Justice Committee on May 6th, 2021

[Joanne Klineberg]

As far as the Criminal Code is concerned, again, Ms. Morency mentioned the key offences in her opening remarks. If the mistreatment is in the form of unwanted or harmful touching, we have a full range of assault offences that would cover that. But a lot of what we heard and was reported on that took place in long-term care was in the form of neglect, meaning the failure to protect residents from the transmission of disease, failure to provide necessary hydration and nutrition in some circumstances, and failure to deal with bedsores or other types of illnesses and injuries.

The Criminal Code does contain several offences. The most important offence would be section 215, which is the failure to provide the necessaries of life. That is a duty-based omission-type offence, which means that it only applies to persons who have the legal obligation to provide the care. Where they fail to provide the care, thereby endangering life, that is criminally punishable. That is an offence that certainly applies in the long-term care context.

There's a more general version of a negligence-based offence called criminal negligence causing bodily harm or death. It has a slightly higher criminal law standard, so the behaviour must be a marked and substantial departure from the standard of care a reasonable person would use in the circumstances for the context of criminal negligence causing bodily harm or death. Those offences are also punishable by a higher maximum penalty than the offence of failing to provide the necessaries of life, which has a slightly lower threshold. The departure from the standard of care need only be marked. But, they do cover a lot of the same conduct. You would see charges laid for both offences in some circumstances, and that would cover both the failure to provide necessary care and also, if care is provided, but in a very significantly negligent manner, that could be captured by the criminal negligence offences as well.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Thank you very much.

Madam Chair, how much time do I have?

[The Chair, Liberal, Iqra Khalid]

You have 30 seconds.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

I'm going to try to get one quick question in.

A 2009 report prepared by the Department of Justice—its family, youth and children section—noted that legislation using the terms “elder abuse” or “elder neglect” are rare internationally outside the United States. Here are two quick questions. Is that still the case in 2021? What are the pros and cons of using such terminology in legislation or in criminal law?

[The Chair, Liberal, Iqra Khalid]

Answer very briefly.

[Carole Morency]

Quickly, I'll just say that 2009 report was used to inform the reforms that were enacted by Parliament in 2012—that sentencing aggravating factor—which looked at the range of circumstances. My colleague Ms. Underwood could also speak to it. That is one of the things the government has committed to look at, namely, how do we define that and what are the variations in the use of terms within Canada, and in policy outside of Canada, etc.? It continues to be a variant.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We will now go to Monsieur Fortin for six minutes.

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

Thank you, Madam Chair.

My question is for Ms. Morency.

We've started discussing the current Criminal Code provisions respecting criminal negligence and failure to provide necessary care.

What do you think of the current Criminal Code provisions as a way to combat elder abuse and violence against seniors, whether physical, financial or of some other kind? How do you think current provisions address existing needs?

[Carole Morency]

Allow me to answer that in English.

There are two things. Conduct that involves the mistreatment or abuse of seniors or elderly persons can be addressed in a number of ways. It could be addressed through the Criminal Code if it rises to the standard of some of the offences we've described. Conduct that involves treatment of, for example, persons in long-term care facilities might also be addressed through provincial regulatory oversight, and how things proceed under one or the other may depend on the evidence in a particular case and whether the police could proceed more easily under one system than another—and maybe different standards are at play.

My colleague Joanne Klineberg has explained the failure to provide the necessaries of life and the standards that are applicable under the Criminal Code. Provinces under their regulatory oversight of long-term care facilities and the rules that are in play there would have different standards. At the end of the day, conduct can be treated sometimes under one or the other. Sometimes in the criminal law context, as my colleague has said, the same conduct might result in charges for a number of offences, but ultimately it's going to depend on the facts and circumstances of each case.

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

The committee won't be addressing provincial jurisdictions; we agree on that.

Incidentally, Ms. Morency, I enjoyed your presentation. If possible, and you have no objection, I'd like to have a copy of the speaking notes you just read from. That would be helpful.

Getting back to my question, again regarding federal jurisdiction, do you think the provisions currently in force, those of the Criminal Code or other statutes, are adequate to address the situations we're considering here? If not, should the current provisions be amended, should a new act be introduced, or should we perhaps add a special division to the Criminal Code? How do you view the situation, again within the limits of federal jurisdiction?

[Carole Morency]

I'm happy to provide my remarks to the chair.

I would just remind the committee that the government has made a commitment to more specifically address the situation by explicitly penalizing the neglect of seniors in these situations. Clearly, the government has committed to do more. To the extent that something is in place now and there is conduct in question, certainly there are many offences that we've highlighted and factors that are available to proceed in the immediate term, but on a go-forward basis the government has clearly indicated that more will be coming.

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

Do you have any statistics on the number of elder abuse cases in each of the provinces?

And do you have statistics indicating an increase in physical or financial crimes against seniors? Are those figures available?

I'm asking you both because I don't know which of you is in a better position to answer.

