Abuse and Neglect in Institutional Settings: Strengthening Infrastructural Criminal Law Reform
July 25, 2022
BY Ellen Spannagel
Proposed federal legislation is pursuing criminal law reform to address the abuse and neglect of older adults within long-term care.[1] A recently introduced private bill, Bill C-295, would amend section 215 of the Criminal Code to specifically criminalize owners and managers of long-term care homes who fail to provide the “necessaries of life” to people living in their facilities. [2]
However, changing the law requires wider infrastructural criminal law reform to be impactful. The Canadian Centre for Elder Law (CCEL) is excited about opportunities to strengthen holistic reform around elder abuse and neglect through our new project, Supporting Vulnerable Victims & Witnesses. But why is infrastructural criminal law reform necessary?
What is section 215, and how would Bill C-295 amend it?
Section 215 outlines a legal duty to provide the necessaries of life to someone under a person’s “charge” if that person is (a) unable to withdraw themselves from the other person’s change for reasons of “detention, age, illness, mental disorder or other cause”, and (b) unable to provide themselves with the “necessaries of life.”[3]
However, section 215 has rarely been used to prosecute elder abuse and neglect, and even less so within institutional settings.
Courts have most frequently interpreted section 215 to impose a duty on an adult child to provide adequate care for an aged parent under certain circumstances (for example, in the cases of R v Peterson, R v Noseworthy, R v Nanfo, R v Grant, and R v Davy).[4] Courts have also found a duty on a paid caregiver to provide adequate care to a client (for example, in the cases of R v Chartrand, and the most recent 2021 case of R v Brush). [5]
Cases resulting in conviction, such as the above, tend to contain extreme examples of neglect. This is likely due in part to the severity of the wording “endangers the life” and “permanent injury” within section 215.[6] For example, in the Noseworthy and Nanfo cases, the adults died before the authorities were contacted, and in the Grant case, the victim died four days after being admitted to the hospital.[7]
Within an institutional context, the current provisions target front-line workers rather than facility owners with control over how resources are managed.[8] Bill C-295 aims to rectify this by amending section 215 to include a specific legal duty on the owners and managers of long-term care facilities to provide the “necessaries of life” to residents of the facilities.[9] Owners and managers of long-term care facilities would be criminally liable where the failure to perform this duty endangers the life or causes or is likely to cause the health of a resident of their facility to be injured permanently.[10]
Bill C-295 would also allow courts to make orders preventing anyone convicted or on probation for that offence from working or volunteering in any position where they are in charge of, or in a position of trust and authority “towards an adult who is vulnerable by reason of age, illness, mental disorder, disability, or frailty.”[11]
However, beyond the wording of section 215 itself, there are several infrastructural barriers that limit prosecution for elder abuse and neglect in institutional settings.
What are existing infrastructural challenges to prosecuting elder abuse and neglect in institutional settings?
Elder abuse and neglect in institutional settings is rarely reported in the first place. Many older adults and employees have described fears of retribution or retaliation if they report issues.[12] Employees are also not adequately trained to recognize the abuse.[13] Low-reporting rates may also reflect the reality that elder abuse is not often deemed a “violent crime” due to the continuous nature of the abuse.[14]
At the charging and conviction stages, police, crown counsel, and the judiciary lack policy direction and professional development around key matters, including elder abuse dynamics, age and vulnerability, and the needs of older adult victims and witnesses.[15] In particular, there are knowledge and policy gaps regarding evidentiary issues related to mental capacity and frailty, and supporting the meaningful participation of adults with capability issues, such as adults living with dementia.[16] For example, in BC, the current Crown policy on Elder Abuse and Offences Against Elders is only two pages in length and does not address capability or capacity.[17] As a result, older adults, particularly adults with capability issues, may not pursue prosecution even when it is the best solution.[18] If crown counsel and other key justice system stakeholders do not feel skilled at supporting people with disabilities to communicate and understand information they conclude that an offense is too challenging to successfully prosecute.
