Bill C-36 (Historical)

Protecting Canada's Seniors Act

An Act to amend the Criminal Code (elder abuse)

This enactment amends the Criminal Code to add vulnerability due to age as an aggravating circumstance for sentencing purposes.

Protecting Canada's Seniors Act

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

moved that Bill C-36, An Act to amend the Criminal Code (elder abuse), be read the second time and referred to a committee.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, it is a privilege to speak to Bill C-36, the protecting Canada's seniors act.

As members are no doubt aware, the abuse of elderly Canadians is a problem that is generating outrage across this country. Given the reality of our aging population, it is unlikely that this problem will go away on its own.

The courts have also taken notice of this emerging trend. In Regina v. Foubert in 2009, for instance, the Ontario Superior Court of Justice dealt with the case of a personal support worker who pled guilty to assaulting four elderly war veterans suffering from Alzheimer's disease and dementia while they were in his care. In sentencing the offender to a period of incarceration to be followed by a probation order with onerous conditions, the sentencing judge noted the growing phenomenon of elder abuse in our society and the need for it to be addressed in a most serious way. In this regard, the judge added:

...there is little to distinguish individuals suffering from Alzheimer's disease or severe dementia from children. Both are among the most vulnerable members of our society. Just as one is forbidden to strike a baby, one is forbidden to strike a vulnerable, elderly person.

I do not believe there is a person in this chamber who would disagree with this statement.

Yet another example of judicial awareness of the issue of elder abuse in Canada is provided by the 2010 Newfoundland and Labrador Supreme Court decision in Regina v. Manuel. In this case, the offender had twice broken into the home of an elderly veteran and assaulted and robbed him. In sentencing the offender to six and half years imprisonment, the judge was clear in stating that the sentence being imposed was designed to address the public interest in deterring criminals from breaking into private homes and especially the public duty to protect the elderly of our society.

This is an issue of serious concern to our government. During the last general election we made a commitment to address it through an amendment to the Criminal Code to add, ”vulnerability due to age as an aggravating factor when sentencing those who commit crimes against elderly Canadians”.

Once passed into law, this amendment will ensure that the approach now being taken in a piecemeal fashion by the courts in different parts of Canada will truly become a national standard.

Our commitment in this regard was reiterated and strengthened through the statement in the Speech from the Throne of June 3, 2011, that our government would protect the most vulnerable persons in our society and work to prevent crime by proposing, among other things, tougher sentences for those who abuse seniors. The proposed amendment set out in the bill before members today will do just that.

More specifically, the bill proposes to amend paragraphs 718.2(a) of the Criminal Code to provide that where an offence has had a significant impact on a victim due to that victim's age and other personal circumstances, including their health or financial situation, it shall be considered to be an aggravating factor for sentencing purposes. This means that judges all across Canada will be better able to justify the imposition of a serious penalty in cases where elderly persons are victimized. This amendment would convey the strong message that abuse of older Canadians will not be tolerated.

The proposed amendment is not intended to be a simple stand-alone response to elder abuse but rather complements other efforts being made by this government to address this serious issue.

The proposed amendment would also complement provincial initiatives focusing on health, social services and adult guardianship. Such initiatives address elder abuse through general legislation, policy or specific requirements such as mandatory reporting of suspected abuse.

As the case and recommendations to which I have referred indicate, “elder abuse” is an expression commonly used to refer to the victimization of older individuals.

A useful working definition was developed in 2002 by the World Health Organization that characterized elder abuse as "a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person".

Today, it is generally understood that the abuse of elderly persons includes physical and psychological abuse, financial exploitation and neglect.

One of the challenges of addressing elder abuse is that there is no consensus on a definition of who is an elderly person either within Canada or abroad. This has resulted in wide variation in defining older, senior or elderly persons.

For instance, chronological age is specifically referred to in at least 17 statutes in Canada. Thirteen of these statutes refer to the age of 65 but other references vary from 50 to 75, depending on the circumstances. The majority of these statutes deal with issues relating to retirement and pensions.

However, the impact of a crime on an elderly person is not always tied to the chronological age of the victim. Not every 65-year-old person is equally vulnerable. Much depends on the personality and life experience of such a person, as well as factors such as physical and mental health, whether a support system in the form of a loving family and friends exist, and whether the person's finances are secure and sufficient for his or her future well-being.

In short, as opposed to children of tender age for whom a general assumption of vulnerability is far more justified and appropriate based on chronological age alone, there is no one size fits all age at which the chronologically older person could be said to be vulnerable in terms that are easily recognized by the criminal law. This is an important point because the impact of a crime on an older person is more typically associated with the combined unique characteristics of that person that when viewed together reflect the overall impact of the offence.

Therefore, in order to properly achieve the goals behind this amendment, the bill deliberately does not set a chronological age as a triggering factor for invoking the aggravating factor. Rather, it focuses on the impact of the crime on an elderly victim in light of the combination of age and personal circumstances that render that person particularly vulnerable to the offence in question.

