Justice Committee on Oct. 16th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is meeting number 44 of the Standing Committee on Justice and Human Rights. We are meeting pursuant to the order of reference of Wednesday, June 20, 2012, Bill C-36, An Act to amend the Criminal Code (elder abuse).

We have with us today Josephine Santos, program manager, long-term care best practices initiative, from the Registered Nurses' Association of Ontario; Melanie Perka, program supervisor of social work, elder abuse intervention team, from Catholic Social Services; and from the City of Edmonton, Patrick Power, community development social worker, elder abuse intervention team—and we see the elder abuse intervention team as one body here.

I know it has been explained to you in the letter from the clerk that if you have an opening address, you can take up to ten minutes to make that opening address to us. I'll let you know when you are at nine minutes so you can cut it off at ten minutes, to ensure a fair distribution of the time. After you have made all of your opening addresses, we will turn to the committee to ask questions.

I've already explained that the bells are scheduled to ring at 5:15, and we will end the meeting at 5:15.

Ms. Santos, if you have an opening address you wish to make now, please go ahead.

[Josephine Santos, Program Manager, Long-Term Care Best Practices Initiative, Registered Nurses' Association of Ontario]

Good afternoon. My name is Josephine Santos. I am here today representing the Registered Nurses' Association of Ontario, often known as RNAO. I am a registered nurse and the lead manager for RNAO's work on the prevention of elder abuse. Elder abuse has always been a priority for our association, and we appreciate the opportunity to provide feedback to the Standing Committee on Justice and Human Rights on Bill C-36.

Nurses know in the core of our being that no person ever deserves to be abused or neglected. AIl seniors should be able to live out their final years and enjoy a sense of respect, dignity, safety, and security. As individuals and as a society we must deliver on our duty to protect elders and fully eliminate elder abuse.

RNAO fully supports the amendment of the Criminal Code to include age and other personal circumstances, such as health and financial situation. In itself, however, this amendment will not produce the changes needed to end elder abuse and neglect.

Given that many instances of elder abuse and neglect go unreported, RNAO urges a multi-faceted approach that also includes effective prevention of the root causes that make people more vulnerable to elder abuse and neglect, such as poverty, discrimination, social isolation, and lack of affordable housing. RNAO's recommendations on addressing these social determinants of health are available in more detail in our formal written submission to this committee.

From November 2011 until April 2012 I had the privilege to represent RNAO on Ontario's long-term care task force on resident care and safety. This task force was created in response to media reports of incidents of abuse and neglect, some of which were unreported, in long-term care facilities. In 2011 alone, there were more than 3,200 incidents of abuse and neglect reported to Ontario's Ministry of Health and Long-Term Care. That works out to about 3.5 cases per 100 nursing home beds.

What we learned through surveys, submissions, and a review of the evidence is that the top factors leading to abuse and neglect in this sector include staffing issues, for example, not enough staff, heavy workload, inadequate training and skills. Other factors included dementia, mental health, and addiction linked with responsive behaviours such as being aggressive or violent. A resident may sometimes be a victim of abuse and sometimes represent a danger to themselves, other residents, or staff. In fact, about half of the incidents reported in 2011 involved resident-to-resident abuse. This means that residents with specialized needs must be better supported to ensure safety for themselves and all others in that environment. Areas that need to be addressed towards improved safety include funding for specialized facilities, dedicated specialized units within long-term care homes, appropriate physical plant conditions, specialized programs, and appropriately skilled and knowledgeable staff in sufficient numbers to care for vulnerable residents with high needs.

In May of 2012, the long-term care task force on resident care and safety released its report along with a list of 18 actions to improve care and safety—actions not only relevant to Ontario but of value from coast to coast to coast. In addition to supporting these action items, RNAO recently submitted feedback to our provincial government to help inform Ontario's seniors care strategy. RNAO has brought along copies of this submission for the standing committee, because it includes our evidence-based recommendations on how to improve seniors' care, health care, and safety across sectors, including minimum standards of nursing care in long-term care.

