Justice Committee on May 25th, 2021

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Berkes, for that answer.

To CanAge, there's a lot of discussion about a controlling relationship, people not being on an equal footing. From your work as an advocacy group for older Canadians, can you explain a bit how that evolves and why it's so important that we treat this differently from how we do other matters?

[Laura Tamblyn Watts]

The coercive and controlling behaviour report, which I know this committee was recently reviewing, came out with key recommendations. They dovetail extremely well with elder abuse, as well. Because some of the engagement could include keeping people away from other people, making sure there is an interruption in the flow of their lives, in terms of coercive or near-coercive behaviours, it's CanAge's recommendation that report number 9, “The Shadow Pandemic: Stopping Coercive and Controlling Behaviour in Intimate Relationships”, would be appropriate if expanded to elder abuse and neglect.

For clarity, the recommendation was as follows:

Everyone commits an offence who repeatedly or continuously engages in controlling or coercive conduct towards a person with whom they are connected that they know or ought to know could, in all the circumstances, reasonably be expected to have a significant impact on that person and that has such an impact on that person.

Again, the recommendation from the committee was around considering a hybrid offence with a maximum of five years imprisonment. The expansion of this particular provision would be appropriate to consider beyond intimate partner and domestic violence relationships to include the elder abuse sphere, as well.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

Can you expand at bit? What are some of these typical behaviours that you may see that are crossing the line, as you see it, in that relationship perhaps between caregiver or family member and older Canadian?

[Laura Tamblyn Watts]

It is true that about three-quarters of all abuse and neglect that does not consist of scams or frauds is perpetrated by those closest. That, of course, is analogous to domestic violence and intimate partner violence.

There's blocking behaviour. There is behaviour that keeps people away from activities. There are behaviours that look like stalking, harassment and coercion. They are very much based on not letting them see their grandchildren unless they do these things for them.

It's that exchange of power and control that we think of often in domestic violence relationships that is deeply analogous in elder abuse, as well.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Moore.

We will now move to Madame Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madame Chair, and thank you to all of our witnesses today.

My first question will be directed to Mr. Berkes of the Canadian Bar.

In your presentation, you indicated that you felt the Criminal Code was sufficient to address elder abuse.

Indeed, sometimes when we want to be too specific, we can miss the goal post. However, do you think there should still be some changes to the Criminal Code to better address the problem we are discussing this morning?

[Jody Berkes]

Thank you, Madam Chair, for the question.

I am sorry if I misstated this earlier. To be clear, I do not believe any amendments to the Criminal Code are necessary. We need more vigorous enforcement of the offences that are already there.

As the member pointed out quite rightly, if we craft an offence that is too specific, we may end up creating loopholes, so that if we don't prosecute with such specificity, the guilty might escape on what the public perceives as a technicality, but is really.... Criminal legislation is always strictly constructed and strictly applied because we are dealing with fundamental rights such as the liberty of an accused person.

I would point out that the offence that CanAge and other advocacy organizations propose is exactly the same as the offence of criminal negligence. I can tell you the offence of criminal negligence criminalizes anyone who's criminally negligent who, in doing anything or in omitting to do anything they are obliged to do, shows wanton or reckless disregard for the lives and safety of other persons.

This offence is tailor-made to prosecute elder abuse. Long-term care facilities are under legislative obligations to provide for the needs of their clients. If they act in a way that is harmful or fail to act, in a way that causes harm, this offence squarely criminalizes that conduct. Not only would the perpetrator of that conduct be liable criminally, but potentially the organization would be as well, through the use of sections 22.1 and 22.2 of the Criminal Code. That legislation was brought forward in response to the Westray mine tragedy out east. It allowed corporations to be similarly prosecuted. If you want to get at the heart of profit-making, you must prosecute these corporations.

I apologize if I was unclear before. All of the tools are there in the Criminal Code. We need the will and the training to use them to prosecute elder abuse.

Thank you.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

How can we get these cases reported more often?

[Jody Berkes]

Certainly, we need to start on the ground. Organizations such as CanAge and others have done a brilliant job of educating the police on how to investigate these types of offences in a careful, considered and victim-focused fashion.

We need to ensure that the police who prosecute these offences receive that training. Once a charge is laid, the Criminal Code provides for protections for claimants from accused persons. There are bail conditions and release conditions that require that an accused person not contact directly, or indirectly, an alleged victim, not be within 100 meters, and not be in restricted areas. All of these protections come into play once a charge is laid. The first step would be to help these organizations train the police.

The federal government has a role to play in legislating mandatory minimum standards for long-term care facilities, and in creating centres of excellence where police forces and Crown prosecutors from across the country can be trained in order to have uniform tools, applications and a knowledge-base. All of these are within the federal mandate. All of these would increase accountability for elder abuse, which must be stopped.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thanks again.

I'll now speak to the FADOQ representatives.

I would like to take this opportunity to highlight your two initiatives, “Par la fenêtre” and “Prenons soin des autres: une chaîne téléphonique solidaire”, which enabled you to reach more than 140,000 seniors during the pandemic. I congratulate you on this fine work.

