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 officers to fail to ensure necessaries of life are provided to residents of the facilities.
The enactment also allows the court to make an order prohibiting the owners and the officers 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.

The House proceeded to the consideration of Bill C-295, An Act to amend the Criminal Code (neglect of vulnerable adults), as reported (with amendments) from the committee.

Justice, Human Rights, Public Safety and Emergency Preparedness

[Randeep Sarai, Liberal, Surrey Centre, BC]

Madam Speaker, I have the honour to present, in both official languages, the 14th report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness in relation to Bill C-295, an ct to amend the Criminal Code, neglect of vulnerable adults.

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

As I said earlier, Bill C‑295 seems to us to be a good bill. However, we would like it to take into consideration the fact that, in certain provinces and in Quebec, specific provisions were adopted to respond to the various problematic situations encountered during the pandemic. We know it wasn't easy, and it was the situation we experienced in long-term care facilities during this pandemic that brought us this bill.

So, since provisions have already been adopted in Quebec and, possibly, in other provinces, we think it would be appropriate for the court that will eventually have to consider offences to take into account the sanctions and measures that have already been imposed under provincial laws, whether those of Quebec or another province, on individuals who are accused in connection with the same events.

This would not nullify anything. It would simply mean that the judge would have to take it into account when sentencing. In Quebec, fines are provided for, among other things. So if a prison sentence were requested, for example, the fine might not be ordered, since a fine has already been paid, or the prison could be replaced by the fine. The judge will be able to decide what seems appropriate and judicious in the circumstances, but we ask that he take into account sanctions that are imposed under another law.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Yes, I'm doing that.

I am pleased to move amendment BQ‑1.

Bill C‑295 makes officers of long-term care facilities for the elderly accountable. We think this is perfectly legitimate. However, extending this concept to workers does not seem appropriate to us.

The proposed amendment speaks for itself. We propose removing managers from the list and retaining only officers and board members.

[The Vice-Chair, Conservative, Rob Moore]

We'll get started.

As you can see, our chair is not here. He was delayed. He asked me if I would serve as chair today, so I'm doing that. Hopefully, I can run as tight a ship as our normal chair does.

I welcome officials from the justice department. They will help us by answering any technical questions that members may have about the bill and about the amendments.

From the justice department, we have Matthew Taylor, who has been here many times. He is general counsel and director of the criminal law policy section. We also have Isabelle Desharnais, counsel. Welcome to you both.

We're ready to start clause-by-clause consideration of Bill C‑295, I would like to remind members of the committee of a few things. Members should note that any new amendments must be submitted in writing to the clerk of the committee. During debate on an amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

You all received the agenda and amendments package again yesterday. Now we can proceed with clause-by-clause study of the bill.

(On clause 1)

I will now call clause 1 of Bill C‑295.

First, we have BQ‑1 to deal with.

Mr. Fortin, would you like to move BQ‑1?

[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?