With funding from the federal government, RNAO and the Canadian Nurses Association in 2010 launched the prevention of elder abuse centres of excellence—also called PEACE—in 10 long-term care homes across the country. Positive outcomes of the PEACE initiative included behavioural changes and increased confidence of staff in responding to instances of abuse. Building on the success of this project, RNAO, through federal funding, is now developing a best practice guideline that will focus on addressing awareness, prevention, identification, and strategies for intervention when instances of abuse or neglect are known or suspected. This guideline will complement other evidence-based RNAO clinical best practice guidelines such as client-centred care; screening and caregiver strategies for older adults with delirium, dementia, and depression; promotion of safety; alternative approaches to the use of restraints; and prevention and management of violence in the workplace.

All of these evidence-based guidelines, as well as implementation resources, are available to be downloaded from the RNAO website without charge, along with information on RNAO's long-term care best practices initiative.

Thank you once again for the opportunity to be here today. I look forward to answering any questions you might have.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

Either Ms. Perka or Mr. Power, go ahead.

[Patrick Power, Community Development Social Worker, Elder Abuse Intervention Team, City of Edmonton]

I defer to Ms. Perka.

[Melanie Perka, Program Supervisor of Social Work, Elder Abuse Intervention Team, Catholic Social Services]

Thank you.

It is with great honour and humbleness that I present today in front of the committee on such an important matter, not only for the teams I represent, but for many elders across our nation.

Catholic Social Services in Edmonton developed the elder abuse resource and supports to work with low- to medium-risk cases and to answer Edmonton's elder abuse intake line. We also partnered with the elder abuse intervention team, which deals with the high-risk files. Our teams are dedicated to ensuring that the issue of elder abuse does not remain in tabooed silence within Canadian society any longer.

The proposed amendment to Bill C-36 within the Criminal Code and its support to date show that our federal government also recognizes the need to bring the problem of elder abuse to the forefront for serious examination. From the current literature, any opposition to this amendment has focused on the need to do more, concurring with the position presented today.

The proposed amendment states:

evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

l'd like to focus on the words “significant impact”, for those who have not been directly involved in elder abuse, for the purpose of gaining understanding of the full depth of this impact and all of its intricacies.

I personally have witnessed a senior pulling her hair out while crying as she disclosed the torment her drug-addicted son had put her through. Take a moment, if you will, to reflect on the word “torment”. What comes to mind? You might be wondering if he begged her for money so that he could buy drugs or took family heirlooms to pawn for drug money. Yes, but this senior also disclosed the horror of how one night, in a drug-induced rage, he also took her by the hair and dragged her downstairs with a knife held to her throat and held her hostage. The words "significant impact" or even “torment” don't seem to suffice. I could quite literally provide pages of case scenarios that highlight how detrimental and heartbreaking these significant impacts can be on a senior's health and well-being.

The impact of financial abuse on a senior is also devastating. Last year our team was involved in investigating a financial abuse case where the alleged amount the couple was defrauded of was upwards of several million dollars. Surprisingly, this large amount of money was taken from a very typical middle-class elderly couple by their grandchild. The subsequent wreckage resulted in the couple having to claim bankruptcy, sell their family home, and shamefully face those whom they could not repay. The disruption to a senior's life, anyone's life, in a situation like this does not have a dollar figure; it goes so much more beyond that.

It is also important to note that our team's focus on health encompasses not only physical health but psychological, social, and spiritual well-being. Health Canada defined healthy aging as “a lifelong process” of optimizing opportunities for improving and preserving health, physical, social, and mental wellness, independence, quality of life, and enhancing successful life-course transitions. When even one of these areas is compromised, let alone all of them, there is greater risk of decline in a senior's overall health due to some of the damage being irrevocable.

Abuse is trauma. In a seminar by Dr. Covington, an expert in trauma, it was stated that:

Exposure to trauma can create a PTSD response in the limbic system. ... Trauma disrupts the chemistry of the brain and can predispose a [person] to alcohol and drug use, eating disorders, self-injuring behaviour, and mental health problems.

