Justice Committee on Sept. 27th, 2012

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

Thank you, Mr. Chair.

I would like to thank the witnesses for joining us and for helping us with our work.

I listened carefully to the minister's answers. I believe that everyone has agreed that this bill has a relatively limited scope. That does not mean that it is a bad bill, but we have to be aware of its inherent limitations. I am not sure if you will be able to help me, but I cannot help but consider the full impact of implementing this bill. That is sort of my area of expertise.

At the Standing Committee on the Status of Women, we have heard that it is difficult for police forces and the justice system to handle cases of elder abuse. Although the current provisions in the Criminal Code make it to an extent possible to take legal action, those people face a number of challenges.

Could you provide the committee with some assurance that the bill will improve the situation in cases that will ultimately be brought before the justice system by police forces and will ensure that sentences are imposed when warranted?

[Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you.

Good afternoon, everyone.

Yes, we have looked at that aspect of the bill and its impact. As it has been said earlier in committee, courts were handling it to a certain extent. By clearly specifying it in the Criminal Code, it will be possible not only to recognize this practice before the courts, but also to ensure that this type of aggravating factor will be taken into account in all cases. As you know or as you may suspect, in the sentencing regime, an aggravating factor makes it possible to increase the sentence. So by specifying this in the Criminal Code, attention would be paid to aggravating circumstances in all cases.

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

We obviously agree that this will depend on the application before the courts, but, once again, abuse cases must be brought before the courts. Police forces, in particular, have said how powerless they felt. We were even told that some officers did not always see elder abuse as a criminal act.

I am not sure what the department could do to try and correct the situation, to support the police forces and to ensure that this bill is implemented.

[Matthias Villetorte]

You are absolutely right. Cases of elder abuse vary: they can be considered both criminal and non-criminal acts. I believe that everyone agrees that raising awareness of elder abuse is a major step in detecting cases and bringing them before the courts when they are clear cases of abuse.

As the Minister of Justice said earlier, there are awareness and education initiatives on legal matters, including rights, opportunities and available resources. The goal is to inform and educate the public about what elder abuse means, but also to indicate what resources are available to seniors to bring the cases before...

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

Mr. Villetorte, I wanted to talk about police forces in particular.

What additional resources are we going to be able to give them?

[Matthias Villetorte]

This goes somewhat beyond the scope of the Criminal Code, but I can talk about the crime victims assistance fund, for example. The fund has been used for organizing an awareness week with a view to educating the public about the realities of victims of crime. During that week, the elder abuse response team from Calgary was there. Representatives from the City of Calgary were asked to contribute. They have a police service that pays particular attention to those types of abuse cases. I have also heard that Ottawa has a police section that handles those cases. We are talking about finding a balance between raising awareness and providing support to victims in those cases.

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

A few years ago, a wonderful organization called L'Autre Avenue was founded in my constituency. It has since moved to the neighbouring riding of Charlesbourg—Haute-Saint-Charles, but it operates everywhere in Quebec City. L'Autre Avenue provides an alternative for going to court.

In his consultations with the provinces and other stakeholders, has the minister considered finding ways to come up with those types of alternatives? Let me quickly explain. For example, L'Autre Avenue gives police officers the possibility to avoid legal action when petty crimes are committed by young people. That enables the young person to make reparation to their victim, for example.

[Matthias Villetorte]

That is a great point. In fact, over the next few days, you will see on the website of the Department of Justice that a study was conducted, as a result of one of the initiatives that the Minister of Justice mentioned. The study will be public and a copy can be forwarded to this committee, if you wish. The study looks at mediation in those types of cases. It shows various models and it actually supports that type of approach so that incidents and conflicts related to abuse do not escalate. It is a good reference material. This aspect is taken into account. We have to make an effort to adopt this type of approach.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

The Edmonton elder abuse team has been invited to the committee.

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to the witnesses for your attendance and your expertise.

Following up with a question that was asked by our colleague, Ms. Boivin, I'm curious as to why the non-decision was made to put a chronological age in the legislation. As you know, with respect to certain provisions of the act, it's an aggravating factor when the victim or the person being abused is under the age of 18.

I'm curious as to why a specific chronological age wasn't used for the protection of elders.

[Matthias Villetorte]

Thank you for your question. The minister has already answered this question, but I will say that the chronological age of 18 is accepted in terms of it being clear-cut and everybody understanding why it is. It's quite different in the elder abuse context, where a chronological age is not as clear-cut.

In fact, as the minister said, there are quite a few federal statutes that do mention a chronological age and that look at issues such as pension, retirement. They use different chronological ages. The fact of not specifying a chronological age would permit a court to assess the facts of a situation and determine whether the combination of age and other personal circumstances would fit in—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So it's made to accommodate a situation where a person may not technically be a senior citizen, but they might have early onset dementia, and therefore it's contemplated that this type of individual would be covered by the protection afforded in this legislation.

