Justice Committee on Sept. 27th, 2012

[The Chair, Conservative, Dave MacKenzie]

I'd like to call this meeting to order. It is meeting 42 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, June 20, 2012, we have Bill C-36, An Act to amend the Criminal Code (elder abuse).

Today we have appearing before us the Honourable Rob Nicholson, Minister of Justice and the Attorney General of Canada. With the minister is Carole Morency, acting director general and senior general counsel with the Criminal Law Policy Section from the Department of Justice. Welcome to you both.

Minister, I understand your time is limited to one hour with us, and we're disappointed you couldn't stay longer, but we recognize that. If you have an opening address on this matter, please go ahead.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chairman. It's an honour to have an opportunity to appear before the committee to present Bill C-36, the Protecting Canada's Seniors Act.

The government is committed to protecting elderly Canadians and to ensure that crimes committed against them are punished appropriately. Seniors are becoming an increasingly larger segment of Canadian society. In 2010 there were 4.8 million people aged 65 years and older, representing 14.1% of the Canadian population. The number of people in this age bracket is expected to exceed 10 million people by 2036, which will be almost 25% of the Canadian population.

This phenomenon is resulting in an increase in cases of elder abuse, whether physical or psychological abuse, financial exploitation, or negligence. This is why the government is committed to specifically describing as an aggravating factor for sentencing purposes the fact that an offence has had a significant impact on victims because of their age and any other aspect of their personal situation, including their health and financial situation. This is exactly the provision that is contained in Bill C-36.

The proposed amendment to the Criminal Code takes several things into account. First, it acknowledges that the impacts are not always primarily related to the victim's age; rather, it's a combination of characteristics of the victim, such as the victim's health or a physical disability. It is this combination of age and personal factors that determines the severity of the impact of this offence on an elderly person who is a victim of abuse.

Second, the proposed measure complements the existing provisions of the Criminal Code that apply in cases of elder abuse. For example, the Criminal Code specifically identifies as aggravating circumstances the fact that an offence was motivated by bias, prejudice, or hate. This is based on factors such as age, mental or physical disability—subparagraph 718.2—or evidence that the offender abused a position of trust or authority in relation to the victim, in addition to the Standing up for Victims of White Collar Crime Act, which you will remember came into force on November 1, 2011, which also provides as an aggravating circumstance of the offence of fraud the fact that the offence has had a significant impact on the victims “given their personal circumstances including their age, health and financial situation”. Bill C-36 reflects the approach of our courts in treating the impacts of an indictable offence against seniors as an aggravating factor. It also gives more weight to the objectives of denunciation and deterrence in these cases. Therefore, the addition of the proposed aggravating factor would ensure that various circumstances in which offences are committed against seniors are always treated as aggravating factors.

Mr. Chair, we've heard the opposition parties criticize Bill C-36 as not going far enough to fight elder abuse, but I can assure them that the government does not view this legislation as being the only solution to the problem of elder abuse. Rather, we see it as a complement to our government's efforts and to those of the provinces and territories.

For several years the federal government has invested resources in assisting the victims of crime. The federal victims strategy, which was implemented in 2007, has the objective to give victims, including elderly victims, a more effective voice in the criminal justice system. Moreover, Budget 2011 renewed the federal victims strategy and committed $13 million per year in funding.

Budget 2012 builds on this funding by adding $7 million over five years. It's also important to point out that most of this funding is dedicated to the victims fund. As you may know, the victims fund is a grants and contributions program that provides funding to provinces, territories, and non-governmental organizations. It enables many stakeholders to organize activities and raise awareness of services and laws that deal with elder abuse. The Elder Abuse Response Team is an example of this. In 2012, they brought together the Kerby Centre, the Calgary Family Services Society, and the Calgary Police Service to investigate cases of elder abuse and provide support to victims. This was possible because of funding provided by the victims fund.

In 2008 we launched the federal elder abuse initiative, a successful $13 million, multi-departmental initiative. Its goal was to help seniors and others recognize the signs and symptoms of elder abuse and provide information and available supports.

Another example of the federal government's efforts to raise national awareness of the subject is the “Elder Abuse - It’s Time to Face the Reality” campaign. This campaign was launched in 2009 and was part of the federal elder abuse initiative. You may remember the advertisements on this that aired in 2009, 2010, and earlier this year.

In addition, our government also addresses elder abuse through the new horizons for seniors program. We recently increased the budget's program by $10 million, for a total of $45 million per year.

As we heard during the second reading of this bill, as part of the continuing efforts after the federal elder abuse initiative, the information it gathered remains available to anyone seeking information on this subject.

