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

[Lynne Yelich, Conservative, Blackstrap, SK]

moved that the bill be read the third time and passed.

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

Mr. Speaker, it is an honour to speak to Bill C-36, Protecting Canada's Seniors Act, following its review by the Standing Committee on Justice and Human Rights. Bill C-36 builds on our government's commitment to protect the most vulnerable members of society, including the elderly. To this end, Bill C-36 proposes to consider as an aggravating factor in sentencing the fact that an offence has had a significant impact on the victim because of the combination of his or her age and any other aspect of his or her personal situation, including his or her health and financial situation.

I am pleased that the witnesses who appeared before the Standing Committee on Justice and Human Rights expressed their support for the general purpose of Bill C-36. Several of them said that the bill would increase public awareness of elder abuse in Canada. This further confirms the important role that this legislation will play in elder abuse cases by emphasizing the sentencing principles of denunciation and deterrence. This government recognizes the concern expressed by witnesses who appeared before the committee who noted that Bill C-36 could not serve as the only response to the problem of elder abuse.

It is important to note that this legislation was never intended to serve as the only response to elder abuse. The proposed amendment to the Criminal Code would complement the significant resources that our government has been investing for several years to fight elder abuse. For example, the elder abuse initiative has contributed to raising public awareness with its advertising campaign entitled “Elder Abuse--It's Time To Face The Reality”.

Another example of our government's investments in this area is the new horizons for seniors program. Since its creation in 2004, this program has supported projects to upgrade seniors facilities and to increase elder abuse awareness, among other things. Some of the projects funded by this program are Canada-wide and aim to develop and implement awareness activities and to create tools and resources to help seniors protect themselves against abuses, such as fraud and financial exploitation.

Some of the agencies that appeared before the committee have benefited from this program. For example, we heard that the long-term care best practices initiative had received funding from this program to develop long-term care best practices guidelines that would benefit Canadians across the country. Such examples illustrate how this government understands and recognizes that efforts to fight elder abuse must be made at the federal and provincial levels through, for example, legislative amendments in areas of exclusive jurisdiction, as well as investment in community, regional and national initiatives, including the ones I have just mentioned.

As we heard in committee, it would seem that Bill C-36 has unanimous support in principle. However, the opposition parties proposed two amendments during the clause by clause consideration of the bill. The first proposed amendment, which was passed by the committee, amended the short title of the French version of the bill from “Loi sur la protection des personnes âgées au Canada” to “Loi sur la protection des personnes aînées au Canada”. This amendment responded to concerns expressed by a few witnesses that vulnerability should not be defined only in terms of a victim's age.

Bill C-36 would instruct sentencing courts to take into account the significant impact that the offence has had on the victim, considering the combination of age and other personal circumstances, including health and financial situation.

The second amendment to the bill would have eliminated the word “significant” from the proposed amendment to the Criminal Code so that any impact on the victim would be considered as an aggravating circumstance in sentencing. In my opinion, such a proposal reflects a lack of understanding of the Criminal Code and, in particular, of the sentencing scheme. The proposed amendment, if passed, would have trivialized the denunciatory and deterrent value of the aggravating factor in Bill C-36 by making it apply to any offence against seniors that has had an impact, even transient or trifling in nature, on an elderly victim.

We agree that every offence has an impact on its victim. However, Bill C-36 addresses cases where the impact of the offence is exacerbated because of the victim's age and health, for example. It also bears noting that Bill C-36 is consistent with recent amendments to the Criminal Code.

Section 380.1 of the Criminal Code was amended, effective November 1, 2011, to specify that, in the context of fraud, the fact that an offence has had a significant impact on the victims given their personal circumstances, including their age, must be considered as an aggravating circumstance.

This provision thus bears at least two similarities with the amendment proposed in Bill C-36. It speaks of a “significant” impact and identifies age as a factor for aggravating circumstances.

It is important to bolster our fight against elder abuse by ensuring that our courts denounce and deter offenders from committing such crimes by imposing tougher sentences.

