Justice Committee on May 6th, 2021

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

I see. Thank you very much, Ms. Morency.

I have a few seconds left. I yield them to Ms. Underwood if she would like to respond.

[Kristen Underwood]

I'm not well positioned to answer you either.

I would say the same. I'm not either.

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

You'd think no one here has any money.

[Voices]

Oh, oh!

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

In any case, I think my time's nearly up.

The fact remains that this is an important point. I understand that we have to address the criminal aspect, which is a federal jurisdiction, using the Criminal Code. However, I understand from your testimony that the situation's different from, or at least tougher than, what it used to be for the provinces. So we should probably provide more assistance to the provinces so they can address those growing needs.

[The Chair, Liberal, Iqra Khalid]

Thank you.

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

Thank you, Madam Chair.

Thank you, Ms. Morency and Ms. Underwood.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Monsieur Fortin.

We'll now go to our last questioner for this panel, Mr. Garrison, for two and a half minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I want to stay focused on the crisis in long-term care, which has cost so many thousands of lives. In doing so, I don't in any way take away from the large problem of the individual cases of elder abuse that take place in our country, but I think we have a responsibility to respond.

I'm going to go back to the question of who could be investigating, and who could be working on laying charges in cases that appear to indicate violations of section 215 of the Criminal Code.

When for-profit long-term care companies own homes in more than one province, would it not be possible for the RCMP to investigate conditions and responses under COVID of those companies because they cross provincial lines of jurisdiction? I'm thinking in particular of one company—again which I won't name—that paid $10 million to its shareholders during COVID, but spent only $300,000 on its COVID response plan in its long-term care homes.

Isn't there an aspect here that does become federal when these companies cross provincial jurisdiction lines? I will ask the Justice officials again.

[The Chair, Liberal, Iqra Khalid]

To the Justice officials, please respond.

[Joanne Klineberg]

I will try to answer, but with apologies and respect for the committee, this is not an area I have tremendous expertise in.

I think our understanding is that the crimes committed in the local jurisdictions are still the matters of the local police, and they would work co-operatively with local police in other jurisdictions where the same or similar offences had taken place by the same potential suspect.

It's not my understanding, but I would recommend that perhaps you invite the RCMP to ask them this question, that because a crime may cross provincial borders that would give the RCMP enforcement jurisdiction.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I would use the parallel of organized crime, where sometimes special task forces are set up by the RCMP to investigate things. When you look at the case of a long-term care company paying out such huge amounts in dividends to its shareholders, and failing to provide the necessities of life to the residents of their care homes, this seems to indicate a gap in our system. Can no one look at that larger question of whether this, in fact, constitutes a Criminal Code violation?

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison. Unfortunately, that concludes your time.

I will take a moment now to thank the officials for being here today and for their very compelling testimony and for answering our questions.

I will now suspend for a few minutes as we let in our next panel of witnesses.

I will see you in a few minutes.

[The Chair, Liberal, Iqra Khalid]

I will call this meeting back to order.

I welcome our next panel of witnesses as we continue our study on elder abuse. Thank you, witnesses, for being here today.

I have just a couple of housekeeping items for witnesses.

Before speaking, please wait until I recognize you by name. When you are ready to speak, you can click on the microphone icon to activate your mike. When you have finished speaking, please make sure that you go back on mute. All comments should be addressed through the chair.

Interpretation is available to you. At the bottom of your screen, please select the globe icon and select the language that you would like to listen to. You can speak in any language—English or French, no problem. When you're speaking, do speak slowly and clearly so that we don't have any problems with interpretation.

I'll remind you again that when you're not speaking, please be on mute.

Welcome to our witnesses for our second panel.

As an individual, we have Marie Beaulieu, who is a professor at the Université de Sherbrooke and holder of the research chair on mistreatment of older adults. We also have with us the Advocacy Centre for the Elderly, represented by Mr. Graham Webb, lawyer and executive director.

Both of you will have five minutes each. To help you along the way, I will keep time with cards showing one minute remaining and 30 seconds remaining.

