Justice Committee on May 11th, 2021

[The Chair, Liberal, Iqra Khalid]

Good morning, everyone. I call this meeting to order. Welcome to meeting number 33 of the House of Commons Standing Committee on Justice and Human Rights.

There are a few quick housekeeping notes. We have with us MP Stéphane Lauzon, who is replacing MP Mike Kelloway today. We also have MP Tony Baldinelli, who is replacing MP Chris Lewis.

Welcome to both of you. We are very pleased to have you here today.

Members and witnesses, to ensure an orderly meeting, I'll outline some rules with respect to interpretation and sound.

If you notice at the bottom of your screen, there is a globe icon. Please select the language that you would like to listen to. You can speak in any language, French or English, of your choosing. When you are speaking, please wait until I recognize you by name. Then unmute your mike, which also is at the bottom of the screen. Once you are done speaking, please mute your mike again. I will remind you that all comments should be addressed through the chair.

I have time cards to help you all keep time. I have a card to indicate there's one minute remaining and one for 30 seconds remaining, which will allow you to keep your remarks within time.

I would like to welcome our witnesses. We have the Canadian Centre for Elder Law, represented by Krista James, national director; and Stephanie Tam, staff lawyer. We also have Howie, Sacks and Henry LLP, represented by Melissa Miller, partner and lawyer. We have Vigil'Ange, represented by Stéphanie Bérard, president; and Colombe Marcoux, coordinator. I believe we are waiting for Colombe Marcoux at this point.

We will go ahead and get started. Each of our three organizations will have five minutes to make its opening remarks before we go into our round of questions.

We'll start with the Canadian Centre for Elder Law.

Please go ahead. You have five minutes.

[Krista James, National Director, Canadian Centre for Elder Law]

Madam Chair and honourable committee members, thank you for the opportunity to appear before the committee.

I speak for the Canadian Centre for Elder Law. We conduct research and develop reports and educational tools on legal and policy issues related to aging. You will find many elder abuse resources on our website. Last month, we completed a study paper on elder abuse for the B.C. Council to Reduce Elder Abuse. We are presently updating our “Practical Guide to Elder Abuse and Neglect Law in Canada”, with funding from the Department of Justice victims fund.

We commend the committee for setting aside time to study elder abuse in Canada.

I will first speak briefly to the sufficiency of existing Criminal Code provisions and then comment on some other prevention and response issues within the federal jurisdiction.

First, elder abuse includes different kinds of victimization, which require different policy and legal responses. Roughly, elder abuse includes interpersonal family violence and neglect; financial abuse under a power of attorney or another legal document; fraud, scams and professional cons; and then, finally, abuse and neglect in institutional settings.

In terms of interpersonal violence, older people are mostly harmed by people they care about—often, dependent family members. Most seniors do not want their child or grandchild to go to jail; they just want the abuse to stop. When they are harmed by con artists, they are more supportive of prosecution. Family members want corporations penalized for neglecting older adults living in long-term care.

We concur with previous comments that the existing age-neutral Criminal Code provisions are largely adequate for responding to elder abuse in Canada. That said, the proposal by Mr. Webb, from the Advocacy Centre for the Elderly, for a Criminal Code provision on criminal endangerment to facilitate the prosecution of neglect in long-term care merits study.

Further, we recommend legal research into, one, the effectiveness of existing Criminal Code provisions for addressing violence against other populations, such as women and children and, two, the U.S. experience with criminal law responses to elder abuse.

We are part of a law reform agency at the Canadian Centre for Elder Law. We believe that law reform is ideally informed by robust comparative research that allows us to learn from the mistakes and the victories of others. Many states in the U.S. penalize elder abuse criminally. We need a better understanding of these experiences before we follow their lead. We recommend that the Government of Canada fund this research.

Although Criminal Code enforcement falls largely to the provinces and the territories, the Government of Canada has a significant role to play. For example, law enforcement in smaller communities across Canada is by the RCMP, which requires funding for better outreach and response. Much of the police response to elder abuse is attending on site to provide information and referral. Social worker/counsellor and police detective pairings make for great on-site support for older adults.

