House of Commons Hansard #4 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was speech.

Topics

Older Adult Justice Act
Private Members' Business

6:05 p.m.

NDP

Lorne Nystrom Regina—Qu'Appelle, SK

Mr. Speaker, I too want to say a few words in support of the bill put forward by the member for Sudbury. I congratulate her for doing this.

In case I forget, I want to ask the member to take a look at a bill I drafted and tabled some time ago, Bill C-227. It was a bill to investigate the difficulties encountered by seniors when they deal with the Canada pension plan, the old age pensions and the different tax liabilities. It might be complementary to what she is trying to do. I had some help on that by people who were experts in the field. It might be something worth looking at.

In any event, I do support the bill put forward in the House today. We are an aging society. I just looked at some recent statistics showing that in the year 2000 some 16.7% of our population was over 60 years old. In the year 2050, another 50 years from now, the population over 60 years of age will be 31.9%. In other words, Mr. Speaker, 50 years from now you will be among the oldest one-third of the Canadian population. That will be getting up there in age by that time of course. We are an aging society and the baby boom is going through the cycle.

I suppose one of the deficiencies in our social system has been in making sure our older people, our senior citizens, get a decent, fair and just break in our society.

I have been a member of Parliament now for about 32 years. I was elected in 1968 and was out for one term. I have had my attention drawn many times to elder abuse. It occurs in all kinds of places and forms that we would not expect: abusive families, abuse between spouses, abuse between strangers and elders, and patronizing attitudes toward senior citizens. One sees and hears about it all the time. It is something for which we have to be concerned in terms of discrimination based on age.

One reason for referring the bill to committee for study is that there are all kinds of aspects of how we should be treating senior citizens better which we can study at the same time.

I am glad the member has taken the initiative in this bill to get the ball rolling and establish an ombudsman for older adult justice and the Canadian older adult justice agency and amendments to the Criminal Code. Of course that would include the Prime Minister of Canada as well. We may have to be very careful with how we question him in question period.

I think the bill is a move in the right direction and it is something we should be supporting. It is not right to discriminate against anyone on the basis of gender, sexual orientation, colour, religious background or on the basis of age, and that certainly does occur.

Some day in this country we will have a serious debate on an issue called mandatory retirement. I happen to agree with the Prime Minister of Canada that age 65 should not be a mandatory retirement age. I think that is discrimination based on age. At the same time, we have to make sure that people have adequate pensions so they can make a real choice as to whether they can retire at the age of 65.

We have made progress since the 1930s and 1940s on pensions, on seniors and on poverty, but I do not think that progress has been continuing on in the last 10 or 15 years as it was in the previous 25 or 30 years. It has levelled off. We have a lot of senior citizens living in poverty and below the poverty line.

Those are some of my concerns. We need an improved pension system. We need to improve the Canada pension plan so people will have a more adequate income. Private pension plans have to be more portable. We need to ensure that we have a retirement safety net for people so they can have a decent living and not live in poverty after they retire.

I remember growing up on the Prairies and believing all my life that it was the older people who built Canada, the pioneers who came out to my part of the world, Saskatchewan, which became a province in 1905.

Actually my father was born at the end of 1909. He was one of the last pioneers in this country in terms of filing for a homestead under the homestead act. He had one of the last homesteads in central Saskatchewan.

People of my grandparents' generation born in the last part of the 1800s and into the early 1900s were the real pioneers. They built a country through sweat and tears and hard work. They made many sacrifices and passed on a pretty good country to all of us. It is imperative for us now to make sure we treat our senior citizens with respect and dignity and to provide the financial means to make sure that they can live a decent life.

I am also concerned about adequate health care. We have across the way the sponsor of the bill who is a former minister of health. She knows the challenges in that field and the challenges that we have now. At one time the federal government paid half the cost of health care and the provinces paid half, but now the provinces put up over 80% of the health care cost. This is a big issue. The senior citizens use the health care system more than any other citizen. If we have a squeeze for health care, it is the senior citizens that tend to suffer more than anyone else. We need more money from the federal government for health care as well.

I have mentioned an adequate pension system. I have mentioned the need for more adequate health care and the concern that I have that a lot of people are living in poverty. Those are some of the other issues we have to wrestle with.

The pension issue is a very important one because of the aging of the population. We have to make sure that we can afford to pay adequate pensions for people when they retire, whatever that retirement age should be.