I must add that the Criminal Code currently contains dispositions that address some but not all forms of elder abuse. In this regard, and as I will outline, the amendment before us today goes beyond these more limited approaches to this issue.

For example, and as most members will recall, this government introduced the Standing Up for Victims of White Collar Crime Act, which came into force on November 1, 2011. One of the elements of this legislation was the addition, as an aggravating factor for the offence of fraud, of the fact that the offence has had a significant impact on the victim given his or her personal circumstances, including age, health and financial situation. This aggravating factor was in response to large scale economic crimes that have had devastating consequences for vulnerable victims, particularly seniors who have a reduced ability to replace the moneys stolen from them.

The Criminal Code also lists other aggravating factors that address some of the circumstances often present in cases that may be characterized as elder abuse.

For instance, the Criminal Code provides in subparagraph 718.2(a)(i) that where an offence was motivated by bias, prejudice or hate based, for instance, on age, mental or physical disability, it shall be considered to be an aggravating factor for sentencing purposes. This aggravating factor addresses cases where crimes were motivated by hate toward an identifiable group, such as seniors.

By way of comparison, the proposed aggravating factor in the bill before us today would recognize that the impact of crime on a victim may be exacerbated by reasons of a combination of the person's age or other personal circumstances, such as the individual's health.

Other aggravating factors currently in the Criminal Code that would also apply in some elder abuse cases include the fact that the offender abused a position of trust or authority in relation to the victim, which is cited in subparagraph 718.2(a)(iii), or abused the offender's spouse or common-law partner, subparagraph 718.2(a)(ii).

These aggravating factors apply not only where the abuse was committed by a family member, but also where the abuse was committed, for example, by a caregiver in a nursing home who was in a position of trust and authority over vulnerable seniors.

In addition to the aggravating factors I have mentioned, the Criminal Code provides a range of specific offences that equally apply to protect Canadians, regardless of whether the victim is male or female, able-bodied or disabled, young or old.

For example, the offence of assault applies equally to all Canadians to protect against physical abuse. Mental cruelty is captured by offences such as intimidation or uttering threats and financial abuse is captured by theft or robbery.

In some instances, an offence is applied to a specific relationship that may be relevant to elder abuse cases. One such example is the offence of the failure of an individual to provide the necessities of life to a person under his or her charge if that person is unable by reason of age, illness or mental disorder to withdraw himself or herself from that charge and is unable to provide himself or herself with the necessities of life. This is section 215. This offence is commonly charged in elder abuse cases.

All Criminal Code provisions that I have just referred to can be used depending on the circumstances. The proposed amendment in the bill is of a more general and all encompassing nature that will ensure that no case of elder abuse falls through the cracks simply because it does not fit exactly within the language of these more specific provisions.

The bill is needed now. According to Statistics Canada, in 2010 an estimated 4.8 million Canadians were 65 years of age or older. This number is expected to double in the next 25 years to reach 10.4 million seniors by 2036. By 2051, about one in four Canadians is expected to be over the age of 65. These statistics clearly show that our population is aging and that the number of elders who may be at risk of such abuse will increase as more baby boomers become dependent upon others, such as family members, for their care.

According to a January 2011 report by the Canadian Centre for Justice Statistics, in 2009 about 70% of reported crimes against Canadians aged 65 or older were committed by a member of the victim's family or by a friend or acquaintance, and 29% by a stranger. In terms of crime committed by family members, assault was the most common violent offence committed, accounting for more than half, 53%, of all violent offences against seniors. Other forms of family violence against seniors included: uttering threats, which represented 21% of such crimes; major assaults, which represented 13% of family violence against seniors; and criminal harassment, which represented 4% of such crimes.

It is important to understand that those numbers may be well underestimated as to the true extent of family violence against seniors, as many cases of elder abuse might not have been reported to the authorities. For instance, according to the 2009 general social survey, about seven in ten violent victimizations were not reported to the police because victims did not believe that the incident was important enough, or because the victim may still care for the abuser, or because the victim feels ashamed of being unable to stop the abuse on his or her own. Another reason is that older persons are more likely to suffer from chronic illness and cognitive impairment, which may limit their ability to report violence to police.

These facts speak for themselves. Older Canadians are at risk and can expect to continue to be at risk for the foreseeable future. That is clearly not right. Older members of our society, those who have contributed to building our great country, should not have to live in fear for their personal or financial security. After all, they have given to Canada and they have a right to be treated with respect and to live in a safe environment. Bill C-36 is a significant contribution to this important objective. I urge all members to support the expeditious passage of the bill.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, my question was actually about a step before the bill.

Many seniors find the justice system intimidating and incomprehensible. They are in no position to take their abusers to court. Because seniors do not understand the system, they cannot make informed decisions. They cannot decide whether they want to take the person to court. That creates a paternalistic environment with someone else making their decisions for them.

Does the government plan to do something to help these people by ensuring that they understand their rights and are capable of making their own decisions about whether to take the person to court?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I would like to thank the member for her question.

