Justice Committee on May 25th, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order.

Welcome to meeting number 35 of the House of Commons Standing Committee on Justice and Human Rights. We're continuing our study on elder abuse.

Really quickly before we get into the weeds, members and witnesses, please take note of the interpretation that is available for this meeting. At the bottom of your screen, you'll see a globe icon with the interpretation. Please select the language you'd like to listen to. You should be able to speak in any official language you choose.

Please note that before speaking, wait to be acknowledged by me. Also, before you speak, please unmute your mike. Speak slowly and clearly so that translation does not have any issues. Once you're done speaking, please put your mike back on mute.

This is a reminder that all comments should be addressed through the chair. With respect to the speaking list, Mr. Clerk and I will do our best to ensure that everybody who needs to be heard will be heard.

Before we welcome our witnesses, I want to address something very quickly with members of the committee. I'd like to inform you of a situation that occurred last time we met on Thursday, May 13. Due to technical issues, two parts of our meeting on Thursday did not have proper audio on ParlVU. We heard white noise instead. These gaps occurred when Mr. Moore and Mr. Virani were speaking. It was when they were questioning witnesses, specifically. We heard that white noise for a total of 11 minutes.

Unfortunately, it seems unlikely that our technical services will be able to recover the sound for those missing moments. We are expecting a letter from the head of the committees directorate about what happened. We have already received assurances that everything will be done to avoid any reoccurrence like this in the future.

I invite members, if they have any [Technical difficulty—Editor] witnesses.

Okay, not hearing any comments, we'll go ahead—

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

I'm sorry, Madam Chair, from my end you cut out. I couldn't hear you speaking at the end, ironically.

I'm trusting that the Hansard record for those sessions still exists and will appear on the written record. If so, I hope then that the members of the committee will be satisfied with that, but since it wasn't my time that was whited out, I leave it to them.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

I understand that it was recently confirmed that the Hansard records will be available.

Mr. Clerk, would you like to clarify that?

[The Clerk of the Committee, Mr. Marc-Olivier Girard]

Yes, absolutely, they will be.

[The Chair, Liberal, Iqra Khalid]

Okay, they will ultimately form part of our deliberations for the report.

Mr. Virani.

[Arif Virani, Liberal, Parkdale—High Park, ON]

It's regrettable that it happened, but the fact that the Hansard records or the transcription is still available is sufficient for my purposes.

If we can just make sure that this doesn't happen again.... It's a pretty significant matter when parliamentarians are doing their work at committee and the committee records aren't in the form that we're expecting them to be in. If we can make sure that there are different measures put in place to ensure that there are live recordings, audio recordings, visual recordings, etc., on multiple fronts so that this doesn't occur again, that would be appreciated.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Virani. We have been given assurances that all measures will be taken to ensure that it does not happen again.

I want to clarify, Mr. Clerk. For the 11 minutes that are missing, will they be recorded or reported in the Hansard as to what happened in those 11 minutes or not?

[The Clerk]

No, they won't. The Hansard will be published, but without these two gaps, basically because the audio has been.... We have been unable to recover these two gaps. It applies also for our transcription team. There will be these two gaps in the written version of the meeting, unfortunately.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Clerk.

To clarify, we do not have in writing in the Hansard or in audio transcripts those 11 minutes from our last meeting of questions and answers between members and witnesses on this study.

Are members okay with that?

Also, obviously, we're taking steps to ensure that it doesn't happen again.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Chair, that's a bit of a different answer.

I'd be curious to hear what Mr. Moore thinks. The difficulty is that I didn't have the questions I asked in writing. Sometimes things are a bit extemporaneous, so it would be hard to recollect the exact questions I put to the witnesses.

We neither have the video recording nor the written transcription for those 11 minutes. Is that what you're saying?

[The Chair, Liberal, Iqra Khalid]

That's correct.

[Arif Virani, Liberal, Parkdale—High Park, ON]

They can never be retrieved. We've exhausted all possibilities.

[The Chair, Liberal, Iqra Khalid]

That's correct.

Mr. Moore, if you want, you can provide your insight.

[Rob Moore, Conservative, Fundy Royal, NB]

Sure. We have witnesses here, and I don't think anything can be done. Madam Chair, you've probably done everything that can be done. If these comments and questions are lost.... I don't think any of them were ever going to be made into a heritage moment or anything like that. It's being addressed, so I think moving on would probably be the best thing.

[The Chair, Liberal, Iqra Khalid]

All right. Thank you very much for that, Mr. Moore.

Are there any other comments on that? I'm not seeing any.

We'll invite our witnesses and thank them very much for being here today.

From the Canadian Bar Association, we have Jessica L. Lyle, chair, Elder Law Section, and Jody Berkes, chair, Criminal Justice Section.