When you called seniors, were there any new problems that you could see? What was the most prevalent problem among our seniors?

[Danis Prud'homme, Chief Executive Officer, Provincial Secretariat, Réseau FADOQ]

Thank you for your question.

We became aware of a very significant problem, which was that people felt very isolated. One of the reasons for this was that there was a temporary pause in home care while health instructions were sorted out. Unfortunately, that temporary pause became very long.

Three-quarters of the people who were receiving care, the majority of them, got worse, because they didn't get the care they needed and because some of the basic things they couldn't do themselves weren't done.

We indirectly witnessed what can be called organizational abuse. Because people were not cared for and their care was stopped, the health of some of them deteriorated, both emotionally and physically.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Prud'homme.

We'll now go to Monsieur Fortin.

Mr. Fortin, you have the floor for six minutes.

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

Thank you, Madam Chair.

I thank all the witnesses who are here today. Their presence and testimony are valuable and will inform our work going forward. Elder abuse is not a trivial topic.

My questions are for the representatives of FADOQ.

Mr. Prud'homme answered the last question, but I am also interested in what Ms. Tassé-Goodman said. Indeed, the issue of increasing health transfers has always been a priority and an essential one, but I think the pandemic has highlighted major funding shortfalls in the health system and social systems in general. I am glad to hear this testimony, which I think is relevant and insightful.

That said, we are dealing with the issue of elder abuse in relation to the services to be provided, but also with a view to determining whether or not new provisions should be enacted in the Criminal Code to penalize the unacceptable situations that our seniors experience.

You probably heard the testimony from representatives of the Canadian Bar Association, who tell us that they believe the necessary provisions are already in the Criminal Code. I can understand their position. Their view is that we need to find a way to implement them and perhaps provide training to the various players in the justice system, judges, lawyers and so on. That is an interesting point of view. I would like to hear from Ms. Tassé-Goodman or Mr. Prud'homme on this issue.

In FADOQ's view, are the current measures in the Criminal Code sufficient to properly regulate everything that can harm the elderly, or should amendments be adopted?

[Danis Prud'homme]

Again, thank you for your question.

There are several aspects to this. In Quebec, there is a complaint review system, and a bill has been introduced to strengthen these reviews, first, and to include complaints related to organizational abuse as a second step. Of course, it doesn't have everything right now, as there are requests to add things.

Also, as the chair mentioned, we have asked the Human Rights and Youth Rights Commission to provide for criminal sanctions when there is neglect, abuse, ageism, isolation, control, in short, anything that involves abuse or violence.

To conclude, the United Nations is currently working on an international convention on the rights of the elderly. This has shown that all over the world, although penal systems exist, there are still a lot of gray areas in terms of different things that affect the elderly, which allows people to escape punishment. So on that side as well, it's very important to make sure that all the details are there.

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

Thank you.

You tell us that you are working on a project to add criminal penalties, but are legal advisors overseeing this work, or are you receiving other types of advice?

The Criminal Code has provisions, but it's often a question of whether or not they're being properly enforced.

Have you looked at this issue? Are the tools currently available being used well or not?

[Danis Prud'homme]

There are two things. In fact, I think we certainly have tools that can do the job if we want to go forward in that direction. On the other hand, the definitions of the various forms of abuse and violence are not specific enough with respect to the tools that we currently have. That's what we're hearing, and that's why we think there needs to be a major overhaul of the complaint review system, as well as the consequences when it is determined that the complaint has merit and there's a prosecution.

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

What type of complaint is not covered?

The Criminal Code already covers assault, murder, forcible confinement, and so on.

Can you think of a specific type of behaviour that is not covered that should be covered?

[Danis Prud'homme]

Actually, it remains to be proven that this would be covered. For example, there are people who forget or fail to give someone medication, forget to provide hygiene care, force-feed them rather than taking the time to feed them, or control the person rather than taking the time to let them do what they can do.

These things are not all black and white in the provisions that we have, and that's why the definitions need to be much more specific about the needs of older people.

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

I understand.

You're talking to me about this in the context of seniors' residences, among other things. In the private realm, for seniors living alone or with families, are there issues of this nature as well, or is it different?

[Danis Prud'homme]

This was mentioned earlier by another witness, but unfortunately we know that seniors often experience neglect or abuse from family caregivers. Yes, it does happen.

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

Thank you.

I would have loved to hear you talk about the UN, Mr. Prud'homme. I know that you worked there for some time. You tell me that they are working on a charter of rights for seniors. It would be exciting to hear more about that, but my time is up. Perhaps someone else can address that in the second round.

Thank you very much for being with us today.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Fortin.

I really 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 all of the witnesses for being with us today.

I want to start with a question for CanAge. I first want to thank you for bringing up the parallel of coercive and controlling behaviour. As I'm sure the witnesses are aware, it's a subject very dear to my heart.

What we heard in testimony on that was that domestic violence legislation often was too incident-focused and too focused on the most severe incidents for it to be used effectively against domestic violence. I'm assuming that's the point you're making here.

Is there something lacking when it comes to patterns of neglect that we're trying to get at here through an amendment to the Criminal Code?