It's important to note that certain areas in the fight against elder abuse fall exclusively, of course, within provincial jurisdiction, either through laws of general application, such as legislation targeting family violence, or through more specific laws. For example, health services is an area in which many provinces have enacted legislation to fight elder abuse in health care institutions.

These efforts reflect our government's acknowledgement that the preferred approach to fight elder abuse requires the participation of not only the federal government, but of course the provinces and territories.

For our part, this bill will ensure that the objectives of denunciation and deterrence are paramount sentencing considerations when crimes against the elderly are committed.

The proposed amendment is not intended to be a simple stand-alone response to elder abuse, as I have indicated. Instead, it serves as a complement to all the efforts being made by this government to protect elderly Canadians and to ensure there are sentences for those who take advantage of vulnerable members in our society.

Thank you for this opportunity, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister. We appreciate the opening comments.

Now we begin the rounds. Just as a reminder—we've been gone for a little while—the opening rounds are seven minutes per party, and from that point on they're five minutes for each member.

We begin with Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Mr. Minister, thank you for going over Bill C-36 with us. It is refreshing.

It's a good thing to finally have a bill on which I think we will all be working on the same page. Just that fact is good, believe me, and a good change of pace. It doesn't mean that it's always going to be like this—don't put your hopes too high—but at least on this one....

It's a paragraph that is added to the Criminal Code.

This additional paragraph is a very important concept, which says what it needs to say. The title, Protecting Canada's Seniors Act, implies a host of things. And it is only one section.

I believe you said that it is not a panacea in itself. I don't think that anyone around this table claims that it will fix all the problems facing our seniors here in Canada.

I would also like to acknowledge the outstanding work accomplished by my colleague Ms. Blanchette-Lamothe. I thank her for joining our committee for the study of Bill C-36. She does an amazing job for seniors. So I would like to welcome and thank Lysane Blanchette-Lamothe.

I have a question for you, Mr. Minister. Section 718.2 deals with the principles of sentencing. As an aside, I would just like to say that it is a relief not to have to talk about minimum sentences, but instead to talk about the fact that courts have to look at each case to determine the fairest sentence. The section reads as follows:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ...

Various items follow, among which subparagraph 718.2(a)(ii.1) that says:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years ...

As a result, when it comes to the offence and aggravating or mitigating circumstances, age is a factor. The idea now is to add subparagraph 718.2(a)(iii.1) that reads as follows:

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation ...

Why is there a distinction made for young people? It is directly referring to the aggravating or mitigating impact of age per se, but when it comes to seniors, there needs to be more evidence than just the age.

Is it because we are unable to establish what a senior is and the age when one becomes a senior? I am not sure. That is the only question that came to my mind as I was reading the proposed subparagraph. We are in fact still going to be required to be able to demonstrate a significant impact. We cannot walk out of this room and say that the simple fact of committing a criminal offence against a senior is an aggravating or mitigating circumstance. There has to have been an impact. Could you tell me why this choice has been made in this particular context?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, and thank you for your participation in the selection panel for the Supreme Court. I hope it was a fulfilling and worthwhile exercise for you. My understanding is that it was, and I wanted to publicly thank you for your participation in that.

You've pointed out a number of elements with respect to the aggravating circumstances sections of the Criminal Code. You pointed out, quite correctly, that there are special aggravating circumstances for individuals under the age of 18, for children, for people who abuse children or commit crimes against children, that it is a specific aggravating offence. Certainly use of the term “under 18” is consistent with youth criminal justice and basically our accepted definition of who is or who is not a child in this country. So it's consistent on that.

With respect to the provisions with respect to older Canadians, it's interesting that when you have a look at all federal legislation, you'll see that what we might consider the age of being a senior is all over the place. In the judicial community judges may retire at 75, so they become an older person at age 75—or is it 60, 65, 67?

What they tell me is that when people are abused, one of the factors is their age. It comes in combination with something else. There may be a physical or a mental attribute that goes with this that makes the person more vulnerable. You might have a situation where somebody is in wonderful health at 75 and is not suffering from any apparent disability, whereas you could have somebody 10 years younger than that whose either mental or physical abilities have considerably declined.

When we had a look at it, it seemed to me we were farther ahead by not putting down a specific age in which this would kick in, and that we would put it as we have put it there, that it's in combination with the person's age and some other element, and it should be an aggravating factor.

The important point for us, though, and it shows the increasing concern society has with respect to elderly people by mentioning it as an aggravating factor, is a recognition that what I think most of us are told when we go across this country and when we go back to our constituency, that this is a problem or it can be a problem. And particularly with the increasing age of Canada's population, I think it's a recognition of that to make the specific reference to it.