An article in the National Institute of Justice Journal reported that dementia in seniors can compound the trauma of sexual assault. One study showed that 11 out of 20 elderly sexual assault victims died within one year of their assault.

Through our involvement with abused seniors, we have seen that compromised social and spiritual health can result in depression, anxiety, suicidal ideation, and other mental health issues. It should also be mentioned that the guilt a senior carries with them when they find themselves in an abusive situation can be extremely burdensome, due to the fact that many abusers are their own sons and daughters who they raised to the best of their abilities, or a grandchild they once wholeheartedly welcomed into this world, not faceless strangers to whom they have fallen prey.

For these reasons, and many more, having a criminal system that supports weighing these impacts upon sentencing could end up lacking in measurable change within elder abuse when many of the seniors do not want a criminal investigation brought against their loved one. There is, without a doubt, a time and a place for the sentencing for those who perpetrate elder abuse, but in many cases, what is of more importance is that there are resources, funding, and supports needed for people to do the work required to see a senior through to the other side of an abusive situation.

The legislative summary released in April of this year brought to light very clearly that

a review of the literature on elder abuse noted that “[c]riminal law is used less frequently to address abuse and neglect of older persons than abuse of other persons”.

According to our team statistics, from December to May of this year emotional abuse comprised almost 30% of our caseload. Emotional abuse is rarely if ever covered in a criminal investigation as a chargeable offence. For this reason, many callers to our intake line in Edmonton share their high level of frustration or sense of injustice after having reported elder abuse as the commercials and posters told them to do. They do not realize the limitations upon interventions—legislation and so forth. Therefore, it is hoped that our federal government's dedication to this issue not end here.

Respectfully recommended for consideration is continued dedication of or an increase in funds to support social services programs that staff such teams. More equitable pay is a serious factor, as many of these workers come from non-profit organizations within the community and there is high turnover from losing them to government-funded positions at higher wages. Further, there should be focus on supporting interventions, public education, and pressure for the review of provincial laws and legislation within which an abuser can actually be protected.

I thank the committee once again for its initial steps in honouring the elderly and more vulnerable population of Canada. I welcome any questions you may have, on behalf of our team's experience within this challenging field.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

We've been joined by Ms. Maxine Lithwick, director of the department of social services, Jewish General Hospital. She is appearing here today.

I think you got the letter from the clerk saying that if you had an opening address, we'll give you up to 10 minutes to give it.

[Maxine Lithwick, Director, Department of Social Services, Jewish General Hospital, As an Individual]

I was told basically six minutes.

[The Chair, Conservative, Dave MacKenzie]

Okay. I'll let you know if you get to nine.

[Maxine Lithwick]

Okay, but I plan just to talk within the six minutes.

First of all, I want to thank you very much for inviting me. I also want to congratulate the committee who worked on this amendment.

I have been working in the field of elder abuse for close to 30 years. Throughout my career, I as well as my colleagues have been trying to influence our having a law that would have some teeth.

Older people who are abused are more vulnerable than the younger population. The impact can be much more significant in terms of their health, in terms of their finances, in terms of their quality of life. We want to give the message that elder abuse is not acceptable.

On the other hand, elder abuse is an extremely complex issue. Very often the person who abuses the older person is someone who has a trusting relationship with the victim. Very often it could be an adult child. Sometimes that person is the only emotional link that the older person may have. So it is very complex—it's not a black and white issue—yet the consequences can be very grave, very serious. That is why I like your amendment's talking about aggravating circumstances. I think this is essential.

I also think it is important to differentiate between the abusive person who is a family member and the person who takes advantage of an older person because of that person's age and vulnerability. The dynamics are very different. The private caregiver, the accountant, or the friend next door who takes advantage financially, takes advantage and gives poor quality of care. These people are not necessarily dealing with any positive in emotional value; it is really out of pure greed or desire to control. I think the consequences for these people.... It has to be very clear that abuse is not accepted.

Very often, if it is a family member who is abusing the older person, it is very difficult to get the abused elder to denounce the situation. Very often they will not go to court and will not say anything against their family member, for fear of being abandoned, for fear of reprisal, for many reasons.