We also have CanAge, represented by Laura Tamblyn Watts, who is the president and CEO, and Haley Mason, policy officer.

We also have the FADOQ network, represented by Gisèle Tassé-Goodman, president of the provincial secretariat, and Danis Prud'homme, executive director of the provincial secretariat.

Before we go to the opening remarks, I'll draw your attention to my one-minute and 30-second time cards. They will help you keep time for your opening remarks.

We'll start with The Canadian Bar Association.

You have five minutes. Please go ahead.

[Jessica L. Lyle, Chair, Elder Law Section, The Canadian Bar Association]

Good morning, Madam Chair and honourable members of the committee, and good afternoon to those of you in Nova Scotia.

My name is Jessica Lyle, and I'm the chair of the Canadian Bar Association, elder law section. With me today is Jody Berkes, chair of the Canadian Bar Association, criminal justice section. Thank you for inviting the Canadian Bar Association to participate in your committee's study of elder abuse.

I join you today from the traditional territory of the Mi'kmaq people. This territory is covered by the treaties of peace and friendship, which Mi'kmaq and Wolastoqiyik (Maliseet) people first signed with the British Crown in 1725.

The CBA is a national association of more than 36,000 lawyers, notaries, law teachers and academics. An important aspect of our mandate is to seek improvements in the law and the administration of justice. That is what brings us here today.

We would like to commend the federal government's support for older Canadians in the 2021 federal budget. The support comes on the heels of the CBA's recent calls for improvement of long-term care, including the creation of a pan-Canadian elder abuse strategy.

We are not here to recommend any changes to the Criminal Code. Parliament nonetheless has a vital role to play in combatting elder abuse. We recommend the pan-Canadian elder abuse strategy, starting with the following five points:

First, legislate universal minimum standards for long-term care facilities. Clear minimum standards would ensure these most vulnerable members in our society receive the care they need. Additionally, where a facility failed to meet the standards, they would serve as clear evidence for prosecutions.

Second, law enforcement must recognize elder abuse as a criminal offence, not a private matter between families or individuals.

Third, provide specialized and appropriate training to police and Crown counsel for prosecuting elder abuse. A dedicated case management system, including the use of testimonial accommodations, should also be considered.

Fourth, hold corporations that fail to prevent elder abuse in their facilities accountable. Sections 22.1 and 22.2 of the Criminal Code provide that, in addition to the individuals charged, the corporations employing these individuals may be held accountable for the same offences.

Fifth, increase resources for education and community support. For example, legal aid resources and specialized clinics are extremely limited in Canada, with only two permanent clinics: one in Vancouver and one in Toronto.

I will now ask Jody Berkes to address additional issues.

[Jody Berkes, Chair, Criminal Justice Section, The Canadian Bar Association]

Thank you, Jessica.

The criminal offences listed in our submission already cover activities that fall within the category of elder abuse. Furthermore, some of the offences, for example, theft by a person holding power of attorney in section 331 of the Criminal Code, already address a unique aspect of elder vulnerability. We believe increased resources and training around enforcement are better measures to combat elder abuse, not new offences.

One of the most significant issues in elder abuse is the vulnerability of the complainants in a relationship involving a significant power imbalance. There are several tools already in the Criminal Code to provide for testimonial aids to support vulnerable witnesses, such as the use of support persons in the courtroom, allowing witnesses to testify via closed circuit television, which is found in section 486.2 of the code, and an ability in the Criminal Code to use a videotaped statement as a witness's evidence in chief, provided they adopt it at trial, which is found in section 715.2 of the Criminal Code.

We note that the Advocacy Centre for the Elderly and CanAge have suggested the creation of a new offence to this committee. With respect to that position, this proposed offence is already covered by the existing offence of criminal negligence causing bodily harm or death. Additionally, the vulnerability of complainants in the criminal justice system is addressed through the mechanism of release conditions that prohibit contact between the accused and the complainant. Similarly, any attempt to intimidate or dissuade a complainant from testifying is already punishable under the Criminal Code.

Elder abuse and neglect are often cited as being where domestic violence was 20 years ago, when policy was undeveloped and Crown counsel and the police did not have sufficient understanding, tools or clear direction to address the power and control dynamics within the victim-abuser dyad. As a greater understanding of domestic violence evolved, improvements to its framework were made. We suggest that the same approach be employed in the case of elder abuse.

Thank you again for the opportunity to appear today. We look forward to answering questions you may have.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that.

We'll now go to CanAge.

Please go ahead. You have five minutes.

[Laura Tamblyn Watts, President and Chief Executive Officer, CanAge]

Thank you very much, Madam Chair and members of the committee.