Most jurisdictions do not have a Crown counsel policy regarding how to work with victims and witnesses who have mental capacity issues, including, for example, dementia. The Government of Canada can provide leadership in supporting research and policy development in this area, perhaps by bringing back the federal elder abuse initiative, which has funded some excellent resource development in Canada. The government could also support interjurisdictional knowledge exchange on this topic, possibly through the federal-provincial-territorial working group on seniors issues.

While punishment can be very important, we encourage the committee to apply a victim-and-survivor-centred lens that gives attention to the unique needs of different vulnerable populations in Canada. This approach highlights many responsibilities that are within the federal jurisdiction, beyond the Criminal Code.

First, a number of populations that are particularly vulnerable to abuse fall under the federal jurisdiction, for example, indigenous peoples and immigrants and refugees. Both groups require better support when they experience abuse and neglect, and you can imagine some unique vulnerability here.

Second, and my final point, the recently passed National Housing Strategy Act codified a human right to housing in Canada. It requires the minister responsible to develop and maintain a national housing strategy that addresses persons most in need of housing, which includes, according to Canada’s national housing strategy, both seniors and people fleeing violence.

There is only one transition house in Canada developed to meet the needs of older women. In many communities, the only emergency housing for older men is a homeless shelter.

The Atira report, “Promising Practices across Canada for Housing Women who are Older and Fleeing Violence or Abuse”, identified a significant lack of appropriate temporary housing for older women. More recently, the UN special rapporteur on the right to adequate housing called for national-level leadership in realizing the right to housing for vulnerable populations in Canada.

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. James.

We will now go to Howie, Sacks and Henry.

Ms. Miller, you have five minutes.

[Melissa Miller, Partner and Lawyer, Howie, Sacks and Henry LLP]

Thank you, Madam Chair, and thank you, members of the committee, for the opportunity to speak today.

I am a personal injury lawyer with a focus on nursing home litigation. I sue long-term care and retirement homes for elder abuse and neglect and have been doing so since long before COVID.

Nursing home litigation is seriously under-litigated in Canada mostly because the damages in these cases often do not outweigh the costs of litigation. This means that legitimate cases often never come to light. Our civil justice system does not recognize the value in our most vulnerable populations, our seniors and those with disabilities.

Every single family that I represent—several hundred currently—says that they want accountability and answers. That is why they come to me. These families are often caught up in a very complex web of bureaucracy, and they get passed around when something goes wrong. They can't get answers from the administrators of the home, the police usually will not investigate, the coroner will most often not get involved, and here in Ontario, when the Ministry of Long-Term Care does find wrongdoing, it rarely enforces all available remedies.

As we have seen throughout this pandemic, many families have turned to their MPPs, MPs and the media to get answers and some measure of accountability.

Every province has various regulations regarding the enforcement of penalties to a home for violating its obligations under the governing provincial legislation. In Ontario, for example, the ministry has the power to revoke a licence from an operator, order a return of funding and impose various sanctions.

This varies widely across Canada. Often when I see the inspector reports after an investigation, I see things like “voluntary compliance” and “written notice”. I have also heard that a staff member will sometimes be fired as a result of an infraction, but it's extremely variable across the board.

Even after the abominable atrocities that we heard about through this pandemic—like 26 residents of a long-term care home in Ontario dying from dehydration before the military was able to arrive—licences have still not been revoked and fines haven't been paid. Instead we see sweeping legislation at the provincial level across the country providing immunity to long-term care and retirement homes for COVID losses. This is another step away from accountability.

We are also seeing for-profit chains paying out over $100 million in dividends to shareholders while receiving taxpayer money for emergency relief to the same tune.

This is just unacceptable. Clearly, the slaps on the wrist from the regulatory bodies at the provincial level and the pittance that is paid in civil lawsuits are not making a difference.

In the criminal sphere, we have in existence several charges that could be laid against administrators of homes. There is failing to provide the necessaries of life, criminal negligence and criminal negligence causing death. They have never been used against those who have the most power and control over the lives of the residents—the owners, operators, administrators, directors and officers of the homes.