I remember when the member was a cabinet minister. An idea was floated by the Liberal government of the day which was called the seniors benefit package and was part of the present Prime Minister's deficit cutting strategy. The legislation, had it passed, would have done away with the last social program that was specifically there to help seniors, namely the Old Age Security Act. It is thanks to the intense lobby of senior citizens, the public and the opposition that this idea was dropped.

I also remember back in the Mulroney days when the Conservatives wanted to partially deindex old age pensions. There are a couple of Mulroney fans sitting here in the House of Commons, members of the Conservative Party. In the end the Conservatives did that.

I remember when they brought it in. Mulroney was very popular in 1985. There was a big rally here in the House of Commons. I see two Brian Mulroney fans sitting in the House, one from Yorkton—Melville and one from Ontario, two Conservative MPs. In 1985 there was a big rally in the House. A little woman named Madam Denis, who probably stood about 4 feet 10 inches, said in French to the Prime Minister, “Vous avez menti, vous avez menti”. She said to the Prime Minister, “You have lied to us”.

I remember the galvanizing of public opinion at that moment. I think the member for Sudbury became a member in 1988 and this occurred before she came to the House. I remember how the public opinion at that time galvanized and changed because of Madam Denis.

The grey lobby is increasing in size. It is politically a very potent force out there and an important force. The senior citizens should be listened to. When governments have tried to tinker with programs that they hold dear, and I have mentioned a couple of examples, there have been very effective protests by senior citizens. This is something we should pay heed to. They are our constituents and a very important part of our constituency.

The member for Sudbury makes some excellent points in the legislation. One of the points is that there are crimes being committed against seniors. We have heard about different scams and different con artists that prey on seniors, who telephone them with different ideas about where they should put their money. I have had cases where seniors have called my office after being taken by con artists on different schemes. They go after seniors because they feel they are vulnerable. In many cases it is older women who they feel are vulnerable and they take their money.

In summary, I commend the member for Sudbury. We should send the bill to committee. We should study the whole area of how we treat seniors and make sure we have a fair and just society for them in the years that lie ahead.

Older Adult Justice Act
Private Members' Business

6:15 p.m.

London West
Ontario

Liberal

Sue Barnes Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I am pleased to have the opportunity to speak on Bill C-439, the Older Adult Justice Act, introduced by the member for Sudbury.

I would like to thank her for the work she has done.

The amendments in the bill propose to establish the office of the Ombudsman for Older Adult Justice and the Canadian Older Adult Justice Agency and to amend the Criminal Code provisions on sentencing.

I would like to assure the House that those of us in the Department of Justice, including the minister and myself, understand that the protection of older adult rights is a serious matter in this country. I listened to all members in the House today and all of us take these rights seriously.

Through the work of the Department of Justice, we hope to attain a balance of the appropriate protection for older adults while maintaining respect for older adults' rights of independence.

Together with the partners that we have in this country, including the provincial and territorial governments, non-government organizations that operate in our community and the private sector itself, the department currently addresses older adult justice issues through strategies that include legal reform, public legal education, information, research and support for various programs and services.

These efforts have included involvement in the federal government's family violence initiative and the national crime prevention strategy, as well as involvement in and support for the work of the federal-provincial-territorial ministers responsible for seniors' safety, and the security working group in the interdepartmental committee on aging and seniors' issues.

I note that some of the members in the chamber have referred to these areas. The department also provides leadership for the federal interdepartmental working group, which is very active on safety and security of seniors.

Many other issues addressed by this bill are addressed by current provincial-territorial laws. That has been pointed out earlier today. To date, the provincial-territorial law addresses the interests of older adults in terms of physical and mental states, for example, issues of guardianship, health law, substitute decision making, and even those areas that relate to dying, for example, wills and estate planning.

There are also offences within current provincial-territorial jurisdiction such as an abuse of the power of attorney. Several jurisdictions in Canada have also enacted social welfare or protective legislation to protect older adults who are victims of physical or sexual abuse, mental cruelty, or inadequate care and attention.

In jurisdictions where adult protection and guardianship legislation is in place, there may be statutory adult protection service programs that offer a combination of legal, health and social services interventions. That cooperation is more important as one ages, particularly the integration of activity.

While we agree with the overall goal of Bill C-439, the Department of Justice will not support the bill in its current form because of the unconstitutional nature of this particular bill. The main constitutional question raised by the bill is whether the bill is within Parliament's legislative jurisdiction under section 91 of the Constitution Act, 1867.

Part 1 of Bill C-439 would establish the office of the ombudsman for older adult justice, responsible for promoting the protection of older adult rights, investigating complaints, and referring to the Minister of Justice matters not settled satisfactorily.

