Bill C-295

An Act to amend the Criminal Code (neglect of vulnerable adults)

This enactment amends the Criminal Code to create an offence for long-term care facilities, their owners and their managers to fail to provide necessaries of life to residents of the facilities.
The enactment also allows the court to make an order prohibiting the owners and the managers of such facilities from being, through employment or volunteering, in charge of or in a position of trust or authority towards vulnerable adults and to consider as an aggravating factor for the purpose of sentencing the fact that an organization failed to perform the legal duty that it owed to a vulnerable adult.

[Dr. Marie Beaulieu]

Yes, certainly.

Apart from their traditional home, which they can own or rent, seniors can now find themselves in a host of congregate living settings. I think the notion of community is just as important as the notion of a care environment. In congregate settings, services are normally provided.

As a result, seniors who find themselves in private seniors' residences, either for-profit or not-for-profit, can experience situations of abuse, as I was saying earlier. They may also live in intermediate resources or in family-based resources.

Consequently, if, as seems to be the case, Bill C‑295 is limited to residential and long-term care facilities—CHSLDs in the Quebec nomenclature—I think a number of situations created by this notion of a community of care and services could be excluded.

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you very much, Mr. Chair.

I would like to thank the witnesses for being here to talk to us about Bill C‑295, which deals with the very sensitive issue of elder abuse.

Ms. Beaulieu, I had the opportunity to meet you and exchange with you in my former life, at the Université de Sherbrooke, when I was working as project manager on raising awareness of elder abuse and bullying. I thank you for what you brought to my work, and I acknowledge your expertise and your commitment.

If I understood you correctly, you said, in the second point of your presentation, that you were surprised by the fact that Bill C‑295 does not apply to private seniors' residences and does not refer to them. That could even be one of its shortcomings. Given the reality in Quebec, where seniors' living environments are becoming increasingly diverse, could you tell us more about that?

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Good afternoon, ladies. It was a pleasure to hear your summaries. I want to thank you so much not only for your attendance but also for your leadership and advocacy in this area. We are all going to be part of this aging demographic at some point in time and we need to get this right.

It's unfortunate, however, for many of you who are here that this almost feels like déjà vu. Two years ago we were talking about this issue, and this government has done nothing to advance this by way of passing its own legislation, notwithstanding a throne speech three years ago, notwithstanding mandate letters to the Minister of Justice and the minister responsible for seniors in which they were instructed to bring legislation specifically to address elder abuse across this country. They have done nothing, and it's taken a member of the Liberal caucus to bring a private member's bill.

I asked the particular member last week about why the government has not taken steps and why she did. Her response was, “Someone had to do it.” I don't think that is the appropriate approach to take given the seriousness of this issue, the seriousness of it not only to our elders but also to the industry at large.

I do want to read a couple of passages from a submission this committee received prior to today from the Canadian Association for Long Term Care. I'm going to read out various passages, and I would love to hear from all of you, or some of you, your thoughts with respect to this submission, whether you agree or you do not, and ultimately what you can recommend to those of us on this committee about how we can strengthen this particular bill. You've identified so many flaws in this bill. We really need to collectively work to improve this if we're going to make a difference in the lives of seniors.

I'll start by saying this:

The Canadian Association for Long Term Care (CALTC) is unequivocal in its support for ensuring anyone responsible for elder abuse is accountable, regardless of where and how it occurs. However, this Bill not only focuses on a singular setting, it only considers physical abuse, of which protections already exist...This legislation does not consider the emotional, psychological and financial elements of elder abuse....

...It is our position that the best way to address these gaps is for the government to develop and consult on well-considered legislation that addresses elder abuse in all its forms and in all settings.

...We urge the [government] to recommend against passing Bill C-295 and instead call on the government to introduce comprehensive elder abuse legislation in its place....

CALTC is deeply concerned that this approach is flawed and not well-considered—

That's in relation to the problems with the retention of employees.

—As outlined, the health human resources challenges in long-term care homes are already at emergency levels. By targeting the people who work on the frontlines, providing critical care to vulnerable residents, we expect this legislation to exacerbate these challenges.

Last of all, they put together a recommendation to replace the words “long-term care facilities” with “licensed health care facilities”, thereby ensuring that no matter where care is provided, it is held to the same standard. They also recommend replacing the definition of “owners and managers” with “health care professionals” to ensure that all staff, regardless of their role in providing care, are held to the same standard under the law.