Historically, we've only seen some convictions of staff members for assault or maybe a family member in a private context for not providing the necessaries of life. We have never held anyone in management culpable for the abuse and neglect in long-term care homes and retirement homes. This needs to change.

The administrators of these homes take on a duty to provide the necessaries of life and are paid to do so. They are under contract, and for the most part in long-term care homes across Canada, they are being paid with taxpayer dollars.

The federal government has the power to control two very important mechanisms that would benefit the lives of our most vulnerable—the federal transfer payments to the provinces earmarked for long-term care and amendments to the Criminal Code.

As with the Canada Health Act, the federal government ought to require provinces to comply with national standards for long-term care in order to receive federal dollars for long-term care. This government has currently pledged $4 billion over the next few years to provinces. It would be unconscionable if even one of those dollars ended up in a shareholder's pocket at the expense of a resident.

My group, Canadians 4 LTC, Canadians for long-term care, in conjunction with the provincial and Canadian health coalitions, commissioned a legal opinion from Steven Shrybman, who drafted national standards for long-term care. I would be more than happy to share it with this committee.

With respect to Criminal Code amendments, I know we have already heard from Mr. Graham Webb. I support his recommendations, specifically to criminalize the abuse and neglect of our most vulnerable at the hands of those with the most power—the owners, operators, administrators, officers and directors. The changes would be similar to failing to provide the necessaries of life, like criminal endangerment, and should carry the same penalties.

Accountability should be bookended, with appropriate government oversight and enforcement at the front end and accountability, criminally and civilly at the back end.

Those are my submissions. Thank you very much for listening.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Miller. You're right on time. I appreciate that.

We'll now go to Vigil'Ange.

Ms. Bérard, I believe you'll be speaking. You have five minutes. Go ahead, please.

[Stéphanie Bérard, President, Vigil'Ange]

Thank you, Madam Chair.

Vigil'Ange is an organization that helps vulnerable seniors. It has joined forces with the Centre d'assistance et d'accompagnement aux plaintes, or CAAP, des Laurentides, an organization that supports seniors through the abuse complaint process.

Twelve per cent of the requests made to the Vigil'Ange organization are cases of abuse. The most common types of abuse are financial, material, and psychological abuse, as well as bullying, harassment, threats, control, and ageism. We also note that the common denominators of all these situations are isolation and vulnerability. Also, the abuse is inflicted most of the time by a family member or close friend.

Since the beginning of the pandemic, one of our many concerns has been Internet scams. Indeed, several very complex cases have been referred to us, particularly by investigators from our territory's police department.

In these types of situations, Vigil'Ange's recommended approach consists of extreme delicacy in interventions, interdisciplinary expertise and consultation between the various players in the field. Vigil'Ange respects the person's pace, takes the time to understand what they want and what they feel is best to improve their quality of life, maintain the bond of trust, give them back the power to act on their life, nourish hope, break their isolation, as well as inform them about the services and aid resources adapted to their needs that are available in their territory.

The notions of vulnerability and consent make interventions very complex. This is because a person may be deemed competent to make a decision, but if they are in a vulnerable situation, their judgment may be impaired or influenced by a fear of retaliation.

Also, the notion of consent by the person in need is often tinged with a sense of mistrust, shame, or anxiety. In many of the cases, the abuser is a family member and may have a significant connection to the victim or have a dependent relationship with the victim, as the caregiver may be the victim's child or grandchild.

A family caregiver may also be caring at first, but the relationship with the senior may turn abusive along the way for any number of reasons such as exhaustion, mental health issues, addiction, illness, bereavement, or loss of independence. However, maintaining the link with the person in need remains our priority. Abuse is a very taboo subject, hence the importance of creating a bond of trust with the person in need and respecting his or her pace in the help we offer.

The watch persons or outlooks are Vigil'Ange's eyes and ears in the field, as they maintain a close relationship with the seniors. They are present in their environments and seek our attention in case of situations of concern. Vigil'Ange's outlooks are police officers, community organization workers, doctors and health professionals, but also hairdressers, home care workers, neighbours, friends and community members. Anyone who cares about seniors can become an outlook.

