of data and definitions for elder abuse exists within Canada.

A list of witnesses who appeared before the Committee can be found on their webpage.

Criminal Code Amendments

There were largely two opinions regarding Criminal Code amendments: some witnesses expressed the view that that the current age-neutral provisions, like assault or fraud, were largely adequate; others believed that Criminal Code reform was required in order support better prosecution of elder abuse.

During the first JUST meeting Graham Webb from the Advocacy Centre for the Elderly suggested adding a new criminal provision entitled “Criminal Endangerment.” The purpose of the provision would be to enhance capacity to hold institutions liable for abuse and neglect.  The provision would apply where an individual or organization entered a contract to care for an individual. Following this contract, if the individual or organization failed to provide proper care and put the individual at risk then they could be charged under the proposed “Criminal Endangerment” provision. This suggestion gained support from witnesses and committee members alike. Melissa Miller from Howie Sacks & Henry LLP also voiced support for Criminal Code amendments in order to hold those with power in long-term care homes more accountable.

Laura Tamblyn Watts from Can Age added that there ought to be amendments to support better charging for forms of elder abuse that do not fall squarely within existing Criminal Code provisions. She drew the committee’s attention to its previous consideration of Controlling or Coercive Conduct within Intimate Relationships and recommended modification of the proposed Criminal Code provision in order to capture elder abuse and neglect.

Another topic that arose out of the meetings was the idea of whistle-blower protection. This subject was discussed in relation to older adults living in care homes, and their family members, who may fear retaliation if they report abuse. This protection would also be crucial for nurses or other health care staff who may also fear speaking up when they see abuse occur in institutional settings. The Canadian Nurses Association  and the Canadian Support Workers Association jointly presented on how more robust regulations and protections are needed for support workers in order to better promote safety in long-term care homes.

Institutional vs Family Violence

The Canadian Centre for Elder Law (CCEL) noted that inter-personal or family violence may not always be well-suited to a criminal justice response. Older adults often do not report abuse because they do not want their family members to go to jail. They just want the abuse to stop. Other witnesses echoed this sentiment.

Older adults who face family violence have also been impacted by COVID-19. Representatives from the Pak Pioneers Community Organization of Canada and the Canadian Indigenous Nurses Association voiced how the pandemic has also negatively influenced family perpetrated elder abuse rates due to the isolation older adults face at home.

Other organizations like the Canadian Bar Association Elder Law and Criminal Justice sections, and CanAge suggested a national or pan-Canadian Elder Abuse Strategy. Similarly, Réseau FADOQ, Seniors First BC, the CCEL, and others stated that better education is needed for police, employees, and Crown Counsel.

Lack of Data and Definitions

A problem that many witnesses flagged was the lack of elder abuse data for Canada. This gap causes problems when considering how to allocate federal funding, resources, and efforts. The Department of Justice Canada stated that they are working with Statistics Canada to create a report that will address national data gaps. Statistics Canada also informed the Committee that targeted research based on ethnicity, age, and income is being conducted. We can anticipate disaggregated elder abuse data to form part of subsequent Statistics Canada reports on elder abuse.

The Committee was very interested in witnesses’ thoughts on whether elder abuse definitions were needed. The Canadian Network for the Prevention of Elder Abuse confirmed the need for definitions of elder abuse. The CBA Elder Law, and others, agreed that national direction, education, and guidelines from the federal government would allow for a more uniform approach from police and other community members. The Committee considered an earlier CCEL study paper on Legal Definitions of Elder Abuse and Neglect that was funded by the Department of Justice in 2009.

CCEL Submissions

The CCEL’s submissions to the JUST committee introduced and added to the main themes of the meetings. CCEL’s key points addressed:

1. Criminal law reform;
2. Infrastructural investments required to support criminal law reform; and
3. Related critical prevention and response issues within the federal government’s jurisdiction.

Criminal Law Reform

CCEL discussed the different types of elder abuse and how one singular criminal law reform effort will be inadequate to address all types of elder abuse. CCEL has had the opportunity to present twice to the Standing Committee on the Status of Women (“FEWO”) regarding abuse of older women. CCEL’s submissions were informed by the work we did for Atira Women’s Resource Society in developing the report Promising Practices in Housing Women who are Older and Fleeing Violence or Abuse. This report noted that older women may want to preserve important family relationships above all else.

CCEL pointed out that criminal law reform would likely be more effective when dealing with elder abuse perpetrated by professionals, con artists, and institutions. Despite already existing age-neutral provisions in the Criminal Code, reporting rates for elder abuse are low. This could be influenced by:

1. Older adults or employees fearing retribution or retaliation if they report abuse in long-term care homes;
2. Current provisions placing blame on employees rather than owners of institutions; and
3. Lack of education for police and long-term care home employees about recognizing and addressing elder abuse.[1]

Similarly, the low reporting rates could also reflect that elder abuse does not often reach the threshold to be deemed a “violent crime”, as it is often continuous acts rather than one instance of assault.[2]

CCEL focused on the importance of legal research when drafting amendments as research would allow Canada to learn from the mistakes and victories of others. In the United States, some states have criminalized elder abuse through age-specific criminal provisions. Conducting comparative research of United States’ legislation will be crucial in creating effective amendments. CCEL recommended:

Recommendation 1: The Government of Canada fund comparative legal research to inform criminal law reform in Canada to address elder abuse.