CCEL’s Supporting Vulnerable Victims and Witnesses project
Without robust infrastructure encompassing charging, conviction, and support services, criminal law reform cannot meaningfully address elder abuse and neglect within institutional settings. The House of Commons Standing Committee on Justice and Human Rights recently emphasized the need for training justice system actors and developing appropriate tools and policies around the dynamics of elder abuse, particularly where capability is involved.[19] Strong policies are necessary to empower adults living with the impact of such crimes in seeking protection and support, but also to support the lawyers, police, and court and victim service workers who work with them.
This is the goal behind the CCEL’s Supporting Vulnerable Victims and Witnessesproject. The project will provide a model policy framework that includes best practices in supporting witnesses and victims with capability issues and promotes interagency cooperation between police, lawyers, advocates, and victim services working with vulnerable adults who may have capability issues.
In developing the model policy framework, the CCEL is seeking participants to interview, including people working as Crown Counsel, RCMP members, Victim Services staff, and support workers for vulnerable adults. If you are interested in participating, contact Alison Wilkinson at [email protected]. Stakeholder insights are critical to developing policies geared toward infrastructural reform and in ensuring any criminal law reform is impactful.
[1] Marie-Danielle Smith, “Ottawa exploring criminal reform as Liberal MP tables bill on long-term care neglect” (16 July 2022), online: Toronto Star < www.thestar.com/politics/2022/07/16/ottawa-exploring-criminal-reform-as-liberal-mp-tables-bill-on-long-term-care-neglect.html>.
[2] Bill C-295, An Act to amend the Criminal Code (neglect of vulnerable adults), 1st Sess, 44th Parl, 2022 (first reading 20 June 2022) [Bill C-295].
[3] Canadian Centre for Elder Law, “The Counterpoint Project—Discussion Paper, Moving From Scrutiny to Strategy: An Analysis of Key Canadian Elder Abuse and Neglect Cases” (2011) at 23, online (pdf): British Columbia Law Institute < www.bcli.org/publication/counterpoint-project-discussion-paper/?hilite=counterpoint> [CCEL, “Counterpoint Project”]; Criminal Code, RSC 1985, c C-46, s 215.
[4] See e.g. R v Peterson, 2005 CanLII 37972 (ON CA); R v Noseworthy, 2007 CarswellOnt 9604 (Ont SCJ); R v Nanfo, 2008 ONCJ 313 (CanLII); R v Grant, 2009 NBPC 17 (CanLII); R v Davy, 2015 CanLII 10885 (ON SC).
[5] See e.g. R v Chartrand, 2009 CanLII 20709 (ON SC); R. v Brush, 2021 BCSC 2389 (CanLII).
[6] CCEL, “Counterpoint Project”, supra note 3 at 23.
[7] R v Noseworthy, supra note 4; R v Nanfo, supra note 4 at para 21; R v Grant, supra note 4 at para 6.
[8] Canadian Centre for Elder Law, “Study of Elder Abuse” (18 May 2021) at 2, online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/432/JUST/Brief/BR11347279/br-external/CanadianCentreForElderLaw-e.pdf> [CCEL, “Study of Elder Abuse”] .
[9] Bill C-295, supra note 2.
[10] Ibid, cl 2.
[11] Ibid, cl 3.
[12] CCEL, “Study of Elder Abuse”, supra note 8 at 2.
[13] Ibid at 3.
[14] Ibid.
[15] Ibid at 4.
[16] Ibid; See also Alison Wilkinson, “New Project: Supporting Vulnerable Victims & Witnesses” (16 May 2022), online: British Columbia Law Institute <www.bcli.org/new-project-supporting-vulnerable-victims-witnesses/>.
[17] Wilkinson, supra note 16.
[18] Ibid.
[19] House of Commons, Elder Abuse: Identifying the Issue and Combatting All Types of Abuse: Standing Committee on Justice and Human Rights (June 2021) (Chair: Iqra Khalid) at 25–26.