That is for anyone to answer. Please go ahead.

[Marta C. Hajek, Chief Executive Officer, Elder Abuse Prevention Ontario]

Thank you very much, Mr. Chair, committee members and fellow panellists.

Thank you for today's opportunity to address the proposed amendments to the Criminal Code through Bill C-295.

My name is Marta Hajek, and I serve as the CEO of Elder Abuse Prevention Ontario. Our provincial organization is dedicated to the prevention of elder abuse. We raise public awareness through educational forums in communities, and we deliver training across all sectors that want to recognize and prevent instances of abuse and neglect.

While we are not legal experts, three decades of experience has made us experts on systemic challenges, those that hinder appropriate and coordinated responses to the silent pandemic. We work to fill the gaps in which too many older adults fall undetected and without support.

Taking action to allow for the prosecution of those with governance and executive authority over practices that lead to predatory or abusive behaviour towards vulnerable persons is good. Being held accountable would encourage owners and executives to better consider the consequences of their investment and operational choices for their clients and society. It would be welcomed.

However, the proposed amendments in Bill C-295 alone will not address those factors that lead to abuse: profit over care, which fosters chronic understaffing; and age discrimination.

Our primary concern remains. We urgently need a national elder abuse prevention strategy, a whole-of-government approach with emphasis on prevention when crafting policy and legislation as well as early detection through collective and sustained efforts.

Elder abuse prevention in Canada is fragmented. Those affected do not have equitable access to the necessary supports. Elder abuse is not a homogeneous issue. Instead it is a complex one. We should all be deeply concerned about its exponential growth.

While the intent to amend the Criminal Code is laudable and may succeed in punishing some who wilfully commit neglectful acts in long-term care settings, it will not significantly reduce instances of abuse. Wider structural reforms to the administration of justice across all jurisdictions are necessary to ensure consistent reporting and convictions. Focusing exclusively on long-term care and using age-neutral language such as “vulnerable” without additional qualifiers is akin to putting even more blinders on our system of prevention and intervention.

While 7% of older people reside in long-term care settings, 93% live at home or in the community. While the devastating Canadian Armed Forces report identified the pervasive nature of neglect and abuse in long-term care settings, instances of reported cases of elder abuse in the community rose 250%. Many more cannot or did not report abuse for fear of humiliation, reprisal, consequences to the abuser or confusion on where to even turn for help.

Elder abuse is a violation of human rights. It carries with it significant negative impacts on our public health and safety systems. Applying an ageism lens to policy considerations for the protection of vulnerable older persons prevents myopic approaches that leave many in our collective blind spots.

Most recently, Elder Abuse Prevention Ontario, as a member of the Canadian Coalition Against Ageism, joined a delegation of Canadians from civil society and government to participate in the 13th open-ended working group on aging at the United Nations. Together, our diverse voices called for the declaration of the UN convention on the rights of older persons. This binding instrument would promote and preserve the dignity, safety and security of all older persons. Canada and the world must do better, because if not now, then when?

At the same time, some Canadian jurisdictions are waiving liability for service providers who fail to provide the necessities of life or provided substandard care during the pandemic. The government, under the Charter of Rights and Freedoms, has an obligation to uphold the rights of older Canadians. This waiving is a step away from that accountability.

Inconsistencies and the lack of a comprehensive national strategy create confusion and do little to prevent neglectful practices from continuing behind closed doors. We cannot any longer allow this to remain unchecked.

Let's be clear. Let's name the issue and define it to inform better data-collection practices and support real, targeted and systemic actions. Let's work together to make sure provincial and federal laws are aligned and federal law enforcement, Crown counsels and the judiciary are better able to recognize and have those instruments to respond to elder abuse and neglect. Let's work across all jurisdictions to enforce standards to ensure that all Canadians have access to places where they can age safely and with dignity.

Finally, let's continue to work together to educate our communities and those who enforce our laws and administer justice, and to provide the supports that people need to advocate for themselves or on behalf of someone else who is unable to do so for themselves.

This is our submission. Thank you for the opportunity to speak today.

[Dr. Marie Beaulieu, Professor, Université de Sherbrooke and Research Chair on Mistreatment of Older Adults, As an Individual]

Thank you, Mr. Chair.

Good afternoon.

