Justice Committee on May 6th, 2021

[Graham Webb]

I do, Mr. Garrison, and the criminal law responses must attach responsibility for custodial sentences, as well as fines, which might represent, in some cases, the cost of doing business.

On a matter of provincial jurisdiction, in Ontario, the Long-Term Care Homes Act affixes specific responsibility to directors and officers of licensees of long-term care homes to ensure compliance with the Long-Term Care Homes Act. It also allows a court to impose a fine of up to $2,000 on an officer or a director of a non-profit licensee, or in all other cases, for not non-profits, a fine of up to $100,000 for a first offence and of up to $200,000 for each subsequent offence for breaches of the Ontario Long-Term Care Home Act.

Despite that, we continue to see egregious breaches of the Long-Term Care Homes Act without charges and really without acceptance of responsibility on the part of long-term care home operators.

If the Parliament of Canada were to adopt this specific criminal charging section that includes specific responsibilities for officers and directors, that includes potential liability for custodial sentences, we think this would change the picture completely.

Bernie Madoff has gone to jail for financial offences, but we don't see anybody being prosecuted, let alone facing the prospect of going to jail, for neglect that has caused the injury and death of thousands of long-term care home residents.

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

From your advocacy work on this—I know you have stated this before, but very quickly—I haven't found any evidence of charges, let alone systematic investigations of the homes that were responsible for very large numbers of deaths.

Again, have you seen any evidence even of investigations of the homes that were the most egregious violators of standards and had the highest level of deaths?

[Graham Webb]

No.

Mr. Garrison, this week I'm dealing with a caller whose family member was injured in a long-term care home who has asked the police for investigation under section 215 of the Criminal Code, and no investigation has been undertaken.

In my 26 years at the Advocacy Centre for the Elderly, 21 years as a staff litigation lawyer, I have routinely written to the chief of police or the detachment commander asking for investigations that have only been conducted mainly grudgingly. Sometimes we get investigations and charges on financial matters, but never on caregiving issues in long-term care homes and other care facilities.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Webb and Mr. Garrison.

We will now go to our second round of questions.

Madam Findlay, you're up for five minutes.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you, Madam Chair.

To Mr. Webb and Madame Beaulieu, thank you both for being here and for your advocacy for the elderly. It's very much appreciated, but it sounds to me like both of you often suffer from feeling like you're blowing into the wind. I applaud you for sticking at it for those who are very vulnerable for as long as you have.

The Minister of Justice's December 2019 mandate letter noted as a top priority:

Work with the Minister of Seniors to create a national definition of elder abuse, invest in better data collection and law enforcement related to elder abuse, and establish new offences and penalties in the Criminal Code related to elder abuse.

That was reaffirmed again in the January 2021 mandate letter.

I think the intention is there, and it is clear. The question is whether that is happening and what the Minister of Justice could do to deliver on that mandate.

I think you have been very specific, Mr. Webb, and I thank you for that.

It seems to me, though, that some of the problems here are also with the prosecution, not just that we may need.... I hear what you're saying on whistle-blower protection and new charging sections. That makes sense to me, but I have had my own experiences in this realm where a senior was returned to the care of those who would look after her after having been virtually kidnapped by a son, and then all her money taken away.

It was reported to police, their elder abuse section, the RCMP in this case, and they basically took the position, “Well, you've got her back. She's okay now. The family has her back. We're just not going to pursue this”.

I think what often happens is this great reluctance, because not just the victims, but often the witnesses to the victimization are themselves elderly, and the police feel they can't prosecute on the basis of that evidence, which may be very vulnerable to a rigorous cross examination or whatever.

Madame Beaulieu mentioned that someone should go with an elder who has been a victim, with them if they are testifying or witnessing, which makes a lot of sense to me.

It seems to me that, if we had a better definition of elder abuse, we would have a more heightened awareness of what elder abuse is and what it looks like.

Perhaps, Mr. Webb, you could comment on defining it. I know Madame Beaulieu has already talked about that.

[Graham Webb]

Ms. Findlay, I think it's important to have a clear definition of elder abuse. I think that helps the process. I'm not sure where it would fit into the Criminal Code, because there is no charging section for elder abuse. It may be important for sentencing purposes.

The problem, as you have identified, is the investigation and the prosecution of crimes to begin with and obtaining a conviction before we get to the sentencing aspect. Mr. Garrison asked if the police are missing a tool. I think they are missing a tool; they need a specific tool to investigate these crimes.

The situation you described regarding police investigations is chronic. We expect to hear that this is a civil matter, because the police feel they are incapable of investigating on a criminal basis.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Would you agree with me that, if we could look to changes in the Criminal Code—and you have made suggestions on that—we also need to look at a definition within that grouping of changes?