For the reasons I have noted, I urge my colleagues in the House to give the bill their unanimous support.

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

Mr. Speaker, I would like to thank my hon. colleague for his very hard and very dedicated work on the Standing Committee on Justice and Human Rights. But I do have a question for the member.

In committee, we heard several witnesses talk about this bill in its current form. Ms. Beaulieu of the Research Chair on Mistreatment of Older Adults of the Université de Sherbrooke emphasized the importance of raising awareness among all stakeholders in the justice network to ensure that Bill C-36 has a real impact and to ensure that judges, prosecutors and police know how to respond and that they have the tools they need to interpret clauses like ones included in this bill.

This suggestion can also be found in an excellent report by the Parliamentary Committee on Palliative and Compassionate Care. It also suggested that training and education within the legal community be included in the legal measures to be implemented in the fight against elder abuse.

I would like to know what my colleague's thoughts are on that and if Bill C-36 should mention and include measures like those identified by the witnesses that appeared before the parliamentary committee I just mentioned.

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

Mr. Speaker, I thank the hon. member for her relevant question.

Obviously, in addition to stakeholders, judges, prosecutors and lawyers who are involved in the justice system and must understand this important program, social workers and nursing home workers must also be aware of elder abuse issues.

An awareness program such as the new horizons for seniors program would complement an amendment to the Criminal Code, since an amendment is not enough, in and of itself, to identify and solve elder abuse problems. In other words, we need to make the penalties harsher and also make sure that everyone knows that these problems must be reported. All stakeholders must be aware of this major issue.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I would like to ask my colleague across the way a question.

With only a small investment, we could lift seniors out of poverty, which would be the most effective way to protect them from abuse.

Why is the Conservative government not making any effort in that regard?

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

Mr. Speaker, I am not certain I understood the question, but this government has certainly been taking major steps to draw attention to elder abuse.

That is why we made an amendment to the Criminal Code, as described in Bill C-36. We also introduced the new horizons for seniors program, and ran television ads that draw attention to abuse situations, to make people understand that it is simply not acceptable to abuse their father, mother, aunt, brother or anyone in a vulnerable position.

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, I have a question for the Conservative member.

A modest investment would help lift all seniors out of poverty, which would be the most effective way to prevent them from being victims of abuse.

Why does the government not do this?

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

Mr. Speaker, elder abuse affects poor seniors and rich seniors alike.

In 30% of the cases, rich or poor, these individuals are abused by close relatives; in 30% of cases they are abused by friends; and in 30% of cases they are abused by strangers. We are taking a universal approach to this issue. The poor are not the only ones being abused; we are targeting all elder abuse, regardless of the victims' financial situation.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I listened to my colleague's speech. It is always a pleasure to work on issues with him at the Standing Committee on Justice and Human Rights.

I want to focus on the section that will be amended by Bill C-36, a section that deals with sentencing and aggravating and mitigating circumstances that must be considered by the court.

I heard his comment about the amendment that was proposed to eliminate the word “significant”, in the sense that it had a significant impact on the senior. I am not sure I understand his argument and I would like him to elaborate. In fact, the same section includes an aggravating factor, for simply committing an offence against a person under the age of 18 or domestic violence.

Why are the Conservatives refusing to see that elder abuse is an aggravating factor?

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

Mr. Speaker, all types of abuse matter. All types of abuse have an impact on the victim.

We do not want to amend the bill according to the opposition's proposal because we want to respect the principle of proportionality.

We want abuse that has a significant impact to be considered an aggravating factor. Significant abuse that has a real impact on the victim deserves a harsher sentence because of that impact. This is consistent with the proportionality of sentences under the Criminal Code, one of its main themes.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I listened to the hon. member's answer. It basically boils down to the work of judges and the latitude that they are given, which is really too bad. What we were proposing was more comprehensive coverage of the different types of elder abuse.