We'll start with Madame Beaulieu.

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

Good afternoon, members of the Standing Committee on Justice and Human Rights.

Thank you for inviting me to take part in your work on a topic that has been very important to me for nearly 35 years. I share your concerns and your wish to take a more effective approach to addressing the social and public health issue of mistreatment of older adults. I will try to focus my remarks on the federal government's areas of jurisdiction, while vigorously advocating stronger federal-provincial and territorial dialogue, particularly regarding intervention practices within the jurisdiction of the provinces and territories.

My presentation will address four brief points.

First, I'd like to discuss current knowledge of abuse.

We have extensive data on which to base a profile of elder abuse. For your information, I have submitted to you one of our papers, which was recently published in English and French.

Nearly 16% of seniors around the world are abused every year. According to the most recent of the three national prevalence studies, the figure here at home is slightly more than 8%. We should not conclude that the situation is much better here because the scope of the abuse is Canada is underestimated as a result of methodological issues. I do not have enough data to establish a percentage of the seniors who are abused in long-term care centres. That's a concern considering that residents with cognitive and physical deficits aren't always able to defend themselves.

A number of papers have focused on the determinants of abuse. Contrary to popular belief, abuse can be explained more in terms of risk factors, such as environment and characteristics of the abuser, than of vulnerability factors specific to the abused senior, even where we know that cognitive deficits and low incomes are major vulnerability factors.

Every type of abuse has physical, psychological, material, financial and social consequences. In a research project that we recently completed on the abuse of seniors with disabilities, we more clearly identified the short- and long-term scope of those consequences. The abuse of these persons is all the more concerning in cases where they are receiving the services they absolutely need in order to function. In these instances, I share your concern to come down hard on individuals who neglect seniors in their care.

Lastly, it is particularly important to continue developing public awareness, train current and future practitioners, promote early detection and provide solutions suited to seniors' needs.

Second, I'd like to describe the legal scope of the concept of abuse.

The committee is particularly examining the suitability of current statutes in combating senior abuse. We should not lose sight of the fact that many instances of abuse may not be treated as such because they are not provided for in the Criminal Code. Consider, for example, the deliberate ignoring of seniors, inappropriate clauses in leases, the burden of proof that must be met to prove criminal harassment, and so on. Section 718.2 of Canada's Criminal Code, which concerns sentencing principles, is the only provision under which victimization, age and consequences can be clearly linked. Is that enough?

Few situations are reported to the police, who are the gateway to the criminal justice system. Although seniors do not always want these situations to be handled under criminal law, particularly when the abuser is a family member, how are police officers prepared to address them?

During the period of questions, I can tell you, for example, about the practices the Montreal police department has introduced with a grant from the new horizons for seniors program, practices that the World Health Organization considers promising. We should also discuss the importance of teletestimony for seniors and the harmful effects of the delays inherent in our justice system.

Third, I'd like to discuss access to justice.

Access to justice includes a major social dimension that presupposes a certain degree of freedom, whereas many abused seniors are under the control of the person or organization that abuses them, which compromises their ability to decide and take action. Some family members who want to protect them may, on the contrary, be restricting them. Professionals and organizations engage in abuse. Many studies show that social workers take a paternalistic attitude toward seniors and decide for them not to engage with the justice system or else deem them incapable of doing so. How can seniors then take action to gain access to justice?

It is important to consider free or low-cost structures that can guide and assist seniors in their search for justice. Without those structures, access to justice merely reinforces the inequalities associated with age, socioeconomic status and gender; in other words, the inequalities between men and women. I am also convinced that Canada can take further action and do a better job of establishing restorative justice.

I now come to my fourth and final point, which is Canada's role in promoting seniors' rights.

Since 2016, I have been involved in the work of the UN's open-ended working group on ageing for the purpose of strengthening the protection of the human rights of older persons. I contribute to the group not as a university professor, but as a person engaged with an NGO, the International Network for the Prevention of Elder Abuse.