Is my understanding correct?

[Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

If I could answer, it might help to think about the existing aggravating factor that refers to young persons under the age of 18. While there will be differences for young persons, clearly developmentally there are some clear milestones for persons under that age. Most kids fall within that, though there is some variation.

The same can't be said for older persons. At a certain age chronologically, your capacity, vulnerability, is X, whereas based on a developmental capacity for children, you can come to some clear-cut understandings.

There is a distinction there. I think the question earlier was why the age is 18 for children. It does reflect some very clear and recognized capacity issues for persons under that age. You don't have the ability to draw the same line in the sand, categorically, for all persons at an older age.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I accept that, and I think that's a good answer, but my technical concern—and maybe I'm missing something—is that the word “elder” or the word “senior” is absent from this proposed statute. It's “age and other personal circumstances”.

So, at least theoretically, a very young person who might be suffering from some sort of mental challenge or mental disability presumably could fall into the definition of someone whose age and personal circumstances require protection. That's slightly counterintuitive under a statute that's called Protecting Canada's Seniors Act.

[Matthias Villetorte]

You're right, that could technically apply in situations that are not necessarily perceived as being elder abuse. However, it has to be the combination of age and other personal circumstances. Therefore, logic would apply in cases where the victim is an elderly person. To that extent, as long as the combination of age and other personal circumstances do apply, it would favour an application for older victims, if you want, rather than a 30-year-old with some health problems.

In addition, other aggravating factors would cover those situations. If we read the list of aggravating factors, one would expect that elder abuse situations would be covered by that aggravating factor.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Just so we're clear, the purpose of this act is not to provide extra protection as an aggravating factor to somebody who you have suggested might be 30 years of age and suffering from a mental disability. That's not contemplated in the drafting of this legislation.

[Matthias Villetorte]

No, the legislation really is focused, short of setting a chronological age, on addressing those cases of elder abuse. So, yes, the aim of the legislation....

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Do you know if the drafters considered the individual I just described might be caught up in that definition?

[Matthias Villetorte]

Yes. Again, technically, it could apply to situations that don't necessarily appear as such at first. Again, to the prior facts, a sentencing court will have to balance the facts of the case and come to a justification of the application by an aggravating factor.

There is a record of that. If you read it with other aggravating factors that are there in all elder abuse cases, this aggravating factor will apply.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

I still have a few quick questions. We are still talking about a bill that amends the Criminal Code.

The minister talked about it a little bit, but since we have bright people from the Department of Justice here with us, I would like them to tell us how the proposed amendment to paragraph 718.2(a) is linked to section 380 and the subsequent sections that deal with fraud.

The minister mentioned it. He specifically talked about the so-called white collar crime. The legislation already specifies age as an aggravating circumstance. Age is already considered a factor under section 380.1.

During the work of this committee, I sometimes feel that we repeat ourselves. But I also know that you can never be too careful. It is possible that the proposed paragraph 718.2(a) does not go against section 380 and the subsequent sections, but it still refers to the impact on the financial situation and the age as well. What is the impact of those two provisions combined?

[Matthias Villetorte]

Those two provisions—the one in the bill and the one in section 380.1 of the Criminal Code—are not in conflict. As you know, the aggravating provision in section 380.1 has to do with fraud

The aggravating circumstance proposed in Bill C-36 is intended to be applied generally. So it would apply to all the other cases, except fraud, since cases of fraud already constitute a specific aggravating circumstance. Why was “financial situation” mentioned in this case when we have an aggravating circumstance? It is to address all the other offences that could affect a person's financial situation and that would not be covered under section 380.1, such as theft over $5,000.

To some extent, all elder abuse situations would be covered, even if it was fraud, under section 380.1 or the provision in Bill C-36.

[Françoise Boivin, NDP, Gatineau, QC]

You did the analysis before you prepared the text. The minister was telling us that there are still some situations... We are talking about updating the Criminal Code. The intent is to adapt it a bit more to the year 2012 and to draw on case law. Can you tell us today whether the issue of age was a problem? Was age not considered an aggravating circumstance or, on the contrary, is this simply going to reflect what courts already do anyway?

[Matthias Villetorte]

It is a bit difficult to give you a clear answer. When it is reported in case law, we know that it is reported and taken into consideration. To some extent, it really has to do with going back to case law and the current practice of taking into consideration the impact and age combined. We take into consideration the impact and another personal circumstance as an aggravating factor when determining the sentence.

I looked through the case law and I saw many cases. I noticed that, when courts take this into consideration, there is no debate as they are dealing with an advanced age. We are talking about 75, 80 or 90 years, but there is more than that to it. The issue is a bit broader. That is why it has to do with recognizing the current practice. However, the cases to which it applies have to be clearly defined, not just when the victim is 80 or 90 years old.