Justice Committee on Oct. 2nd, 2012

[The Chair, Conservative, Dave MacKenzie]

Thank you. We're over time. Maybe we'll explore that a little bit later.

Mr. Seeback, go ahead.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I'm still not sure. Ms. Boivin surprised me by saying it might not be enough. It's almost as though she was saying that it's not going far enough. Maybe we should look at a mandatory minimum penalty or something, but I'm just....

[Françoise Boivin, NDP, Gatineau, QC]

I should have known.

[Kyle Seeback, Conservative, Brampton West, ON]

Ms. Butt, you talked about issues predominantly in the South Asian community. I come from a riding, Brampton West, that has an exceptionally large and vibrant South Asian community. Some of your comments struck me as something I want to explore a little bit with you.

You talked about some of the issues facing seniors in the South Asian community with respect to elder abuse. I think it's not talked about very much. I can say that no one has ever spoken to me about it. From what you seem to be indicating, it is a real issue and something we should find some solutions for.

I want to talk to you about how we can try to do some work like that. I know your organization does some work. I think you've received some New Horizons funding to help with that work. When you talk about trying to break down the barriers, I understand what you're saying. There's a language barrier, there's a shame barrier, and all these kinds of things. How would we get this message through to the seniors in our South Asian community, particularly, of course, in a riding such as my own?

[Dr. Naila Butt]

It's basically a community development approach that we have to work with. We have to work with the seniors, with the family. We have to raise awareness. We also have to work with all the stakeholders. It's not a vertical approach that you have to take. Look at the individual. You have to look at the society as a whole. What are the barriers? What are the challenges that we need to take on?

People don't talk about this issue because the expectation is that seniors are taken care of by their children. There are challenges that these communities face.

[Kyle Seeback, Conservative, Brampton West, ON]

Then how do we raise awareness within the community for the seniors who might be facing this abuse? What would be...?

[Dr. Naila Butt]

You need to have more community support groups, counsellors, and community-based agencies sharing the information about the services that are available. The information should be available in the local languages. You should have counsellors who understand the perspective of their community. We need people who can really engage with them, people in a position of trust. Faith leaders play a very important role. Places of worship are another thing. You have to engage all the sectors in the society.

Yes, it's an issue. This legislation is very important, but if you do not provide adequate community support and resources, it will not make a difference. Even for those people who don't have a language barrier, it's an issue: how will they access the justice system?

There's a long way to go, and there's a whole step in behaviour change before people feel confident enough to go and access their rights. This is what we've been doing through our Impact of Family Violence conference. The next conference is in 2013. We bring all the sectors together, which includes the police, the school systems, the community-based organizations, mainstream organizations, and the justice system. We bring them all together and have a dialogue to see what the steps are moving forward.

Of course policy-makers are a huge piece. We have to have that and raise awareness, and then have community programs that address the needs of those seniors. We need public awareness campaigns.

[Kyle Seeback, Conservative, Brampton West, ON]

Great. I'd be very interested in working with you to try to raise awareness, certainly within my riding of Brampton West. I'm pleased to hear that you're supportive of the legislation. I agree; I think it's a great step that works in conjunction with a number of other programs that we've put in place.

This is a growing issue. Our population is aging, and there are going to be more people who could be victimized. In addition to programs, a significant portion of what this bill is doing is adding a denunciation value. That's going to very helpful within the community, to know that communities all across the country denounce this type of behaviour.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Seeback.

Mr. Cotler is next.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

Ms. Eng, you mentioned in your opening remarks that you urged swift passage of Bill C-36, yet your brief calls for a comprehensive approach to punish the most egregious manifestations of elder abuse as well as preventing the abuse from occurring in the first place. This has been a common theme from all three witnesses: the importance of prevention.

Bill C-36 has but one clause: a proposed change in sentencing whereby a judge could consider the victim's age and other personal circumstances, including their health and financial situation, as aggravating factors. As such, the bill effectively operates to punish those who've already engaged in elder abuse rather than protecting seniors from such abuse to begin with. Indeed, the Criminal Code already empowers judges to consider any relevant aggravating or mitigating circumstances.