Generally, that's what they tell me. It's in combination with something else. I thought that was an appropriate way to phrase it for the Criminal Code.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister. You are right on time.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

Thank you, Minister and Ms. Morency, for being here with us today.

I am glad to hear you say that the definition of senior is all over the map, Minister. I had a conversation with someone yesterday who was describing an elderly women. I said, “From your perspective, in your mid-30s, what are we talking about?” When he said mid-70s, I felt much better.

Minister, in our Speech from the Throne of June 3 of last year, we committed to protecting the most vulnerable in society and to working to prevent crime by proposing, among other things, tougher sentences for those who abuse seniors. This is something I feel strongly about, having been very involved in elder care for both of my parents, who have now passed away. I know this echoes our government's platform to amend the Criminal Code, as we are suggesting here today.

You mentioned the new horizons for seniors program. I know that additional funds were announced in both budgets, in both 2010 and 2011, for annual funding of about $45 million, to include projects to raise awareness of financial abuse.

What I am wondering about and wanted to ask you to address today is, first of all, how common you feel elder abuse is in this country. Do you know how often seniors are abused and by whom? Also, when we speak of abuse, some people assume that it means physical and others assume that it means financial. What do we mean by the term?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The statistics we have from 2009 are that there are approximately 7,900 reports of abuse of seniors in this country. It's interesting, the breakdown you get on this. Approximately a third of the abuse was committed, or was alleged to have been committed, by family members. About another third was by a friend or a friend of the family. Another third was by strangers. From my discussions with victims groups, law enforcement agents, and people involved in this area, it's growing, and it will continue to grow. The statistics alone tell us that. With the increase in the seniors population in Canada, this is going to be more of a challenge.

Men and women are victimized in approximately equal numbers in a number of the categories. That being said, there is a greater awareness of it, which is one of the positive things about this. People are talking about it more. I have appreciated and certainly support government efforts to advertise this to make sure that funds are getting out so that there is a greater awareness of this particular challenge.

Again, 20 or 30 years ago, people would think that if you were a victim of crime...many times you'd think of it as being a stranger or somebody breaking into your house and that sort of thing. Well, very often these are people who may be in very close contact with you. That being said, I have heard of many instances of strangers targeting elderly people and taking advantage of people who they hear are having difficulty.

One of the initiatives I was here about before, as you know, was on white collar crime. We made specific reference that it is one of the aggravating factors there. If the individual is an older person, the effect of losing that money can be devastating, as you know, to somebody who may or may not lose his or her life savings.

Again, it's a growing problem, from everything I hear. Statistically, they tell us that with the increase in the seniors population, this is a continuing concern. This is why I think, at this time, it's appropriate to put this in and specifically recognize it in the Criminal Code as one of the aggravating terms.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

Is there any more time?

[The Chair, Conservative, Dave MacKenzie]

You have three minutes.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Minister, you said that the information is that it's about 50-50 for men and women. I think a lot of us tend to assume that perhaps older women are taken advantage of more often, maybe because, generally speaking, women tend to live longer than men, although I think that is changing as well. Would that be something seen across the country? Are there regional differences at all?

[Rob Nicholson, Conservative, Niagara Falls, ON]

When you get into the breakdown—and you may hear this from some of the other witnesses—men are more likely to be victimized in slightly more numbers overall. If you get into the categories of family-related elder abuse, women outnumber men in that particular area. Depending on which aspect of this you're looking at, you'll get a slightly different configuration.

That being said, there is a recognition in Canada that this is increasing, so we've already taken steps, as you know, with respect to white collar crime, as I just mentioned. To the extent that we, along with this and other initiatives, are working with provinces and non-governmental organizations to encourage people to apply for the victims fund, for instance, to help raise awareness of these issues, I think we're all farther ahead on that. Again, you'll hear others who I'm sure will have a very extensive breakdown as to where and who is being abused.

As I say, it's basically one-third, one-third, one-third. The stereotype you may have thought of 20 or 30 years ago, with the stranger who is abusing a senior citizen or beating up somebody doesn't quite fit the description of what's happening in Canada. Approximately two-thirds are either by family members or so-called friends of the family.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler, welcome.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

I'm sure you've heard, but in your absence your friends made you vice-chair of the committee. Congratulations.

[Irwin Cotler, Liberal, Mount Royal, QC]

I don't know if that was to welcome me or to burden me, Mr. Chairman, but I appreciate the support.

Minister, as you know, the Parliamentary Committee on Palliative and Compassionate Care issued a report entitled Not to be Forgotten: Care of Vulnerable Canadians. The report included a host of recommendations for combatting elder abuse. In particular it discussed strategies for addressing the problem of elder abuse, and that the vast majority of such cases never make it to a court of law. This legislation, in that sense, will underpin that concern.