Why are the Conservatives stubbornly refusing to take our opinion into account? Why did they not just offer to provide more comprehensive coverage of the issue and more protection for seniors at that time?

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

Mr. Speaker, I find it odd that the hon. member uses the words “stubbornly refusing” when we are talking about respecting fundamental principles of the Criminal Code related to sentencing. The reason we rejected the amendment was because we wanted to apply consistent logic.

I have already explained that proportionality is a central theme when it comes to sentencing. This approach follows the logic of our reasoning.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague and I guess there are issues of reactive and proactive in terms of elder abuse.

One of the major concerns that we have in our caucus is the issue of fraud. With the 419 scams, senior citizens who are using online services are being targeted almost down to their specific background and family because of data breaches. Data breaches have to do with the fact that there are all kinds of third parties out there that are in the business of stealing personal information so they can target and go after people. This is how the 419 fraud is really moving into an area of frightening sophistication.

Would my hon. colleague work with the New Democrats on the recommendations that are being brought forth to ensure that the Privacy Commissioner has the tools to deal with companies that are playing fast and loose with data and that there will be consequences? Companies may not necessarily think that the data is being breached but, because of sophisticated hackers, it is and it is the senior citizens and other individuals who are being defrauded. Their information is being stolen and their credit information is being grabbed.

We need to start closing this in advance. Once that data is out there, it is not coming back. Therefore, rather than being reactive, we need to see where the problems are.

Would the hon. colleague be willing to work with the New Democrats on addressing these issues of fraud?

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

Mr. Speaker, in committee, we are always willing to work with the opposition parties to strengthen the protection for the people of Canada. Fraud for elders is a significant wrong that we want to cure and protect the public from. As members know, we also have another act that deals with white collar crime and increasing sentencing in protection of the public.

We certainly would welcome any good ideas that the NDP may have to strengthen the further protection of seniors.

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

Mr. Speaker, I am pleased to have worked on Bill C-36 with my colleagues from all parties on the Standing Committee on Justice and Human Rights. I am also pleased to rise today to discuss the testimony heard in committee during the study of the bill and to make comments.

First, I am going to briefly explain the bill and how it amends the Criminal Code. The bill is entitled “Protecting Canada's Seniors Act” and it adds the following provision:

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

This specific wording that the bill proposes to include in the Criminal Code seeks to add an element that will allow the court to take into consideration some aggravating factors related to an offence. Section 718.2 of the Criminal Code provides that “A court that imposes a sentence shall also take into consideration the following principles”. This statement is followed by a list of aggravating circumstances, including hate crimes based on factors such as the victim's ethnic origin or sexual orientation. These aggravating factors are taken into consideration to determine the sentence to be imposed. If there are aggravating circumstances, the sentence will be heavier. This section also provides that abusing a position of trust or authority is also an aggravating circumstance that must be taken into consideration.

Bill C-36 adds another aggravating circumstance, namely the victim's age and degree of vulnerability based on his or her personal situation. Here, I should point out that the victim's age is not, in itself, an aggravating factor, since age is not a vulnerability factor. However, certain acts may have a more significant impact because of the victim's age and personal situation. Here is an example.

Ms. Perka, a program supervisor of social work with the elder abuse intervention team, testified before the committee. In light of her long experience in intervention with abused seniors, she had this to say:

...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, [a member of the family, a friend, etc.]

What Ms. Perka is illustrating here is that if the victim is a senior who is particularly vulnerable because they are dependent on a friend or family member or a facility for a place to live, it may be that the abuse will make it necessary to move. Because of their financial situation and how important their social network and care network is to such a person, the consequences will be more significant for them since their options for moving to get away from the place where they have been abused are very limited.

I mentioned this aspect to illustrate the needs that care professionals identified when they called on the government to implement measures to recognize a person’s age and vulnerability as aggravating factors.

Now, what will the real effects of Bill C-36 be? This bill does provide one more tool to allow for considering a person’s age and status as aggravating factors when sentence is passed.