Some have argued that Bill C-36 is unnecessary. Moreover, the specific inclusion of personal factors such as health and financial situation may be problematic in that it could cause these elements to be misused at trial. Having urged swift passage of Bill C-36, are you suggesting that it be enacted in its present form, which is effectively after the fact, as an intervention, or, given the importance of prevention, are you also recommending that Bill C-36 be amended so as to address the issue of prevention as well?

[Susan Eng]

Thank you for the question.

I was never a criminal lawyer, but I suppose my past clients might be considered criminals by some. I don't know exactly how that act should operate. From our perspective, prevention is the key, and from what we also understand, the purpose of this exacerbated sentencing is to increase the deterrent effect of sentencing. We recognize fully that people get to this point in the judicial process after much else has occurred—detection, investigation, and prosecution—for all of which we encourage more allocation of resources and greater sensitization to the issue.

Detection and prevention, of course, ought to be our very first initiative. That doesn't fall to the Criminal Code, but we believe very strongly that this initiative and the kind of prominence that will be given to it will be enough to start spurring on both setting up priorities at the provincial level, which have to allocate the resources for prosecution and investigation, as well as the average Canadian who recognizes now that this no longer has to be a silent and hidden offence, that there is something the system will do something about and something they can do something about. Obviously our recommendations go beyond this provision to extend to the other kinds of resources and a comprehensiveness to the resources that are available so that the average neighbour who sees something going on knows exactly what to do next.

[Irwin Cotler, Liberal, Mount Royal, QC]

I appreciate that your brief contains seven specific recommendations and that those specific recommendations really are part of a comprehensive approach, as you mentioned, and will indeed address the whole question of elder abuse in that comprehensive fashion.

We all agree on supporting this bill in principle. My question is only whether there are any specific refinements or improvements that could be made to this bill in its present form that may make it more protective of the issues of elder abuse rather than addressing just the punishment, which is after the fact.

[Susan Eng]

I understand you.

At the time that the provision 718.2 first got first put into the Criminal Code, my work was in anti-racism, and we wanted hate crime provisions put into the Criminal Code, obviously. They weren't put in, but the sentencing provisions were put in on the recognition that many of the manifestations of a crime were assaults and other kinds of recognizable offences that were exacerbated by the hate motivation. When we looked at the provision in paragraph (a) of section 718.2, we noticed that age was one of the protected measures, but it was not clear exactly how that was going to be protected, whether it was the imbalance in terms of age or only because an older person was going to be affected.

The combination of adding the impact requirement does, I think, improve the status quo as to what else could be put in there. We have recommended that consideration be given to a specific crime of elder abuse. We are not specifically recommending it. I think that needs more review and research, but if necessary, there should be a specific crime of elder abuse that should be inserted into the Criminal Code.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Go ahead, Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

Thank you to all for being here today. It's an important topic, obviously, for all Canadians and for us.

Certainly in my law practice I ran into many of these situations, unfortunately, doing family and estate litigation particularly. Sometimes they're very sad and difficult. I think many such cases go unreported or under-reported, as has been mentioned here.

However, what we're here to deal with today is to try to create a provision within the Criminal Code that will allow judges in sentencing to achieve a certain consistency. I note in that respect that I would suggest we are seeing some increased judicial awareness.

I'll refer to just a few cases. There was the 2009 Ontario Superior Court case R. v. Foubert. In that case, there was a personal support worker who pleaded guilty to assaulting four elderly war veterans suffering from Alzheimer's disease and dementia. They were in his care. In sentencing, the offender was given a period of incarceration to be followed by a probation order with quite 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 serious way.

Another example is from 2010, in the Supreme Court of Newfoundland and Labrador in R. v. Manuel. In that case, the offender had twice broken into the home of an elderly veteran and had assaulted and robbed him. In sentencing that offender to six and a half years of 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 in our society.