My name is Laura Tamblyn Watts, and I'm the president and CEO of CanAge, Canada's national seniors advocacy organization. We are a pan-Canadian, non-partisan, not-for-profit organization. We work to advance the rights and well-being of Canadians as we age and ensure that older Canadians can live vibrant and connected lives.

With me today is Haley Mason, policy officer at CanAge, with whom I will be co-presenting. I will present the first portion of our oral submissions, and Ms. Mason will conclude. CanAge will divide its comments into the three substantive areas: criminal justice reform, prevention and awareness, and responses and research.

Our first recommendation is to create an elder abuse and neglect specific Criminal Code charge. I have studied the work of criminality in elder abuse for more than 20 years, and there is little that indicates that this is not appropriate. With great respect to my colleague, I do think it is time for a criminal elder abuse charge. Police involvement, charging and the criminal justice system have been minimally involved in elder abuse and neglect. There has, by contrast, been frustration from the public and from officers that they do not have the needed tools to adequately respond to the increasing spread and impact of elder abuse and neglect. There is coverage missing.

It's important to create a Criminal Code provision for ease of charging for types of abusive or neglectful behaviour that do not fall squarely within the commonly existing highlighted provisions of underlying offences. There are, quite simply, gaps in the Criminal Code related to elder abuse and neglect that need to be filled. Although having a charge for criminal elder abuse and neglect is important for the goal of deterrence, specific charges make a clear message that abuse of vulnerable older adults is not just a civil matter and provides scope for multiple charges to be laid.

The oft-cited section 215, failure to provide the necessaries of life, is, in fact, a charge very rarely laid. In the elder abuse and neglect context, this charge is typically only laid in the most extreme and profound circumstances, such as leaving an older person in an unheated garage to die of starvation and sepsis due to untreated wounds. Much abusive behaviour of older adults deals with the blocking or restraining of liberty, the invasion of privacy, and predatory types of tracking, grooming, and coercion.

CanAge has had the benefit of reviewing the materials from the Advocacy Centre for the Elderly and is supportive of considering their suggestions for new charges of criminal endangerment. However, CanAge would like to draw attention to the recently considered Bill C-218 on controlling or coercive contact within intimate relationships which this committee has heard recently.

I'm going to turn now to my colleague, Ms. Mason, to continue.

[Haley Mason, Policy Officer, CanAge]

Thank you, Laura.

Our next recommendation is regarding the prevention and awareness of elder abuse and neglect.

Recommendation B.6 is regarding funding. Provide sustained and appropriate funding for elder abuse and neglect response on par with domestic violence funding. Particularly provide dedicated support and funding to the Canadian Network for the Prevention of Elder Abuse, CNPEA, and other elder abuse and neglect response and educational agencies or organizations.

Recommendation 7.B is regarding awareness. Support and implement a national elder abuse response strategy. As part of the NEARS, integrate the new Criminal Code provisions, including training and awareness campaigns.

Recommendation 8.B is regarding data reporting. Require federal, federally funded or federally regulated agencies to collect desegregated data on elder abuse and neglect and the experiences of older adults in segments more defined by narrower age groups. Sixty-five plus is too large a group, and disaggregated data should also include other self-identified characteristics to better understand marginalization and intersectional impacts on older adults.

Next is responses and research.

Recommendation 9.C is regarding PIPEDA. Amend PIPEDA to better allow financial institutions to report abuse. Amend section 7(3)(d.3) to (a) define “financial elder abuse” and “mental capacity”, (b) update the list to whom disclosure can be made, and (c) link to provincial and territorial responses.

Recommendation 10.C is regarding research. Release the groundbreaking elder mistreatment study research “Into the Light” by Dr. Lynn McDonald submitted to government in 2015-16. This landmark report was funded by the Government of Canada, with additional funding from the provinces and territories. It was the largest study in Canada on elder abuse and neglect and one of the largest and leading studies globally. However, for unknown reasons, this study has never been formally released by government. A small portion can be found online.

Additionally, the Government of Canada must invest in research to better understand and respond to elder abuse and neglect, including funding the NICE network.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Mason.

We'll now go to our last, but definitely not the least, presenter, Réseau FADOQ, for five minutes.

Please go ahead.

[Gisèle Tassé-Goodman, President, Provincial Secretariat, Réseau FADOQ]

Thank you, Madam Chair.

Members of the House, my name is Gisèle Tassé-Goodman and I am the president of the FADOQ Network. I am accompanied by Danis Prud'homme, executive director of our organization.

I would first like to thank the members of the committee for this invitation.

The FADOQ network is a group of people aged 50 and over with over 550,000 members. The goal of all of our political representations is to contribute to the improvement of the quality of life of seniors. Sadly, we must once again speak out about the scourge of elder abuse.