This government has invested significant funds in helping victims of crime. Two authorities are responsible for intervening when such crimes occur. The province, through its minister of social services, should help the victims, and the federal government also takes steps to protect victims of crime. I think that these authorities are well placed to guide seniors in their decision-making process.

I should also mention that if an incident is reported to the police, it is no longer up to the victim to decide whether to take the matter to court.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, here we are debating yet another bill to expand the provisions of the Criminal Code. It seems as though the answer from the Conservative side to all that ails society is to expand the provisions of the Criminal Code to focus on the offender, to focus on retribution. I believe we all share the goals of protecting our seniors. I heard my colleague say that this focuses on showing respect to seniors and preventing abuse, including financial exploitation.

My question is on the inconsistency between what we are attempting to do here today through amendments to the Criminal Code, and what we saw here just a few weeks ago when, in a classic case of financial exploitation, the government raised the age of eligibility for old age security and the guaranteed income supplement for our most vulnerable seniors. Does the hon. member not see the patent inconsistency in the government's position with respect to the treatment of seniors in this regard?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, there is clearly no inconsistency. Obviously, a lot of the amendments to the Criminal Code have been made with a view to protecting Canada's most vulnerable citizens, the seniors. The measures taken to change the Old Age Security Act, given the demographic changes, were to protect seniors in the future. We know that by 2030 there will only be two people working to fund those benefits going to each senior.

Again, measures have been taken to make sure that the system continues for seniors in the future, so there is no inconsistency in protecting Canada's most vulnerable.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Mr. Speaker, I have a question for the hon. member. When we look at what the Conservative government has done for seniors since we came to office in 2006, such as implementing the tax-free savings accounts, which many seniors across the country have engaged in, as well as 6 million other Canadians, income splitting for seniors, extending the GIS for the lowest income seniors and taking many seniors off the tax rolls altogether, is this not just another piece that we are doing as a government to try to support our seniors?

We have made several initiatives in several different areas to support our seniors, not only with respect to the criminal justice system or extending the powers of law enforcement to support seniors in the Criminal Code, but also financially. We also implemented a national seniors day showing our strong support for seniors.

This is just another piece of the puzzle, is it not?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, the hon. member has certainly fallen upon two golden common threads in his comments.

One is that throughout all legislation obviously this government has sought to protect seniors, whether it be financially or against crime. The measures to protect them financially, take them off the rolls of the taxman, permit income splitting and the guaranteed supplement for revenue have been put in place by the government.

The other common golden thread is that with each one of these measures taken by this government, the opposition, particularly the NDP, has voted against protecting them in that fashion.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I am very proud that we voted against those measures. The Conservatives did not get the job done for Canadian seniors.

If we pause and think about it for a moment, over the last five to six years there have been repeated conversations in the House about 300,000 seniors living in poverty. Most of those who collected GIS were women. They were getting approximately $15,000 a year when the poverty line was $22,000 a year. Instead of giving them a $200 a month increase that would have helped alleviate that, as was suggested in the last election by the NDP and in the House repeatedly, the government gave them $50. The HST increase in Ontario alone ate up most of that $50.

Therefore, the government should not try to tell members on this side how much it has done for seniors. It has taken $6,000 out of their lifetime income for each of those two years that it has moved forward on changing the age of eligibility from 65 to 67. It is really frustrating on this side of the House because we hear these claims of what it is doing, but it is not getting done.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I believe the hon. member is referring to the change in the OAS, which will take effect in a whopping 23 years. What has really been taken away from the seniors, other than the possibility of future seniors being able to benefit from the program? We know that demographically it will not be sustainable if we do not take the measures to protect them now and in the future.

Obviously, the opposition has a different way of looking at things. Everyone lives with the costs of living, whether it be transportation of goods or paying heating. Imposing the carbon tax that the opposition proposes would be a large taxation on the funds of seniors who perhaps have limited funds. We have a different view of making their quality of life work.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, when the government gave its reasons for the changes to OAS, $36 billion a year is what it cost, escalating to $109 billion, there is no argument there. We agree with the government on that, but the assumptions the Conservatives are using do not take into account an average of 2% growth in the GDP, as projected by their own Minister of Finance over the next number of years. That would pay for it.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

That is very interesting, Mr. Speaker. According to the hon. member, this system is sustainable. The question I would ask him is, in the following 20 years, how many people will have dialysis? How many people will have cancer treatments? How many people will have medical treatments which will go well into the future because Canadians continue to live longer and health care goes up?

These two things run in tandem. We have no way of predicting exactly how much medical treatment will be needed. We know it will increase. We know the demography of the Canadian population is becoming significantly older. With age comes medicare. With age come health costs. We are taking steps to protect seniors in the future.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, I would like to start by seeking the unanimous consent of the House to share my time with the hon. member for Rivière-des-Mille-Îles.

[The Speaker, Conservative, Andrew Scheer]

Does the hon. member have the unanimous consent of the House to share her time?

[Some hon. members]

Agreed.