Ladies and gentlemen members of the parliamentary committee, good afternoon.
Thank you for the opportunity to participate in your work from afar, thanks to the technology that connects the Université de Sherbrooke to Ottawa. I appreciate modern means of communication.
As the Research Chair on Mistreatment of Older Adults, I am very happy to speak to Bill C-36. Allow me to introduce the chair and tell you about my professional background before I go ahead with my comments.
The Research Chair on Mistreatment of Older Adults was created in November 2010, for a five-year period ending in October 2015, as part of Quebec government's action plan to prevent senior abuse.
According to the International Network for the Prevention of Elder Abuse, Inc., which I represent in North America, this is the only research chair of its kind worldwide. The chair has five goals, including the dissemination of research results to various communities. My presentation is set against that backdrop and based on over 25 years of research practice in the area of elder abuse.
I want to thank the federal government for its concern about the mistreatment of seniors. That social problem deserves attention for various reasons. I will state two main reasons.
The first is the increasing proportion of seniors in the Canadian population. According to Statistics Canada, elderly people made up 14.9% of Canadians in 2012, but it is projected that, within 25 years, one person out of four will be a senior. That figure alone is reason enough for us to look into this.
The second reason is that the response to the needs of abused seniors and their abusers fluctuates greatly from one region to another of Canada. We need knowledge, regulatory and legislative frameworks, and practical guidelines. Your actions are headed in that direction.
The step we are currently taking has to do with the Criminal Code of Canada. More specifically, I am talking about our legislators's option that is currently being studied—the sentencing. I want to begin by saying that I cannot see anyone being opposed to what is proposed. Nevertheless, you will not be surprised to hear that I have some comments to share with you. I divided my comments into two categories. I will begin with the wording of the amendments, and then I will discuss their application.
The proposed subparagraph is set out 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,
I want to begin by commending the legislator for not introducing the notion of vulnerability in the wording. I have been fighting for many years to disprove the incorrect theory that being elderly necessarily leads to being vulnerable, which in turn leads to being abused. I want to break that connection made all too quickly between age, vulnerability and abuse, as everyone will be afraid of aging if abuse becomes an inevitable consequence. In addition, the individual diversity among people from 65 to 100 years old—or even between two 75-year-old individuals—is so great that designating that group with a single notion, that of vulnerability, is terribly limiting.
However, how will a judge assess the significant impact on a senior's life? Those who have been involved in criminal law courts know that, during a trial, the consequences are not presented as evidence. Therefore, the court can hear about the impact on the victim only once someone pleads guilty or is convicted. The victim is then invited to fill out the victim impact statement form at the court where they will talk about the effect of the crime on various areas of their life. Currently, the judge may take that into account or not.
I am wondering how many senior victims fill out that form. I don't really have the answer to that question, which I am adding to the discussion. Although that form is meant to provide the victim with a voice, some of them have a hard time talking about what happened and putting everything in writing. Is that worse or better for a senior? I don't know. However, I tend to believe that, if a senior has cognitive or functional limitations that affect their health, filling out the form would be a challenge.
So what kind of provisions are there to make sure that the judge will consider that significant impact, to use the working of the bill? In my own words, this is the question we need to ask ourselves: How will the judge take those consequences into consideration and deal with them? That's important to know. If we do not know that, we may feel that the proposed subparagraph will not change anything, as judges have always had the power to take the nature of the crime into account—as well as its seriousness and the consequences on the lives of victims—when deciding on a sentence.
The second question I am asking myself has to do with age. How should we define age? Do we base it on chronological age, whereby every day we will all be older than we were the day before? Do we go by physiological age, or health status? Or should we go by cognitive age or brain function? Should we base it on social age, where life is divided into phases, including school, work, marriage or young family and then retirement? In short, how will the notion of age be operationalized in this bill?
The third question I ask myself is about the word “and” placed between “age” and “other personal circumstances” in the bill. Am I to understand that age will not be the only factor considered? Once again, how will the required elements be gathered and how will they be taken into consideration to determine the personal situation of the senior victim?
The second part of my comment is about implementation.
The sentencing is the step that concludes—or nearly concludes—any legal process. That implies that an offence or a crime has been committed and the police got involved. At that stage, the case has already been deemed serious enough and could be developed further to constitute a formal complaint. The suspect or suspects have been identified, although I recognize that, in cases of elder abuse, since we are talking about a relationship of trust, the identification of abusers may be less of a challenge. The case has made its way to court, there was no out-of-court settlement, and the criminal or criminals involved have been convicted or have pleaded guilty. Only then would the proposed subparagraph apply.
We all understand that many cases of abuse may not go through all those steps. What happens to cases of abused seniors that have not made it to the end of the process? In other words, what will be the real repercussions of this measure or how many cases will be concerned?
All the literature and practical accounts show that a small portion of abuse cases make their way to court. There are of course some more subtle situations that will never come before courts, such as excessive familiarity or extreme rudeness, but there are all those other situations that are never heard about. Many reasons may help us understand why so few cases are heard. A major reason is the structural ageism of our communities.
What value does the word of a senior have for a police officer? How are seniors considered? How are they treated by a lawyer or a judge? How does a crown prosecutor assess the capacity of a senior to testify in a court? Wouldn't a good out-of-court settlement be better than a trial in some cases because the senior may have a hard time testifying?
How can a senior deal with the length of proceedings, from the moment of victimization to the sentencing? It is well known—naive optimism aside—that some defence lawyers use postponements to bring down the trials involving elderly victims.
So, as you can see from my many comments and questions, I am wondering about all the other actions required in preparation for the change we are discussing today. My concern is that the legislation will apply only to a limited number of situations. What, then, can we put in place to help as many victims of elder abuse as possible?
If we assume that 10% of seniors could fall victim to elder abuse in Canada, that would mean nearly 52,000 victims. After all, there are almost 5.2 million seniors in Canada. Even if there isn't agreement that 10% is the right figure, and we assume it is actually 5%, that still means 26,000 victims—and that's a lot. Of those 26,000 cases, how many will make it to court?
With that in mind, I urge you, as members of society and parliamentarians, to continue working together towards other tangible measures that will support victims of abuse. That means doing a better job of raising awareness around the issue and providing proper training to all those who will be working with victims of elder abuse.