What would be some possible solutions? Offer more training on abuse to frontline workers, such as employees working with seniors, as well as to all staff and professionals who have a close or distant link with a senior clientele; create accommodation and emergency resources adapted to people with reduced mobility, as we have noted that there are none in many regions; do more awareness-raising on topics such as ageism, advocacy and resources available to isolated or vulnerable seniors; better define the notion of vulnerability, in order to facilitate interventions with victims of abuse and thus give more power to frontline workers.

There is also a need to provide more recurrent funding to community organizations working in the field and helping seniors in need, to put in place a protection mechanism to protect the victim from any reprisals when they make a denunciation, and to offer them medium- and long-term psychological support. It is therefore necessary to provide sustained care for the victims in order to ensure their psychological health, to teach them to recognize their limits and know how to express them, and to equip them so that the abuse does not recur.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Madam Bérard.

We'll now go into our first round of questions, starting with Mr. Cooper for six minutes.

Go ahead, sir.

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

Thank you, Madam Chair.

Ms. Miller, you talked about the failure to prosecute administrators, directors, officers and persons responsible for overseeing long-term care facilities in instances of abuse and neglect. You cited some applicable sections of the Criminal Code, including the failure to provide the necessaries of life and criminal negligence. As you noted, under those sections of the code, officers and administrators are not being prosecuted. What is the reason for that? Do you believe that these sections are simply inadequate and that we need additional laws on the books?

You endorsed, in part, what had been proposed at the last committee meeting by Mr. Webb. Perhaps you could elaborate a little more on this to provide me with a bit of a better understanding of the lay of the land and what gaps really need to be closed.

[Melissa Miller]

Thank you, Mr. Cooper.

I think it's a combination of factors, to tell you the truth. The police oftentimes are not quite sure how to investigate these cases. So much of this happens behind closed doors.

For example, with child abuse we have the Children's Aid Society that investigates cases independently. It would likely be helpful to have an independent body. I'm not sure how that could be set up at the provincial level.

On the other hand, the police need to be empowered and trained so that they know how to investigate these matters and to actually charge those who should be charged criminally.

In order to do so, we need some clarity in our Criminal Code, which is where I think Mr. Webb's recommendations come into play. Right now, we only have a precedential value with these Criminal Code sections as it relates to individuals outside of institutional settings who have been charged with criminal negligence or failing to provide the necessaries of life.

I think if we have some clarity in the Criminal Code that actually stipulates that the owners, administrators and operators could be held criminally liable, it would create an accountability at the level of the organization before we even have to think about how to implement these sections. I think it will put some fear where fear should be implemented.

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

Thank you for that.

Mr. Webb noted that, in terms of criminal negligence, obviously we have to establish causation. He noted that can be difficult in a long-term care setting. He also noted more broadly the difficulty of pinpointing, based upon existing Criminal Code provisions, who was responsible for the abuse or neglect in order to effectively prosecute someone.

Would you care to comment on either of those things?

[Melissa Miller]

Yes. Of course there are some difficulties around that, but I think we've seen over the last year while investigations have been under way that we do have enough evidence. Certainly what we learned over the last year.... Take an instance of dehydration. That was extremely common in my practice, even pre-COVID. It is just unconscionable in our society that someone can actually die from not having water placed by their side.

That's usually a systemic issue. The charting is not happening appropriately. The lowest-paid staff members don't appreciate the importance of noting water intake or the placement of a water glass on a side table, for instance.

Those are things that happen at an organizational level from the owners and operators. When it happens consistently, or at any time, it should not be the lowest-paid worker who is held accountable. There has to be accountability at the organizational level, especially when we have chain, for-profit companies turning a profit on the suffering of these residents.

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

You've focused a lot on directors and officers, and I think you make many valid points in that regard. The other two recommendations that Mr. Webb put forward were whistle-blower protection legislation and a criminal endangerment section in the Criminal Code. Do you endorse both of those things?