Infrastructural Investments Required

CCEL further discussed the importance of comparative research, specifically in the United States, through analyzing the US Federal Elder Justice Act, which is the primary source of federal law that governs elder abuse in the United States. The Elder Justice Act recognizes the importance of creating national bodies and programs to support the prevention of elder abuse. Similar legislation would be beneficial within Canada in order to develop an effective system to support prosecution of elder abuse.

CCEL pointed to the need for education and support for police and Crown Counsel to better address elder abuse because “[police] officers often fail to see a crime in elder abuse.”[3] More education, or even specialized elder abuse police units, could increase conviction rates. CCEL recommended:

Recommendation 2: The Government of Canada fund robust police training regarding elder abuse and neglect response.

Recommendation 3: The Government of Canada fund the RCMP to provide outreach to older adults who may have experienced abuse or neglect, or are at risk of abuse or neglect, in communities across Canada.

It is also crucial for Crown Counsel to receive more information on how to assist older victims throughout the court process. Each province and territory has their own Crown Counsel policies that are used throughout trials and other criminal procedures. However, none of the provinces or territories have policies that apply specifically to capacity issues, like dementia, in older adults. Consistent and clear Crown Counsel policy is required in order for Criminal Code provisions to be impactful. CCEL recommended:

Recommendation 4: The Government of Canada fund research, policy development, and inter-jurisdictional knowledge exchange regarding Crown Counsel policy, including on:

• Prosecution of elder abuse case;
• Support for witness and victims with mental capacity issues and preservation of their evidence; and
• Testimonial aids to support the participation of vulnerable older adult witnesses.

Other Elder Abuse Issues under the Federal Jurisdiction

The third key point that CCEL raised was that various non-criminal law issues ought to be addressed by the federal government. One issue that CCEL touched upon was the need for a victim and survivor-centred lens to policy development. This also includes recognizing that certain vulnerable groups are at even more risk, including Indigenous people, recent immigrant women and their children, women with disabilities, rural women, and women whose first language is either a minority language or a non-official language.[4] This dynamic calls for greater awareness of the unique needs of different populations when creating federal policies. CCEL recommended:

Recommendation 5: The Government of Canada’s law and policy response to elder abuse and neglect must recognize the unique needs of vulnerable populations such as Indigenous peoples, immigrants, and refugees.

CCEL also addressed a key accessibility issue – the need for a safe housing for people fleeing abuse. In Canada, there is only one transition house developed to meet the specific needs of older women. In many communities, the only emergency housing option for male survivors is a homeless shelter. These shelters are designed for people experiencing homelessness; support for survivors of family violence is not available, and older adults may be required to leave the facility during the day. CCEL recommended:

Recommendation 6: The Government of Canada fund the development of appropriate and accessible transition housing for older adults in communities across Canada.

The final recommendation in the CCEL’s brief to the Committee involved the importance of applying a Gender-Based+ Analysis to elder abuse policy. When addressing gender-based violence, women are often caught between two systems: those services that address domestic violence and those that address elder abuse more generally.[5]

Recommendation 7: The Government of Canada apply a gender based+ analysis to law and policy development regarding elder abuse and neglect prevention and response. 

 

Conclusion

The JUST Study on Elder Abuse has given us an opportunity to hear what various experts across Canada think about the need for criminal law reform. The process has also highlighted other issues related to effective elder abuse policy. The full CCEL brief to the Committee will be uploaded to the Committee webpage shortly. The Committee’s report will likely be published in a few months. We hope to see our seven recommendations implemented in the future.  

 

Monika Steger is a third year law student at Lakehead University in Thunder Bay, Ontario. This summer Monika is working as a CCEL legal intern thanks to funding from the Law Foundation of Ontario. In May Monika assisted CCEL National Director Krista James with our submissions to the House of Commons Justice and Human Rights Committee on their study of elder abuse. This summer she will be doing research to support the CCEL project exploring models of oversight for health care assistants in BC and our update to the Practical Guide to Elder Abuse and Neglect Law in Canada.

 

[1] Ginger L Fowler, “Protecting a Frail Generation: Georgia’s Need for Civil Protections Against Elder Abuse” (2012) 6: 351 J Marshall LJ 3. See also, House of Commons, “Report of the Standing Committee on the Status of Women” (May 2012) (Chair: Marie- Claude Morin) at 9 [House of Commons].

[2] Ibid.

[3] House of Commons, supra note 1.

[4] Ibid at 1.

[5] House of Commons, “Report of the Standing Committee on the Status of Women” (June 2019) (Chair: Karen Vecchio) at 38 (Recommendation 27).