Among other things, the report called for better training for legal professionals and law enforcement officers in how to identify and prosecute elder abuse, establishment of special courts for elder abuse as exist for other incidents of family abuse, and the tailoring of the existing court system to make it more amenable to seniors.

Minister, could you share with us if these measures are otherwise being considered by the government? If so, is there a reason they were not referenced in this legislation?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The legislation is very specific. As I indicated in my opening remarks, it's not the complete picture of what we are doing to assist elderly people in this country. I pointed out that the other legislation we had on white collar crime is a good example. The encouragement of the Government of Canada to have seniors and those working with them apply under the victims fund, the initiatives we have taken, the advertising campaign—all these are part of that.

I'm glad you mentioned it. I know that report did mention the role that law enforcement and the legal profession have in this. One thing I have done when I have spoken with members of the legal profession...it is the responsibility all of us have as lawyers to do what we can, either to intervene or to bring attention to this. You and others who practise private law, for instance, do come into contact with seniors. We do see examples where people try to take advantage of them.

I think I gave you this example one other time I was at the committee. I used to give my business card to my clients. I used to tell them if somebody tried to sell them something over the phone, they should ask them to call me. I said I'd be glad to look over it. If the person objects to your lawyer having a look at this, then you know there's something wrong. If you have a legitimate product or whatever it is you're trying to sell, and a lawyer's going to have a look at it, you'd welcome that, wouldn't you, if you were legitimate? If they have a problem with that, I always used to say to my clients, be very careful of that.

Again, we in the legal profession do, I believe, have a responsibility. Many times we do get involved. We see these things. Even within families you see situations where people look as if they may be taking advantage of an elderly member of the family, be that through estate planning, those sorts of things. I think we can play a very critical role, so I was glad to see that in there.

We have no plans to start setting up separate courts with respect to this, in answer to your direct question. It will be dealt with according to the existing judicial system. In addition to that, we are very supportive of those initiatives that, as you indicated, may be outside the court system, to either raise awareness, to get help to people, to get people to intervene on these things. Yes, we all have a responsibility. Certainly we in the legal profession have a great role to play.

[Irwin Cotler, Liberal, Mount Royal, QC]

Minister, there has also been a particular concern expressed about the victimization of elder aboriginal women. There have been a significant number of elderly aboriginal women who in fact have been affected by violent victimization. Often it is by somebody they know, which makes them even more reluctant to report and bring a complaint. Is that particular issue being addressed separately and in a distinguishable fashion?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, that's a very good point.

My colleague, the Minister of Aboriginal Affairs and Northern Development, is supportive of all initiatives to raise awareness among aboriginal families on the subject of violence.

I'm here specifically with respect to elderly people. But again, this applies to all individuals. The victims funds are open to all, but I know that there is specific funding within aboriginal affairs. My colleague would probably be in a better position to outline that for you.

You're quite correct. You make the point, as well, which I think is critical, that many times, the abuse isn't coming from somebody, as in my example of the salesman, who's trying to sell you something over the phone. It is coming within the family setting and from people very close. Again, we all have a stake in that.

Certainly one component is changing the criminal law so that this applies to everyone who does this. But again, there are other programs that basically apply to others, and I know this is a concern of aboriginal affairs as well.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Minister.

I want to share what my colleague, Madam Boivin, said, which is that this is something for which there is shared support on this committee. It's good to work on something we can hope to address through improving and refining, rather than having an adversarial situation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You make a very good point, Mr. Cotler.

Many times what we have to do with the Criminal Code is make sure that it's modernized and updated to reflect what actually happens in Canadian society. I've been before committees many times over the years, and you've experienced the same thing. The Criminal Code, as it was written or compiled in the 1890s, doesn't reflect exactly what's going on in Canadian society. So we continuously have to look at the provisions to make sure that they reflect what we know today.

In a Canadian society that has many more elderly people, and a much greater percentage than this country has ever seen, I think it's reasonable that we move forward and put in specific provisions. I think it is our responsibility as legislators to make sure that the Criminal Code doesn't get stuck in a particular era but continues to reflect what's actually happening in this country.

I think that's an excellent point. Thank you for it.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean, you have five minutes.

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

Thank you, Mr. Chair.

Minister, thank you so much for attending today and taking time out of your busy schedule.

I'm a little bit curious about the situation regarding aggravating factors. I notice that it appears that there are some new aggravating factors and certainly some that would change what currently exists in the law, especially regarding the current aggravating factors found in the Criminal Code. Could you comment, in general terms, on some of the new aggravating factors and how they fit in with the existing ones?