I'd like to thank the committee for inviting me to participate in its study on Bill C‑295, which would amend the Canadian Criminal Code by adding provisions related to the neglect of vulnerable adults.

I am here as a researcher who has been working on elder abuse and ways to combat it since 1987, so 36 years. Although I am retired from Université de Sherbrooke, I am still an adjunct professor there, as well as an adjunct researcher with the Research Chair on Mistreatment of Older Adults and the Research Centre on Aging. I am also the co‑director of a centre that works with the World Health Organization to promote senior-friendly environments and combat elder abuse. Not only have I worn many hats in this area, but I am also deeply interested in the issue.

It's not hard to guess the context underlying this bill. The COVID‑19 pandemic, specifically the way it was handled and the impact it had in two types of senior residential or care settings laid bare the organizational dysfunction, which was partly known. These places are congregate living settings for seniors that may or may not provide care and services, as well as residential care settings where both adults and seniors in vulnerable situations live. I want to stress the fact that these two settings are different, something that isn't clear in the bill. I'll come back to that. Both types of facilities employ a lot of administrators, referred to as “managers” in the proposed amendment to section 214 of the Criminal Code.

I want to make six brief points for the purposes of today's discussion.

First, the bill focuses on the organizational dimension of elder abuse or mistreatment. In doing so, it sets aside the common definition of elder abuse, which, implicitly at least, focuses on the interactions between individuals within what is presumed to be a relationship of trust. I applaud the fact that the bill addresses the role that organizations play in elder abuse, because it puts the issue in a broader context, shining a light on community, organizational and institutional dynamics.

Second, the definition of long-term care facility proposed in the bill seemingly does not include congregate living settings known as private seniors' residences in Quebec. They are places that lease accommodations solely to seniors, on a for-profit or not-for-profit basis. Seniors who live there have to be independent or semi-independent. I'd like to understand why the definition excludes those settings. It's even more surprising given that Quebec's act to combat maltreatment of seniors, CQLR c L‑6.3, was amended in the spring of 2022 to include those living settings, among other things. I think that's a discussion worth having.

Third, the bill introduces the idea of vulnerable adults, not vulnerable seniors, and I agree with that decision. Long-term care settings are indeed home to people of various ages who live there because they require the support. Nevertheless, I recommend that the bill use the term “adult in a vulnerable situation”, instead of “vulnerable adult”. When you refer to someone as being in a vulnerable situation, it means that their vulnerability is not inherent and that it may be temporary or the result of specific circumstances. In my view, the term “adult in a vulnerable situation” is both more inclusive and less stigmatizing.

Fourth, the bill focuses on a specific facet of elder abuse—neglect. While I can appreciate why that choice was made, it's important to understand that the line between neglect and violence can be very unclear at times. Keep in mind that neglect can take various forms: psychological, physical, material and financial. There is a lot of crossover with the various types of abuse.

Fifth, discussions with police officers have opened my eyes to the fact that criminal negligence is difficult to prove. Prosecutions and convictions based on those offences are few and far between, and require very specific evidence. Therefore, I would like the committee to consider the applicability of this proposed Criminal Code provision. I look forward to discussing that. What evidence is necessary in order to secure a conviction under the proposed provision?

Sixth and finally, paragraph 215(2)(b) of the Criminal Code refers to conduct that “causes or is likely to cause the health of that person to be injured permanently.” That raises questions in my mind. I wonder about the significance of the word “permanently”, because it should be enough to cause significant injury to the person, regardless of whether it's temporary or permanent.

In closing, I want to say that making these changes through the Criminal Code was a smart decision given the fact that the code applies countrywide. We all know that measures affecting health care run the risk of creating jurisdictional overlap between the provincial, territorial and federal governments.

As my colleagues in the legal field say, I respectfully submit these comments for your consideration. I look forward to our discussion.

[Isabelle Desharnais]

Section 217.1 of the Criminal Code, which flows from the Westray bill, sets out an employer's duty to its employees. Bill C-295, however, addresses the duty of the employer or manager to residents. The provisions aren't quite the same; they don't apply to the same set of circumstances.

[Andréanne Larouche, Bloc, Shefford, QC]

I want to say a big thanks to the witnesses for being here today to discuss this important bill, which deals with an issue we all care about.

I'd like a few things clarified, so I have some short questions. A moment ago, the discussion focused on the need to clarify the terms “owner” and “manager”, and I'll come back to that.