I question how this type of law is going to be applied. I really believe that to have such a law work you have to have prosecutors who are well trained in seniors' issues, in elder abuse, and you have to have judges who know how to ask questions about this issue. Even the way it goes to court has to be thought about, because even having an older person as a witness is different from having a younger person. All of the elements can be quite different.

Another thing that is important to differentiate is whether an older person is mentally competent or not, because that also impacts upon the degree of vulnerability. This links with your aggravating circumstances and the consequences on the older person. Again, the person can be defrauded or be physically abused and not be mentally competent, so the witnessing has to be done by others who are around, and this could be quite challenging.

I agree with what my colleague at the table said, that we also need to ensure that there are appropriate resources: resources for health care, resources to help an older person who wants to porter plainte and wants to testify or lay charges against an abuser have someone to accompany them. This is a very frightening, a very scary, thing to do, and for them it is a difficult process.

The other thing I want to talk about in terms of aggravating circumstances is this. To me, aggravating circumstances arise when a person's needs are not being met—such as their health care, such as having adequate supervision, such as having their medication properly monitored. But when a person is left without financial resources to live in the lifestyle they were accustomed to, that too has a significant impact emotionally, psychologically, and it can impact upon their quality of life.

There is another area I have a little bit of concern about. I mentioned the older person not wanting to necessarily press charges against the person who abuses them. It's the whole process of what I will term “signalling” these types of cases. I've heard of bank managers who have witnessed fraud going on in accounts, but they're still not quite sure whether they can call the police. Their manager may tell them, “Well, no, the client is not saying they're having a problem.” If you ask the client if they want the police to be called, they will say no. But banks do witness a lot of fraud, so I think that more work has to be done in terms of how to signal criminal cases of abuse against the elderly. This is a link in terms of giving the message that there is zero tolerance, or that you will do as much as possible to look at the impact the abuse has had on the older person.

In general, that's all I want to say. When I thought about it, I think I had as much to say as I had questions. I'm more than happy to hear your questions, and maybe that way I'll get a better understanding of how this amendment will work.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We'll begin the questions. The questions and answers are for a total of five minutes, so if I cut you off when you're answering, it's just to be fair back and forth.

We'll begin with Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you very much, Mr. Chair.

I want to thank the four of you for joining us in this important study of the proposed amendment to the Criminal Code. On behalf of our seniors, I want to thank you for the work you are doing.

I think that everyone around this table, regardless of party affiliation, knows that this will not solve all the problems our seniors experience on a daily basis. There are many other avenues to explore, but we will deal with this issue for the time being.

You have understood that Bill C-36 basically has to do with the sentencing part. Under the bill, abuse in not an offence. It applies only to the post-trial stage. We are aware that, in certain cases, there may have been no trial even though there should have been one. However, in cases where a trial was held, abuse was presented as an aggravating factor brought before the court for consideration prior to the handing down of the sentence.

At times, in committee or in the House, we wonder what the scope or importance of our work is. Last week, while we were in our respective ridings and the House was not sitting, there was an absolutely horrific high-profile case in my region. In a hospital centre, a 99-year-old lady—and I am not making anything up—was sexually assaulted by an orderly. If that is not horrific, I don't know what is. Of course, when Canadians hear about something like that, they want the accused to hang. He will have the right to his trial; I agree with that. That will not be sidestepped. However, I would be very pleased if Bill C-36 were to become a reality and the court were to apply this amendment proposed to the Criminal Code, whereby it would consider the victim's age and the impact of the offence on that person as aggravating factors.

Most of you have brought up one of my concerns, the fact that it is mentioned that this had a significant impact. I am wondering—and I am asking the question—if we should not remove the notion of “significant impact” from the proposed subparagraph. Here is what we could simply say.

I'll read it in English for you.

Paragraph 718.2(a) of the Criminal Code is amended by adding the following:

evidence that the offence had a significant impact on the victim.