Part 2 of the bill would establish the Canadian older adult justice agency, responsible for providing resources to promote the protection of older adult rights, including information on the prevention, detection, assessment, identification and treatment of older adult abuse, neglect or exploitation.

Parliament does not have direct legislative competence over the rights of older persons in relation to adult abuse, neglect or exploitation outside the context of criminal law. Inside the context of criminal law, we do have this power. In fact, Canadians aged 65 and older had low levels of violent victimization. It is about 1.8%, although they account for 12.7% of the population, and I am quoting 2002 statistics.

Aside from the proposed amendments to the Criminal Code, which do not present the jurisdictional issue, Bill C-439 is not a criminal law measure. Instead, the bulk of the bill is outside Parliament's direct legislative jurisdiction.

The creation of an ombudsman for older adult justice and of a Canadian older adult justice agency could be done federally through the exercise of the federal spending power. The courts have recognized that there is a federal spending power even though it is not mentioned specifically in the Constitution.

The courts have held that Parliament may constitutionally direct the expenditure of money outside its area of legislative jurisdiction so long as the spending statute does not amount in substance to a direct regulation of a matter within provincial jurisdiction. We have heard two of the parties mention this problem earlier today.

Much of Bill C-439 could be accomplished as an exercise of the federal spending power. In general, the ombudsman for older adult justice and the Canadian older adult justice agency proposed by this bill perform non-regulatory functions such as examining issues, making reports, collecting and disseminating information and other like aspects.

There are, however, provisions of Bill C-439 that step well beyond the simple exercise of the spending power and over the line into regulation. This is where we have problems of authority and jurisdiction.

For example, subclause 7(8) of the bill purports to give the ombudsman, in the course of conducting an investigation or study, to require any person to furnish information and to produce documents, papers or things.

Subclause 7(11) prohibits people from obstructing the ombudsman in the performance of the ombudsman's duties and functions under the bill.

Subclause 7(12) makes it a summary conviction offence to contravene clause 7 of the bill, including the ombudsman's right to require information and documents in the obstruction prohibition.

The provisions giving the ombudsman the power to compel information and the production of documents and the offence of obstructing the ombudsman cannot be sustained under the spending power. This is an extension. It is well beyond the jurisdiction. These provisions purport to regulate conduct by imposing legal penalties for failure to abide by the act.

The creation of offences as the most coercive of state regulation of conduct is well outside the scope of the spending power exception. The provisions of the bill I have just described are therefore outside Parliament's power to enact.

There is a similar constitutional flaw in the regulation making power contained in subclause 32(2). This subclause purports to authorize the governor in council to make a regulation, making it an offence to contravene the regulation. Here again, the delegation of this power to create offences exceeds the constitutional basis of Bill C-439, which is the federal spending power.

Having said that, there is no doubt that members in this chamber are interested in all those areas that affect seniors. I applaud the member from Sudbury for raising this. It is a good thing that we are standing in the chamber this hour and another hour, hopefully, to debate these issues and highlight the issues that the member, I know, is very concerned about, and all of us are in our communities.

However, it is not just noble principles that we have to debate in the chamber. We are legislators. We have jurisdictional issues and we should work cooperatively with the jurisdiction that has those areas of responsibility to engage all of us in our communities and make things work properly in a way that we can effect change. It is not our job to spend a lot of time where we cannot be the most effective with the time and resources we have available. We should be working within the jurisdictions, even in the most cooperative manner, to the best benefit of all of our constituents.

No one is saying that these rights and obligations in these areas are not of supreme importance in our communities. Obviously, all citizens are valuable in our communities and older citizens are a special responsibility, just as, as another member mentioned, the youngest citizens.

It is our job as legislators to engage and envelope the ideas, the goals and the values that I think the member is getting at. What she is looking for is an envelope of a bill to address the objectives. The situation with the bill and its present context does not meet the jurisdictional requirement to be supported by the government, the justice minister and the justice department.

Constitutional flaws are serious flaws and we should respect them. Having said that, I do respect all members of the House and their ideas. I think further discussion of anything that could benefit our seniors is a worthwhile use of our energy.

I will end by saying to the hon. member that I look forward to the ongoing debate on this issue. I commend her for her work.

Older Adult Justice Act
Private Members' Business

6:25 p.m.

The Deputy Speaker

The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the Order Paper.

Message from the Senate
Private Members' Business

February 5th, 2004 / 6:25 p.m.

The Deputy Speaker

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed a bill to which the concurrence of the House is desired.

It being 6:30 p.m., the House stands adjourned until tomorrow at 10 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 6:30 p.m.)