Bill C-295 is adding the definition of the term “long-term care facility” to section 214 of the Criminal Code. That definition could be problematic, however, because it does not mention the fact that those facilities come under provincial jurisdiction. Furthermore, what constitutes a long-term care facility is defined very prescriptively. The definition excludes situations where a senior makes a clear and voluntary decision to reside in such a facility when they don't necessarily lack the ability to care for themselves.

Ms. Desharnais, you talked about the difference between owners and managers. Do you see anything in how the bill defines a long-term care facility that could be problematic?

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 66 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 8, 2023, the committee is meeting in public to continue its study of Bill C-295, an act to amend the Criminal Code.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application. I'd like to make a few comments for the benefit of the witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, please click the microphone icon to activate your mike, and please mute yourself when you're not speaking.

Since I believe all members and House guests are here today, I don't have to go through the rules of Zoom and whatnot. You're all experienced with this.

For Ms. Larouche, I want to let you know the sound tests have been done and the interpretation services have been verified.

I would like to welcome our witnesses for the first hour.

From the Department of Employment and Social Development, we have Elisha Ram, senior assistant deputy minister, income security and social development. From the Department of Justice, we have Matthew Taylor, general counsel and director, and Isabelle Desharnais, counsel.

They're not going to be making any remarks, so we're going straight into questions. Hopefully, we'll get a full round in before we get our next round of witnesses.

We'll begin with six minutes for Mr. Caputo.

[Andréanne Larouche, Bloc, Shefford, QC]

That's fine, thank you.

Earlier, my first question was mainly about types of abuse. I would now like to come back to the definition of a long-term care facility. Bill C‑295 proposes the following definition: “a residential facility, or part of a residential facility, the primary purpose of which is to provide long-term accommodation, meals, assistance and care to three or more adults who reside in the facility...”.

It does contain some key words. In your opinion, is it complete or should anything be added to it?

[Andréanne Larouche, Bloc, Shefford, QC]

In the report titled “Elder Abuse: Identifying the Issue and Combatting All Types of Abuse”, published in 2021, the committee's recommendation 4 asks “that the federal government identify and implement mechanisms to protect whistleblowers in long-term care”.

Do you believe that Bill C‑295 will help whistleblowers such as employees file complaints about elder abuse?

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you very much, Mr. Chair.

I thank the three witnesses for being here today.

I will also take a moment to recognize National Nursing Week. This concerns today's witnesses. Nurses are doing an outstanding job.

To follow up on what Mr. Lake said in response to a question, I remain convinced that it is not just health care for seniors that is underfunded, but all health care in general in Canada. That is why I am making a heartfelt plea and, in solidarity with nurses, I continue to call for an increase in health transfers. This is one of the Bloc Québécois' positions, and today's topic is directly related to this increase. We have talked about the importance of the increase we are calling for to bring the federal share of funding up to 35%. We can't think about better funding and better support for staff if we don't also think about better support and more financial resources for the health care system.

That was my little introduction.

I would now like to turn to Ms. Hall.

In response to some questions, you said that Bill C‑295 targeted only specific types of facilities and, therefore, did not meet all the needs in terms of abuse. Abuse does not occur only in long-term care facilities or in one type of residence. We are also seeing a diversification of the types of places where seniors live, and we must take that into account when we talk about abuse. I know that in Quebec, in particular, there is a lot of scrutiny of home care.

You also say in your brief that Bill C‑295 targets only one specific type of abuse—physical abuse—while there are many other types of abuse, including financial abuse and emotional abuse.

Could you comment on the shortcomings of Bill C‑295 in this regard and on the measures that could be taken?

[Jodi Hall]

We remain deeply concerned about the overall scope and impact of Bill C-295 as presented. We feel that many of these challenges are already addressed within provincial legislation and within the Criminal Code as it exists today.

Certainly moving away from this legislation would be our first choice. Second to that, if the committee is putting this bill through, we would ask that they reconsider the definition of “manager”, in that it's specific only to the long-term care manager, as well as the definition of “long-term care facility”. We would recommend that they apply more broadly across the health care system.

For us, when we consider that the intent of this bill is to address elder abuse and that very similar staff would be providing very similar care in a hospital setting, for example, why would this legislation only target elder abuse that would be present in a long-term care environment and not in a hospital setting?