[Carole Morency]

Unfortunately, we do not have those statistics, but again, as I mentioned, the committee may wish to reach out to the Canadian Centre for Justice Statistics with Statistics Canada. They may be able to provide you with more information but they certainly have released a Juristat on data of family violence in Canada from 2019 and in there, section 4 deals with some of the factors that you've asked about, but we've also acknowledged in my remarks that we need more and better data in this area, and that's why we're working with our partners to get that.

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

What partners do you mean? You say you need more information in this area. Is a study under way?

[Carole Morency]

Yes, the Department of Justice is working with Statistics Canada.

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

I see.

[Carole Morency]

We're waiting for the study findings. They'll be out next year, in 2022.

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

Will we get figures on types of abuse so we can tell whether there's more physical violence or financial abuse, for example? Will that be addressed?

[Carole Morency]

It's going to identify the framework to collect better data across the different categories, oui.

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

I believe my time is up.

Thank you, Ms. Morency.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Monsieur Fortin. I appreciate that.

We'll now go to Mr. Garrison for six minutes.

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

Thank you very much, Madam Chair.

Thank you to the witnesses for being with us this morning.

I'm going to ask the Justice witnesses a question, but I'm going to ask them to bear with me a moment while I lay out a story that I think raises some questions about how we actually respond to elder abuse.

The story I want to lay out is of a private, for-profit company providing services to seniors, a company that, in narrow business terms, is very successful. In 2020, this company exceeded its profit projections by 40%, and as a result, it paid out more than a million dollars in bonuses to its top five executives, including a performance bonus of nearly half a million dollars to its CEO. Now what if I tell you that this company is a long-term care company, with revenues of $716 million from operating dozens of long-term care homes in four provinces? This company suffered a rate of death of its residents of about 3.6 per hundred beds, so nearly 4% of the residents in its homes died from COVID. In two of those homes, more than 20% of the residents died from COVID. I would also point out that in one of those homes, in one month, the home was cited for 13 violations of standards of care, including failure to provide adequate hydration, failure to provide incontinence care and failure to provide adequate nutrition—13 times in one month while paying out a million dollars in bonuses to its chief executives.

The question I really have here is the following. Certainly the witnesses laid out that there is criminal negligence causing bodily harm and the failure to provide necessities of life. Those two aspects of the Criminal Code, I think, clearly apply in these cases where the company involved.... And I haven't named the company, because unfortunately you or I could name at least four companies with almost exactly the same story to tell during COVID. Despite this, I'm unaware of any criminal charges of any sort laid against any operator of a long-term care home when we have certainly had a vast proportion of the COVID deaths taking place in long-term care homes, and a large proportion of those taking place in a second wave, which indicates that there was a failure to put an adequate response plan in place. To me, that would also qualify under section 215 as a criminal offence for failing to provide the necessities of life, which would have required hygiene and infection protection measures, which were not taken in these homes.

My question for the Department of Justice officials is very specific. Have any charges been laid? If not, or if there have only been a few charges, who's responsible in our system at this point for charges being laid for criminal negligence or negligence in providing the necessities of life in long-term care homes during COVID?

[Joanne Klineberg]

I don't think we are aware of charges having been laid in respect of this or other long-term care circumstances. We are certainly aware of a number of lawsuits that have been laid on the civil side, both against long-term care facilities and I think against provincial governments.

Who is responsible? I think the members of this committee will probably know that law enforcement is a local responsibility, so it would be for the police departments in the jurisdiction where the alleged offences took place to gather the evidence. We don't know whether that is happening, it may be that investigations are taking place, but charges haven't been laid yet, or we haven't come to be aware of them yet. Enforcement actions may also be taking place on the provincial regulatory side that we are not aware of. I think that's the most we could say about that.

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

This seems to raise a certain problem for me, when the courts have specified that there needs to be action both to deter and to denounce elder abuse. If we're not seeing these prosecutions now, a year after it became clear that there were failures to provide necessities of life, failures to provide what was really needed and we have no prosecutions, then there's no denunciation and there are no deterrents. In fact, what we're seeing now is that it's being left to the relatives of those who lost loved ones to bring lawsuits as a kind of deterrent factor. It seems to me that this raises questions about how seriously we're taking elder abuse.

This is why I wished to have the ministers present today, because I'm not sure that I could ask a public servant to answer that question. That said, I am concerned and I do agree that our system says that local law enforcement is responsible to investigate, but there's something larger happening here that's probably beyond the capacity of local police to investigate the circumstances of when it comes to companies that operate in multiple jurisdictions.

[Carole Morency]

Madam Chair, might I just briefly note that I think the committee is aware that the government has committed to go further with a criminal law response to this.

In the meantime, as my colleague said, we're not in a position to say to the committee that some investigations are or are not happening, but if we were to take notice of the report that the Ontario commission released last Friday, for example, it does speak to many of the issues the member has raised, including the fact of further investigation and review about how all these things are playing out individually and collectively.

Is it a question of timing? I don't know. We're not in a position to say.