Would you be at ease if we removed the word “significant”? My scare is that we're trying to help, but at the same time, as a lawyer, I'm wondering if we're not just creating more debate in front of the court. How do you define “significant”? Just the fact that it was done to a senior, it had an impact on the victim, considering their age and other personal circumstances, including their health and financial situation—it couldn't hurt. It would be better, in my opinion. What do you think?

[Maxine Lithwick]

I think it makes it simpler if you take out that word. I think the fact that you do keep the part about aggravating circumstances can be the thing that makes it....

[Françoise Boivin, NDP, Gatineau, QC]

Let's understand each other. The aggravating part is already in the Criminal Code. It's not something we're working on, so we're not removing it. It's not even a question, because that's the general way of.... It's just a listing of factors in section 718 that is given to the judge at trial to decide on sentencing. It's not part of the amendment of C-36, so it will stay. Don't ever worry about that. Aggravating will always be there. It's in the wording of what we're trying to introduce, which is the evidence that the offence had a significant impact.

My question precisely is, would it be better to not have the word “significant” in the amendment?

[Melanie Perka]

You raise a very valid point, because when I read that, I did think of that myself. Does it open up the gates to a defence lawyer’s asking what “significant” is?

[Françoise Boivin, NDP, Gatineau, QC]

She's 99 years old. She doesn't know what's happening, so who cares, or whatever.

[Melanie Perka]

Right. I thank you for bringing that up because that did cross my mind as well. That's the last thing I would want to see as an amendment—that brings up more a sense of define this, define that, that doesn't quite meet our threshold. How do you create and define a threshold for the word “significant”? People aren't textbooks. Every situation where one person experiences one bout of trauma can have resiliency kick in and the person can go on and lead a very fulfilling life; another person can't, and can't recover from it.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madame Boivin.

Mr. Jean, go ahead.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

I'm interested in some of the things you've mentioned specifically regarding the definition of elderly because there has been some discussion relating to what “elderly” actually means. I think there are probably about 11 pieces of legislation that specifically deal with elderly being 65 and other pieces of legislation that deal with it being between 55 and 70. My understanding is that everybody has a different interpretation of what elderly would be, as far as this legislation goes.

Could we go down the table and could tell you me what your definition and thoughts are on this particular issue?

We’ll start with Ms. Lithwick, please.

[Maxine Lithwick]

That's a tough question. When you talk about an elderly person from a financial perspective, a lot of people from the age of 65 on who are in retirement are in a different situation financially than they were when they were in the workforce. From a financial perspective, they are an elderly person at 65.

From a physical and psychosocial perspective, or from a health care perspective, we talk about elderly people more as people who have what we call a geriatric profile. These are people who have shown some loss of autonomy due to various health factors.

It's not a very black or white question. I know more and more in health care we look at the elderly as 75 and older because they have more of the signs and symptoms of aging having a physical, psychological, and psychosocial impact on them.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I have only a few minutes, so I just want to make sure. You're suggesting that it's 75 plus, or if there are circumstances, mental or physical, that would put that person into a vulnerable position, it might include them as well.

Ms. Perka, go ahead.

[Melanie Perka]

Speaking from what our team does, we look at 65 and over, but we also look at the surrounding circumstances. We've accepted cases as young as—I think our youngest was 58—because of mental capacity, and well-being and what not, and the huge level of vulnerability.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Dementia or....

Mr. Power, you would agree, of course, with Ms. Perka?

[Patrick Power]

Yes, I think so, looking at it from our program perspective. We look at under 65, depending on other factors—their health, other kinds of situations. Perhaps we'll consider someone who’s 57 or 58 because they may actually present or be somewhat like an 85-year-old in other circumstances as we look at that.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Do you have any directions to have consistency across the provinces and different health providers for this? Obviously that would be helpful for everybody to understand.

[Patrick Power]

Yes. My tendency is to start at 65 because we have a lot of federal programs and provincial programs that look at 65 as the age when one turns senior, so that would be a starting point. Then, as a few of us have already said, you may want to look at other factors and other ages after that.

I think 65 is still applied as a standard. If we look historically, the age of 65 was set out because at that time it wasn't felt that people would live much longer than 65.