In the midst of the COVID-19 crisis, ageist-tinged actions and words have multiplied. In fact, our organization sent correspondence to the Human Rights and Youth Rights Commission, as the rights and freedoms of seniors had been severely curtailed with the lockdown, and age-related invective was rife.

One thing that stands out particularly is the public statement by Patrick Levy, owner of Montreal's Olympia, that people 65 and older should not be admitted to indoor shows and events in order to promote the rapid recovery of this industry. This type of statement is unacceptable, inconceivable and, of course, intolerable.

Although age discrimination is prohibited by the Charter of Rights and Freedoms, too few reports are made about it. Many people are unaware that they are experiencing ageism or lack the courage to take action on it. It is important that the federal government conduct a national communication campaign to talk about this form of discrimination as well as the remedies available to victims.

Age discrimination is common among experienced workers. Invective is rife, and work organization is poorly adapted to the needs of these workers, who bear the brunt of a deficit in continuing education. Statistics show that the unemployment rate increases with age, which indicates particular difficulties for these workers. Our organization hopes that governments will support experienced workers more actively in order to encourage them to remain in the labour market. The measures put in place must address continuing education, guidance services and reintegration for the benefit of these workers.

Abuse of any kind must be condemned and punished. Since abuse is frequently the act of someone close to an older person, it is important to ensure that victims are made aware of this issue. With government funding, workshops could be offered by organizations so that seniors can recognize unacceptable situations. This awareness work must be done primarily in seniors' living environments and places frequented by seniors. It is also possible to approach this topic from a best practices perspective. Our organization puts a lot of emphasis on proper treatment. It is a concept that focuses on the well-being and safety of the individual.

Finally, the FADOQ network wishes to address the issue of organizational abuse. This concept refers to any harmful situation that is created or tolerated by the procedures of organizations responsible for providing care or services, and that compromises the exercise of the rights and freedoms of individuals. For a number of years, the Quebec health care system has been under constant stress. The lack of human resources, successive reforms and the lack of investment in the system mean that patients do not have access to quality care and services.

Nevertheless, provincial and territorial health care funding consumes 40% of their budgets, while the Canadian government funds only 22% of these expenditures. It is important that the federal government provide greater support to the provinces and territories, which are struggling to cope with the burden of rising health care costs. Medical advances and an aging population will increase health care spending for the provinces and territories. In order to make up for this underfunding, Réseau FADOQ is asking the federal government to index the Canada Health Transfer by 6% annually. It would also be appropriate to include a variable that takes into account the aging of the population of the provinces and territories in the calculation of the amounts allocated to them.

I would like to thank the members of the committee for listening to us. My colleague Danis Prud'homme will answer questions. I may choose to answer them as well.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

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

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you to our witnesses for appearing today on this important topic.

To the Canadian Bar Association, you mentioned in your testimony the need to treat some situations as Criminal Code matters and not as private matters. I think I know where you were going with that, but could you expand on that a bit, how some matters involving elder abuse, senior abuse, tend to be grouped more as private family matters and not as the Criminal Code offences they actually are?

[Jody Berkes]

With your permission, Madam Chair, I can answer that.

Thank you for that really important question, which deals with enforcement.

The Criminal Code is there to enforce just sanctions against people who commit criminal offences. In the context of domestic assaults, to borrow an earlier example, 20 years ago when there was an assault in a domestic context between husband and wife, between a boyfriend and girlfriend or between partners, the police would often come in and separate the parties and say, “You guys need to work this out. This is between the two of you.” That left too many victims vulnerable to continued abuse: Abuse was swept under the rug, hidden away from the public view. It was only after a concerted effort by the provinces, by law enforcement and by advocacy groups to bring this kind of abuse to light that things actually started to be prosecuted in the Criminal Code. Now there is robust prosecution.

The same analogy can be drawn in the context of elder abuse. For far too long, police would come in, do an investigation, speak to one of the parties—usually the party controlling the complainant in the matter, the elder in the matter—and say, “You know, they're just crazy”, or they're this, that or the other thing. Care wasn't taken to remove the potential victim from the situation and talk to them one on one in a way that would allow for a different form of communication, talk to them in a way that would account for the fact that he might be afraid to come forward and name their abuser and say, “I am fearful for my life or safety.”

We need training of law enforcement officers on how to ask the right questions in the right way to develop that evidence. Then there needs to be a will to bring these charges forward—not to view this in the context of a purely family matter or private matter where the police come in and just say, “There, there, just calm down. Everyone just separate for a bit. Then we're going to go away.” These cases need to be investigated properly and then prosecuted vigorously. That is the context I am talking about.

Thank you.