Canada is often viewed as a beacon around the world. However, I question the hesitant stance that Canada has taken recently, and indeed at various times…

Have I exceeded my time, Madam Chair?

[The Chair, Liberal, Iqra Khalid]

You have substantially, but thank you, Madame Beaulieu. Maybe the rest of it will come out through questioning.

We'll now go to the Advocacy Centre for the Elderly.

Mr. Webb, you have five minutes. Please go ahead.

[Graham Webb, Lawyer and Executive Director, Advocacy Centre for the Elderly]

Thank you, Madam Chair.

Elder abuse is a very broad topic. We can't say everything we wish to. I will focus my remarks on elder abuse and neglect in long-term care homes, retirement homes and other congregate living facilities.

Our submissions are, first, that we need a new charging section in the Criminal Code to specifically address this situation. We need whistle-blower protection in the Criminal Code and we need personal responsibility of directors and officers for criminal sanctions.

The Advocacy Centre for the Elderly is a community legal aid clinic, established in 1984, that is committed to upholding the rights of low-income seniors. Its purpose is to improve the quality of life of seniors by providing legal services, which include direct client assistance, public legal education, law reform, community development and community organizing.

ACE receives thousands of calls per year, and it provides legal advice and representation to low-income seniors on age-related issues, including long-term care homes, retirement homes and other congregate living facilities, and elder abuse across a broad range of settings.

We are familiar with issues of elder abuse and neglect in care homes and with the criminal ramifications of elder abuse and neglect in those situations. We will focus today on care homes and the sufficiency of the Criminal Code to address that.

Madam Chair, in answer to a question posed by Monsieur Fortin to Ms. Morency, in our view the Criminal Code is not adequate and is not up to the task of a substantive criminal justice response to elder abuse and neglect in care homes.

Further to a comment made by Mr. Garrison, we, at the Advocacy Centre for the Elderly, have called for criminal investigations of neglect in care homes, and we are not aware of any charges laid either.

Further to a comment made by Mr. Virani, we think that charges are usually not laid for want of a suitable charging section.

Elder abuse and neglect in care homes is a systemic problem that requires a systemic response from the criminal justice system. The Criminal Code needs to be amended by adding a new charging section that is separate and distinct from failure to provide the necessaries of life and from criminal negligence, both of which offences speak to duties tending to the preservation of life, but do not sufficiently respond to elder abuse and neglect in care homes.

A new offence could be “criminal endangerment”, which could include the following essential elements: first, that an individual or organization has entered into a contract to provide care and/or supervision to a person; second, the individual or organization has failed to provide adequate care and/or supervision to that person; and third, the failure to provide adequate care and/or supervision has endangered the health and/or safety of the person.

In keeping with a similar crime against a person of failure to provide the necessaries of life under section 215 of the Criminal Code, the punishment of imprisonment of up to five years on conviction by indictment or of up to two years less a day on conviction by summary conviction procedure could be an appropriate range of sentence.

As is the case with criminal negligence, under sections 219 to 221 of the Criminal Code, discrete offences of criminal endangerment causing bodily harm and criminal endangerment causing death could be created with similar penalties of imprisonment of up to 10 years for criminal endangerment causing bodily harm and of life imprisonment for criminal endangerment causing death.

These proposals represent serious offences, with serious consequences, that reflect the severe vulnerability of the victims, the position of trust held by care providers, and the profound power imbalances that exist between those who provide care and those who receive it.

The Criminal Code should also protect whistle-blowers by creating a separate and distinct offence in the nature of a crime against the administration of justice when an individual or organization retaliates against a resident of a care home for making complaints concerning criminal endangerment or other aspects of failure to provide adequate care and supervision.

A similar offence is found in subsections 139(2) and 139(3) of the Criminal Code in respect of obstruction of justice and the intimidation or interference with witnesses in an existing or proposed judicial proceeding.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Webb. We are over time.

We'll go into our round of questions. The first round is six minutes each, starting with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Chair, and thank you to the witnesses.