[Melissa Miller]

I do, yes. I think both are critically important, especially the whistle-blower protection. Again, we're talking about the usually racialized, lowest-paid women who are working at these long-term care homes. They feel they can't say anything or they're going to lose their job or get in trouble. We heard through some of the testimony from Ontario's long-term care commission that this was the case.

We can't have people in fear. Those with knowledge of what's actually going on should not be in fear of holding accountable those who should be held accountable.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Cooper.

We'll now go to Madam Brière for six minutes.

Please go ahead.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Good morning, Ms. Bérard.

My questions are for you.

Can you tell us a little more about your clientele? What are the causes behind the need for support? Have you noticed a change in the needs of your clientele over the past few years, and since the COVID-19 pandemic began?

[Stéphanie Bérard]

Since the beginning of the pandemic, the level of vulnerability of our clientele has been exacerbated. Our clientele is much more psychologically fragile and the cases are more serious than before. Isolation has meant that victims of abuse are left alone with the abuser and reporting is increasingly difficult.

Client support is increasingly difficult to do because the abuser is always present. Then there is no way to get out of it.

The fear of retaliation is an extremely important factor. Therefore, we need to help abused elders by putting in place a protection mechanism, so that they are protected from any retaliation. Seniors are afraid to report their abuser because they don't feel protected. That's really what we're seeing on the ground in terms of the vulnerability of these people. Because of the isolation, often their abuser is the only person they have contact with. Whether it's financial abuse, physical abuse, or emotional abuse, it's very difficult for seniors to live through.

I don't know if I've answered all your questions.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Yes, thank you.

People in abusive situations are afraid of retaliation. Do you have any thoughts on what measures could be put in place to encourage them to report this situation?

[Stéphanie Bérard]

We became aware of another problem that affects shelters. They are not adapted, for example, for seniors with limited mobility. Often they have stairs and no elevator. In fact, there are shelters for battered women, but there are none for vulnerable seniors.

If there were, we could get them out of their dangerous environment and into a shelter so they could rebuild their psychological health while the reporting process takes its course. It's kind of the same philosophy as witness protection. So we really need to protect elders and get them out of the environment where the abuse is taking place.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Earlier, one of the witnesses drew a parallel with the measures in place for children. In your discussions about elder law with your various partners and stakeholders, have you ever heard of measures like that?

In Quebec, many organizations are involved in seniors' rights. So we may be getting closer to the solution.

[Stéphanie Bérard]

Indeed.

The measures put in place for children could be just as effective for seniors. I am thinking in particular of the Youth Protection Branch. There could be an elder protection branch. That would be very welcome in the health care system. This is what we need to help our seniors. The situations we see on the ground are so unfortunate. A senior doesn't deserve to go through that in isolation. So that would be the right direction to go in terms of protecting seniors.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Earlier, you mentioned a few things about early detection of abuse.

In a context where we advocate for home care, what could be done to ensure this detection?

[Stéphanie Bérard]

We are fortunate to have lookouts. The lookout can be the delivery person at the convenience store or the pharmacy, or the hairdresser. These people, who are in the senior's circle, call on us. From that point on, we try to figure out what approach to take to get the senior out of that situation.

We can also reach out to those around us to do prevention. Often a person can do something, but they don't realize it. An exhausted family caregiver, for example, can cause abuse. It's unintentional, but they are exhausted. So family caregivers need support too.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I'm straying a bit from your area of expertise, but do you think something needs to be added to the Criminal Code to criminalize harmful behaviour?

[Stéphanie Bérard]

Indeed.

We realized that in the case of financial fraud, assault, or physical abuse, the Criminal Code applies and the Director of Criminal and Penal Prosecutions can actually act.

However, when we talk about ageism, psychological abuse, hurtful words used, or organizational abuse, there is an issue of accountability. Who is responsible? Is it the employee who commits the act or is it the manager?

The Criminal Code could really close the loop on all forms of abuse, not just with respect to assault or financial fraud. It would be a really nice avenue to reopen the Criminal Code and include all forms of abuse.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.