We hope that this will give judges the tools they need, but we still cannot be 100% sure of that. We have had some doubts, and I will come back to them later.

Of course, we hope that these additions will have those effects, and I have also illustrated why this is necessary, but what are the limitations of the effects that Bill C-36 will have?

As my colleague said a little earlier, we are talking about a “significant impact”, to use the language of the bill. It will have to be proved that the impact is significant. We do not know exactly how it will be possible to do this. Are cases going to fall through the cracks if it actually has to be proved that the impact was significant? What does “significant impact” mean? How will it be proved that the impact is significant? How far will it be necessary to go to convince the jury that the impact, considering the victim’s age, is significant? We are concerned about this and we would have liked the current government to take our concerns a little more seriously.

We have to be careful. The impact is certainly significant, but a very long and very complex judicial process has to be got through, particularly in the case of elder abuse.

Let us get back to the basics. The results of one study show that one out of five cases of elder abuse is reported and brought to the attention of care professionals, who can then take legal action. That is a very low percentage. I talked about the cause a little earlier. Not all seniors experience this. Some seniors find it very difficult to report people, because of their personal situation and their age. First, most abuse is committed by people close to them: family, caregivers or friends, and so in those cases it is very difficult for seniors to report the people who assault them.

In addition, reporting can sometimes have very serious consequences, particularly for seniors who are in situations where they are vulnerable because of their health, their finances or their housing situation. Reporting is therefore a very difficult thing to do.

Then, once the case is reported, it must be proven that an offence has been committed, which is not always easy, because elder abuse can take many forms. Furthermore, quite often, little evidence is left behind in cases of elder abuse. Consider intimidation, for example. It is sometimes difficult to prove that manipulation or intimidation has taken place. This kind of crime can be difficult to prove. But let us assume that the offence has been proven and the police have built enough of a case to make a formal complaint and bring it before the court. Then it goes to trial, and if there is no out-of-court settlement and the legal proceedings run their full course, that is where Bill C-36 will have an impact.

I am not saying that if the impact is rather minimal then it need not be taken into consideration. No. I am in favour of the goals of Bill C-36 and what it can accomplish. We must nevertheless bear in mind that, because of the procedure I just outlined, this is in no way a solution that will help most seniors who are being abused.

I would like to quote Ms. Beaulieu, who holds the Research Chair on Mistreatment of Older Adults at the Université de Sherbrooke. I quote:

We all understand that many cases of abuse may not go through all those steps. What happens to cases of abused seniors that have not made it to the end of the process? In other words, what will be the real repercussions of this measure or how many cases will be concerned?

That is just one concern in relation to the extent of the repercussions of Bill C-36. I would like to call the attention of the House to another concern. As I said a little earlier, this bill adds another element to the Criminal Code.

But do those working in the judicial system have the resources they need to effectively use this new Criminal Code provision? What do I mean by that? I will start with the police, the front-line workers who receive the complaints. For several reasons, including those I have already mentioned, there are specific factors to be taken into consideration when complaints are filed by seniors.

What should we do when we are approached by a senior who says that he has been abused? How can we file the complaint without making him afraid, ensuring that he will not give up partway through the process because he is afraid of the possible repercussions or because he is intimidated by the justice officials? We have to ask ourselves these questions. We have to implement measures to ensure that Bill C-36 has the intended result.

Next, we have to train the lawyers and the judges. How do we discern the subtleties of the repercussions of abuse on seniors?

I would like to quote Mrs. Lithwick of the Jewish General Hospital in Montreal, who regularly works with seniors who are abused. She said:

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.

Ms. Lithwick's comments validate what I am trying to explain. When one deals with a case of elder abuse, certain elements have to be taken into consideration to ensure that the process goes smoothly, that there are no adverse effects on the person who has initiated the proceedings, and that the outcome is as beneficial as possible for the victim.

I support Bill C-36. But how can we ensure that it will be effective and have the intended result? Ms. Lithwick provided some very good suggestions to that end.

