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.