I'll begin with Mr. Webb and perhaps let him continue where he finished off. The Criminal Code obviously is within the exclusive domain of Parliament, so I'm very interested in recommendations on the current provisions in the Criminal Code, where there are gaps and how those gaps can be closed.

Mr. Webb, you were talking about whistle-blower protection. I'll allow you to elaborate further on that and also touch upon the third point that you raised, but didn't have an opportunity to address in your testimony, namely personal responsibility for officers and directors with the imposition of criminal sanctions under the Code.

[Graham Webb]

Thank you, Mr. Cooper. I very much appreciate that.

Without strong whistle-blower protection, there will be no existing or proposed judicial proceedings because complaints will not be made and charges will not be laid.

Many older adults are afraid to make complaints about inadequate care because they fear retaliation from their caregivers. Any criminal offences concerning failure to provide adequate care and supervision would be meaningless in the absence of strong whistle-blower protections that would give care home residents, their families, their substitute decision-makers, their friends and other loved ones assurances that interference with their right to make complaints will be respected and upheld.

The criminal responsibility should extend not just to individuals and organizations in general, but specifically to those who own, govern and operate care homes.

One of the many difficulties in prosecuting offences such as failure to provide the necessaries of life and criminal negligence causing death or bodily harm is identifying which, if any, of the individuals associated with the operation of a home should be held personally responsible for criminal sanctions, where the home has profoundly failed to provide adequate care and endangered a person's health and safety, even to the point of bodily harm or death.

Those who own, govern and operate care homes are fundamentally responsible for committing resources, setting budgets, establishing operating procedures, recruiting and maintaining adequate staff, and ensuring that enough well-qualified staff are on site at all times to provide essential care. If a home is not managed properly, it's foreseeable that registered staff such as nurses, social workers, occupational therapists, and unregistered staff such as personal support workers will be placed in highly compromised situations in which they are completely unable to provide the care that's needed for want of adequate resources.

Responsibility for the overall operation of the home rests at the highest levels of ownership, governance and management. Those occupying these positions should have personal criminal responsibility for ensuring compliance with the Criminal Code of Canada in respect of the caregiving functions of the home. Otherwise, a systemic criminal justice response would not be provided to a systemic issue of elder abuse and neglect.

Finally, in view of the fact that elder abuse and neglect in long-term care homes, retirement homes and other congregate living facilities is a systemic issue that largely derives from inadequate resources and poor management of a home, it would be fit and just to extend liability for custodial sentences to the owners, governors and operators who are in a position to provide the systemic responses that are necessary for the good and safe operation of the home.

I thank you for allowing me the extended time.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Webb.

With regard to the first suggestion of a criminal endangerment section, are there any other sections you could point to in the Criminal Code that are analogous? Are there other jurisdictions that have adopted a law such as this that we could look to?

[Graham Webb]

If I can focus my remarks on Canada and Ontario—I've practised law in Ontario for 36 years, 26 years with the Advocacy Centre for the Elderly—there are analogous sections: section 215, failure to provide the necessaries of life, and sections 221 and following, criminal negligence causing death and bodily harm. These are very difficult charges to prosecute in the long-term care situation, mainly because the legal liability standard for criminal negligence involves causation, which is difficult to prove.

In any event, when it's an act of omission, it's hard to identify which particular individuals are responsible for the omissions—the care that is not provided.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

It looks like my time is about to expire. I will very quickly ask Madame Beaulieu a question.

You cited gaps in the code. Is there anything you would like to highlight?

[Marie Beaulieu]

I was still quite concerned even when the amendments that resulted in section 718.2 of the Criminal Code were made because that section constitutes a reminder to judges, rather than an obligation, to consider age, victimization and its consequences. I don't think it goes far enough.

As I said earlier, it's very important that we examine both the content of the Criminal Code and the way it's enforced. Very few senior abuse cases are reported to the police and then brought before the courts.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We'll now go to our second questioner, and that is Madame Brière, for six minutes.

Please go ahead.