I will now talk about prevention and intervention because I do not want these issues to be overlooked. When a bill is entitled the Protecting Canada’s Seniors Act, we would expect it to protect seniors. However, I have some doubts in this regard. I am not sure that “protecting” was the best choice of words here. The bill ensures that the sentence imposed on the offender is appropriate, but how does that protect seniors? I am not sure that sentencing is a way of protecting victims. There are many things that could be done to protect seniors from abuse.

I would like to once again quote some witnesses that we heard in committee while examining Bill C-36. Ms. Santos, from the Registered Nurses' Association of Ontario, said:

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.

What stands out to me is her recommendation for a “multi-faceted approach”. Susan Eng, vice-president of advocacy for CARP, said the same thing in a different way when she stated that the bill “is but one element in a comprehensive strategy needed to prevent...elder abuse.” It can be said in a number of different ways, but what it all boils down to is that a comprehensive strategy is needed.

It seems clear to me that we need a strategy against elder abuse.

Right now I get the impression we are focusing on only a few pieces of the puzzle and trying to put band-aids on gaping wounds without really knowing what the long-term impact will be or the best steps to take to achieve the best possible results.

What strategy is Bill C-36 a part of? We do not know yet. What does the government intend to do to train those in the legal system to ensure that Bill C-36 achieves its objectives? What prevention and intervention measures will be put in place to ensure that seniors who are being abused can report it, if that is what they intend to do? We do not know. A number of elements are missing: a comprehensive strategy, broad intentions, clear objectives and the means to achieve them. It is incredible that no one has received any such information on the subject to date.

Now I would like to turn to a very interesting report prepared by the Parliamentary Committee on Palliative and Compassionate Care. That committee consisted of a number of members from different parties. They prepared a very interesting report. A full chapter of the report, entitled “Elder Abuse: Canada's Hidden Crime”, is devoted to this problem. That chapter contains Canada's agenda against elder abuse. This is a specific proposal that should be analyzed by the government as an action plan, not as an isolated measure, as promising and beneficial as that might be. We need a much more comprehensive, viable and long-term vision; in other words, we need an action plan.

This proposed agenda suggests four components of an action plan. The first component concerns awareness. The idea is to ensure that people know how to recognize the signs of elder abuse, that seniors themselves can ascertain whether they are being abused and can provide information to all those who may be part of a solution. The second component concerns prevention, because information is far from enough; prevention is important too. Preventive measures can be taken, for example, by alleviating the isolation of seniors and by supporting caregivers. I could name several others. It is not enough to make sure the crime is punished once it has been committed. Precautions can be put in place before any crime is committed. Then it can truly be said that seniors are being protected. Protection must come into play before any crime is committed, not merely afterwards.

I would like to cite something very interesting that the committee said and that might connect to a debate we heard today. “The committee believes that core funding for the non-governmental sector is a cost-effective way of building needed infrastructure for the reduction of elder abuse.”

When will we see that? I can hardly wait to find out because it may really change matters. Non-profit organizations, non-governmental organizations are in the field. These are front-line workers who can determine the needs of their community and respond to them quickly and efficiently.

The third and fourth components mentioned by the committee involve developing intervention and advocacy services to ensure that people are informed of their rights and know how to report abuse and developing adequate judicial measures.

Bill C-36 may be part of the fourth component of the strategy proposed by the committee. The component concerning adequate judicial measures refers to the training of police officers and all other legal system workers.

I would like to close by describing some specific aspects of situations experienced by certain individuals and some challenges they will face. For example, there are newcomer seniors who do not speak the language, do not know their rights and perhaps do not trust the Canadian legal system. We must think of their special needs.

We must also think of the needs of LGBTT seniors, who face discrimination and are more vulnerable in certain respects.

In short, a lot of things have to be done and put in place. I remind the House that Bill C-36 is one step, but what does that step consist of? When will we see a government strategy that enables us to understand the long-term objectives?