[Graham Webb]

If there were a charging section dealing specifically with elder abuse, then, yes, it would be very important to have that definition.

I agree with you that we also need resources and policies on enforcement—in other words, investigations and so on. The charging section is simply the starting point from which everything else flows.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Mr. Webb, I'm interested in the types of claims your organization deals with most often and how, if at all, the types of claims have shifted since March 2020.

[Graham Webb]

We're seeing more and more instances of abuse. The question is, is it increasing? It is indeed, in all aspects. It's abhorrent.

Normally, we refer issues of physical violence to the police. We're not an investigative agency. We're lawyers. The types of claims we typically prosecute are civil claims of financial abuse. They can be accompanied by physical, sexual and emotional abuse, because all forms of abuse overlap. We have provided criminal representation to victims and witnesses, as well as to older adults who are charged with crimes.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We'll now go to Mr. Maloney for five minutes.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thanks, Madam Chair.

Thank you to both of our witnesses for your very informative discussion.

I'm trying to reconcile the two different points of view. Maybe they're not two different points of view, but differing things that both of you have said. On the one hand, we're trying to devise some ideas and perhaps amendments to the Criminal Code that would help to reduce, prevent and punish those who are guilty of elder abuse. I'm struggling a little with what specific addition to the Criminal Code could be made that is specific to seniors. I guess that's what I'm trying to say.

Mr. Webb, you keep referring to the charging section, for example. I think it might be helpful if you defined a charging section to those of us who may not be intimately familiar with that terminology. Then let me know if you have any language that you would like to see in the Criminal Code in that regard.

[Graham Webb]

Mr. Maloney, a charging section is a section of the code that identifies an offence, such as failure to provide the necessaries of life. When I did criminal defence work, the first thing I would do would be to obtain a copy of the information that laid out the charge. I would open the Criminal Code on my desk and compare the charge laid to the charging section in the code to make sure it was a valid charge—often it was not.

With respect to criminal endangerment, I would suggest essential elements along the lines of an individual or organization has entered into a contract to provide care and/or supervision of a person; that the individual or organization has failed to provide adequate care and/or supervision of the person; and the failure to provide adequate care and/or supervision has endangered the health or safety of the person. Those are the essential elements I would be looking at.

By the way, elder abuse is a very broad topic. I have much more to say, as does my agency, on other aspects of elder abuse. Today we've come to focus specifically on criminal responses to abuse and neglect in long-term care homes, retirement homes and other congregate living situations across the country.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

With those suggestions you just made, I'm assuming you wouldn't be putting age restrictions in the law?

[Graham Webb]

No.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Okay. That's my concern. These issues you're talking about could equally apply to somebody who's 50 years old as to somebody who's 70 years old, depending on their circumstance.

[Graham Webb]

We don't think it's appropriate to ghettoize older adults. They have the same rights as all other adults. The problem is that they are often infantilized and treated as less than fully capable people.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Okay. So what you're really talking about is creating a set of laws that would benefit elders and make it easier to prosecute those who are committing acts of elder abuse, as opposed to specifically enunciating laws that deal exclusively with elders. Is that correct?

[Graham Webb]

That's correct. That's consistent with most of our positions.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Then it becomes a challenge of trying to enforce these laws, to get abuses reported and get police to deal with them. I think that's what Ms. Beaulieu was talking about. There's really an educational component to this thing.

I think it was you who said that a lot of the victims here are under the care of others, and those people are the spokespeople. That creates a challenge unto itself.

Do you have a specific list of recommendations you could provide us with? What can we recommend by way of education for police forces or other authorities to try to provide them with more information that would make it easier for them to understand and better enforce the rules that do exist, and through any new laws that come into place?

[Graham Webb]

Mr. Maloney, that's a very broad topic, which falls largely outside the area of federal jurisdiction. I can't provide you with specific recommendations today. I can tell you that in the course of our work, we have provided instruction to Toronto Police officers and the Ontario Police College—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Sorry, Mr. Webb. I don't mean to interrupt, but I'm running out of time.

My question was actually posed to Ms. Beaulieu, and I was not suggesting—

[Graham Webb]

Oh, I'm sorry.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

—in any way that instructions be given to the police.

What I'm talking about is an educational component that would help the people who are making these decisions and who are dealing with this on a day-to-day basis to do their job and accomplish some of the goals we're talking about.

[The Chair, Liberal, Iqra Khalid]

You're out of time, Mr. Maloney.

Perhaps I can suggest, Ms. Beaulieu, that you might like to provide an answer in writing, but that is your prerogative.

We will now go to Monsieur Fortin for two and a half minutes.

Please go ahead, sir.