There's also the 2010 decision of R. v. Kos Rabcewicz Zubkowski. In that sentencing of Ms. Kos, she was found guilty of assaulting her elderly mother and of failing to provide the necessities of life.

Of course detection and prevention are always fundamental. I've heard those comments today, and I know that's what was in mind when our government brought in, for instance, the elder abuse initiative. It was a three-year, $13 million project to increase awareness. We believe that has been successful. That doesn't necessarily mean that's all you do in that three years, but we see this as part of a package of initiatives and support in this area.

Under this proposed amendment, the evidence that an offence had a significant impact on the victims—I think, Ms. Eng, you keyed in on that—due to their age and other personal circumstances, such as their health or financial situation, then becomes an aggravating factor. We believe that once this bill is passed into law, our proposed amendment would ensure a more consistent application of sentencing practice throughout Canada.

I'm going to direct this to Ms. Eng, at least initially, just because we share degrees in law.

Do you think a consistent application of the established sentencing practice will help ensure that violence against individuals who are victimized due to their age would mean that this offence then would be treated seriously in all circumstances? Do you feel we're getting to that effect?

[Susan Eng]

I absolutely think so; otherwise I would leave it to the discretion of the judges.

I think the importance of this approach is that it's very similar to the hate motivation circumstances where, if you look at the strict parameters of the event.... Let's say it's an assault that causes no permanent injury, for example. If it's in an environment where there's been a breach of trust and it's their own son hurting them, and there's a loss of their sense of composure and their dignity and so on, under normal circumstances of a judicial decision they might say, well, it was an assault, but there was no permanent physical injury, and in such a circumstance, there may be no sentence whatsoever.

When you recognize that there was a betrayal of trust, with a complete downward spiral for the victim of that circumstance due to that imbalance in age and due to the trust and dependence on the family relationship, then there is a justification for increasing the sentencing. That's why having the added requirement to consider those circumstances—that imbalance and that vulnerability—is an appropriate additional provision to what we already have in the Criminal Code.

I do believe it will make a difference. We tend to watch public opinion a lot. While we might hear that, agreed, nobody is in support of elder abuse, the average person only notices it when something like a really stiff penalty filters down to their awareness. Then they see. Then they look back and see, well, maybe in this circumstance this is a real representation of society's collective disapproval of this kind of behaviour, and if they don't stop themselves, at least they might realize that they might get caught and be punished.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Blanchette-Lamothe, please go ahead.

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

Thank you.

I want to make something perfectly clear: we all agree that we support Bill C-36 on the whole. But the purpose of today's meeting is really to see if we can improve the bill and, if so, how. Clearly, it is equally important to point out, which you did quite well by the way, that we can't just sit back and say we've done everything that needs doing on the issue of elder abuse just because a bill like this has been brought forward.

My first question is for Ms. Beaulieu.

The minister told this committee that Bill C-36 would likely be a deterrent against elder abuse. I'd like to hear your thoughts on that. Could a bill like this one serve as a deterrent? Could it lead to lower rates of elder abuse, for example?

[Marie Beaulieu]

I am inclined to look at it through the same lens as domestic violence in terms of what we learned from that issue. I have to say I graduated around the same time as Ms. Boivin, so we can recall where the domestic violence file was some 30 years ago. A key question was contemplated: did progress really depend on the creation of specific provisions or, instead, on the proper enforcement of existing provisions in all circumstances? “Domestic violence” was not established as a new criminal act in the Code. Instead, the focus was on every step in the criminal process to ensure that domestic abuse would be taken seriously and that things would be done right when it came time for the case to be heard in court.

That is usually my position. What really matters now is recognizing that we already have multiple mechanisms that are not being used when seniors are victimized. That's why I talked about structural ageism in our systems. If, at every step of the way, we endeavoured to raise awareness and work together to make people realize that elder abuse does exist, it would be far more effective.

I'd like to pick up on something that we haven't discussed a lot so far. The very definition we are usually inclined to give the term “elder abuse” is the one established by the World Health Organization: “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”.