As for recommendations for amendments, it would be to focus on those areas and broaden out the setting and the professionals that the bill would apply to.

[Jodi Hall, Chief Executive Officer, Canadian Association for Long Term Care]

Members of the committee, I want to start by thanking you for inviting me to appear before you today to discuss Canada’s long-term care sector.

My name is Jodi Hall, and I am the CEO of the Canadian Association for Long Term Care. CALTC is committed to ensuring quality long-term care for all, and we advocate on behalf of seniors in long-term care homes and our members. Our members include many of the provincial long-term care associations and a range of long-term care operators from non-profit, faith-based, and private corporations.

CALTC appreciates that the spirit of the proposed bill is to protect vulnerable adults, and we support the introduction of legislation that would address elder abuse in Canada. However, the bill before the committee does not accomplish that. If it were to pass in its current form, I believe it is likely to have a devastating impact on the long-term care sector throughout the country.

Long-term care homes are currently facing a number of issues that impact their ability to be sustainable. First, the health human resources crisis is a critical challenge. The latest data from Statistics Canada from the final quarter of 2022 notes that there are over 38,000 vacant positions in Canada in long-term care homes. This is more than double the number of vacancies in 2019.

Provinces are making investments in long-term care, and the leadership and frontline teams in long-term care homes remain dedicated to providing high-quality resident care every day. However, they are doing so with limited resources, and many are in homes that have aging infrastructure.

Our sector needs support. We face significant, systemic issues, including widespread staffing shortages, aging infrastructure and chronic underfunding. These are not new issues. Decades of underinvestment laid the foundation for the perfect storm, which painfully played out through the pandemic and has left homes to continue to struggle today.

In the last election, the government committed to investing $9 billion in long-term care over five years. Unfortunately, we are still waiting for that commitment to be realized. These investments could be used to help support the recruitment of staff, to increase our standards of care and to invest in the much-needed infrastructure that's required.

While long-term care has received more attention as of late, we have not, as a country, come together to talk about creating a sustainable long-term care sector. In the next 15 years, there will be another 10 million seniors in Canada. We need to address the questions around long-term care sustainability, but today we are here to address Bill C-295.

CALTC members are unequivocal in our denunciation of elder abuse in all forms. This bill that has the potential to have a devastating impact on long-term care homes while not addressing the multi-faceted considerations that are needed for elder abuse legislation in Canada.

As well, “manager” is so broadly defined within this bill that it includes almost all long-term care staff. As it stands, this bill focuses on employees in long-term care and only in long-term care, as other settings—for example, a hospital—that provide similar care with similar employees, often to those who are waiting to be admitted to a long-term care home, are not noted.

We believe that this will further increase the challenges around recruitment and retention. Creating further obstacles to recruitment and retention for long-term care is not the way to improve quality or safety in the homes.

All levels of government have the opportunity to work with the long-term care sector to build a resilient path forward. Unfortunately, I believe the bill as presented does not take advantage of that opportunity. Moving forward, the government should launch inclusive consultations with long-term care residents, families, providers and others in the health care system to identify existing gaps in elder abuse protections and how best to effectively address them without causing unintentional impacts, as this private member’s bill will do.

If the committee should choose to proceed with the bill, we ask that at the very least the scope of the bill be not limited to long-term care facilities and long-term care managers but be refocused on all health care settings and all health care professionals so as to not result in inequities in recruitment and retention being directed at long-term care homes alone.

I thank you for the opportunity to speak, and I'm happy to take questions.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 65 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 8, 2023, the committee is meeting in public to continue its study on Bill C-295, an act to amend the Criminal Code.

Today's meeting is taking place in hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person and remotely by using the Zoom application.

I'd like to make a few comments for the benefit of witnesses and members.

Please wait till I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation, those who are on Zoom have the choice at the bottom of your screen of floor, English or French. Please adjust to the desired setting now. Those in the room can use the earpiece and select the desired channel.

I remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

Now I would like to welcome our witnesses, who are all appearing by video conference today.

First we have, from BC Care Providers Association, Terry Lake, chief executive officer—

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

That's fair enough.

You highlighted that there's a new definition for “long-term care facility” and a definition for “manager”, but there's no definition in Bill C-295 for owner, yet owners—whatever or whoever that might be—could be criminally charged.

Wouldn't your legislation be improved by having a clear and concise definition of who an owner of a care facility is?