The element of a relationship of trust is fundamental. That means spouses, children, grandchildren, neighbours, service providers and so forth—people who are not strangers to the senior, and with whom the senior usually wishes to carry on a relationship. So when we talk about elder abuse, we are not talking about crimes committed by strangers. Earlier, someone cited some excellent examples of cases where an elderly person's home had been broken into. I would call that a general crime in which an elderly person was victimized. That is quite different from the abusive dynamic between family or friends.

Will this bill serve as a deterrent? I don't know. But what I do know is that we will see a deterrent effect if everyone in the chain, at every step of the way, knows the importance of taking elder abuse into account.

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

Thank you.

You also had some doubts about the bill's wording. I was struck by what you said.

Do you have suggestions to improve the wording of the bill? You highlighted the words that might cause you to doubt its effectiveness. How could the bill be amended, or further still, how could the Criminal Code be amended in general to provide the necessary tools to detect elder abuse crimes and adequately punish perpetrators?

[Marie Beaulieu]

In fact, a review was done, and it looked at all the sections of the Criminal Code that could apply to situations involving elder abuse. I don't have it here, but it is available on the Canadian Network for the Prevention of Elder Abuse's Web site. I think it would go a long way just to re-examine how each of those specific sections could be better applied to cases involving seniors.

The questions I wondered about earlier may have had less to do with the actual wording of the bill than the application of the bill. As regards the idea of a significant impact, I agree. For instance, the WHO definition of elder abuse I read to you mentions harm or distress caused to an older person. That is similar to the concept of a significant impact. I just want to make sure that, when it comes time to hand down the sentence, the judge has everything he or she needs to assess that significant impact.

I mentioned the victim impact statement in court. It's not an easy form to fill out. Bear in mind that a number of Canada's elderly are functionally illiterate. I am not so sure they would be able to put down in writing everything they have gone through.

Applying this change correctly means putting the right mechanisms in place so that seniors' perspectives can truly be heard. Otherwise, I fear we are missing the mark.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Albas is next.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair.

Further to my comments at last week's committee when we first started studying Bill C-36, as a new member of the Standing Committee on Justice and Human Rights I found it reassuring that there seemed to be at the time a growing consensus as to the necessity of this legislation.

To learn more, I decided to review some of the debate that was in the House. Some of the comments I found memorable were from Ms. Blanchette-Lamothe, one of the NDP critics for seniors, who spoke previously. She said during the second reading of Bill C-36, and I quote: “The NDP will support Bill C-36, but we must be clear about the fact that it is not enough.”

Well, it seems that the speech of the member opposite offered support rather reluctantly, maybe begrudgingly. I must bear in mind that it is still support and should be welcome.

I should also note that the government has long held and kept in mind a larger perspective when it comes to elder abuse and has taken some action. When Minister Nicholson testified before this committee last week, he stated that the government does not view this legislation as being the only solution to the problem of elder abuse, but rather as a complement to our government's other initiatives.

Minister Nicholson answered many of my questions and other committee members' questions regarding some of these initiatives that complement Bill C-36. He reminded us that the Conservative government continues to address elder abuse through programs like the new horizons for seniors program. Furthermore, additional funds were announced in Budget 2010 and Budget 2011, bringing the annual funding to $45 million, and that includes projects to raise awareness of financial abuse against seniors.

I understand that the Social Services Network received new horizons for seniors program funding to raise the issue of elder abuse awareness in the South Asian community, so I will address my question today to Ms. Butt.

Do you think that the Conservative government's twofold approach, such as working on some of the financial contributions through programs like the new horizons for seniors program while also bringing forward legal measures like Bill C-36, is the right way for us to proceed?

[Dr. Naila Butt]

Yes, I think they need to go hand in hand.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

You talked about not just focusing on a top-down but a wider purpose. Could you explain some of the benefits that your community is receiving in regard to the program funding that would complement Bill C-36 and address some of Mr. Cotler's concerns?