Justice Committee on May 25th, 2021

[Laura Tamblyn Watts]

Thank you so much. It's precisely that.

With great respect, I do know that there are, of course, fundamental building blocks: things like assault, theft and criminal responsiveness. However, there is an importance to naming elder abuse. There are gaps in patterns of behaviour around violence that do not necessarily get captured alone.

We also are not afraid of the Kienapple principle, where you may have one or more charges that overcome each other. You may have an impaired driving charge from having been over the 0.08 limit. It doesn't mean that you may not also have an assault, a theft, a fraud or a theft charge pursuant to a power of attorney charge, but that controlling behaviour, that pattern of abuse, is not captured as such in the Criminal Code.

We believe, like we did with other designated offences—such as intimate partner violence, as has been considered by this committee—that elder abuse falls into that category as well.

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

Thank you very much.

I'll go to the Bar Association, then, and ask about the function of denunciation, which I think Ms. Tamblyn Watts is talking about. That as well as listing the specific offences, the Criminal Code does serve a social function in specifically denouncing certain kinds of behaviour as criminal, as not acceptable.

The Bar Association has argued that things are already covered in the Criminal Code. It's hard, then, to explain why charges aren't being laid or why we haven't seen any prosecutions, for instance, of corporations for neglect in long-term care.

Are you really certain that we couldn't get at this better with a specific offence of criminal endangerment that would go alongside other offences, as Ms. Tamblyn Watts points out?

[Jody Berkes]

Thank you very much for the question, Madam Chair.

It's a very good question, and I think the member brings up an interesting point. In that proposed legislation, there is no element that's different from the current element of criminal negligence. All of the elements are exactly the same, so it's not even a kind of an issue; it's a duplication of offences.

It's not that the tools aren't there. It's the willingness to use the tools that are there.

You talk about denunciation. Section 718.2 of the Criminal Code talks about sentencing principles. It reads:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

Subparagraph 718.2(a)(iii) reads:

evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

That is exactly the dynamic that's present in elder abuse, so the code already allows for an aggravating feature to bring a longer sentence, a harsher sentence. That is how society exhibits denunciation, in the sentencing principles. A justice who hands down a sentence is not only entitled to but is obliged to call out that specific dynamic in the elder abuse and to say, “Normally I would sentence you to a year, but I am sentencing you to 18 months to account for the fact that you took advantage of your elderly parent, who trusted you, who raised you, who loved you, who guided you, and who you were obliged to show that same respect to.”

With the greatest amount of respect, that's there already. What we need to do is to get the police and the prosecutors to investigate, and the prosecutors to prosecute.

[Jessica L. Lyle]

With the permission of the chair, I just want to chime in and add one piece to that. I think the focus here today is very much on the Criminal Code, but the bigger point is that this is not just about the Criminal Code; this is about education and using it.

This is why we're talking about a pan-Canadian strategy. This is why we're talking about those minimum standards, but it's also why we're talking about special training for prosecutors, for police, for judges who also, of course, respect judicial independence.

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

Thank you very much, Ms. Lyle, but with the greatest respect to both of you, when you say that it's already in the Criminal Code, elder abuse is not specifically there, so what you're talking about is abuse of trust, and you're expecting those to insert elder abuse into their reasoning.

I want to turn to another proposal, and that is to create an offence that would make retaliation against complaints in places like long-term care an obstruction-of-justice offence. Again, I would assert that while you may say there are obstruction-of-justice offences there already, it might be useful to add a very specific offence with regard to retaliation against complaints in long-term care.

Could I get your thoughts on that?

[Jody Berkes]

Thank you for the question.

In terms of the suggestion that there isn't a specific offence called “elder abuse”, neither is there a specific offence called “domestic abuse”. It's captured under “domestic assault”. “Domestic assault” is a basket term, but the offence of simply assault—

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

Yes, that's why we're proposing a “controlling and coercive behaviour” amendment to the Criminal Code. That's exactly why we're doing that.

[The Chair, Liberal, Iqra Khalid]

Thank you.

My sincerest apologies. We're out of time for Mr. Garrison there. Perhaps we could pick this up in the next round.

We are moving to our second round of questions, starting with Mr. Lewis.

Mr. Lewis, you have five minutes. Please go ahead.

Madame Findlay, I don't see him on the screen.

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

I know he is having Internet connection problems, and for some reason I thought it was Mr. Cooper's turn.

[The Chair, Liberal, Iqra Khalid]

Okay. Well, if Mr. Cooper wants to go ahead....

I have on my sheet here that it's Mr. Lewis, but Mr. Cooper, please go ahead.

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

Go ahead, Kerry-Lynne.

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

All right. It's a little confusing with the Internet issues.

Thank you, all, for being here with us today. We really—

[The Chair, Liberal, Iqra Khalid]

I'm so sorry, Madam Findlay. Can you please move your boom down?

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

Sorry. All right, I have it now. I wasn't expecting to be on right now.

Thank you, all, for being with us today. We certainly appreciate it.

I would like to start with having the witnesses speak to what they felt they couldn't finish in these last questions.

Please go ahead and more fully answer.

[Jessica L. Lyle]

I'm going to jump in here. Thank you for that.

I think part of what seems to be missing from this.... The CBA has two national resolutions, and our resolution that the Criminal Code is sufficient is from 2011. That continues to be the position of the CBA, until we have a change. That is where this position starts with.

Part of our point is that there needs to be a lot more education on a more societal basis. The tools may be there and, yes, possibly they could be enhanced; that's not what the CBA is here to discuss today.

My concern is that, for example, where domestic violence comes to, “We separated the two individuals. We talked to them separately and asked them to figure it out”, on the elder-abuse front, often what creates the shades of grey is the introduction of the issue of dementia. Dementia is time-specific, activity-specific, it's location-specific. There needs to be much more implementation of that national dementia strategy, and having those conversations with all of the members of the justice community so that they understand that just because somebody is apparently incapable at the time doesn't mean that the suspected abuser gets a pass.

That's the point I want to convey. It's so much more than just the provisions of the Criminal Code. It's actually using them, whether there is a new one or it's the existing ones. That, to me, is not the issue. The issue to me is supporting those people on the front lines who are making these decisions, who are in place, so the police who want to lay charges have the support of the prosecutors and judges who understand what's going on. That was really what I was trying to add.

Thank you.

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

That was well said. Thank you very much.

Having a former legal practice and doing a lot of family law that intersected with elder abuse issues, I understand that some of the big issues in prosecution are the willingness of witnesses. Sometimes they themselves maybe don't realize that what is happening to them is abuse. Secondly, they don't realize they have options. Thirdly, when it comes time to prosecute, often older people who are vulnerable, perhaps financially and emotionally, are afraid of the consequences of speaking up.

What I've seen with police officers is often, “Well, if we get them into a safer situation, let's just let it go, because all of that is very complicated.”

I'm interested in what the Canadian Bar Association sees as a way to support elders who are able to come forward. With children, we have things like child advocacy centres, for instance, because children are vulnerable.

Is there something you see as a way forward that perhaps the federal government could fund or support that would help take what is already in the code, or just common decency, into action for the elderly?

[Jody Berkes]

Certainly, Madam Chair. Thank you for the question.

It's an important question, because once again, I think the committee is focused on writing legislation that will somehow magically make this problem disappear and prosecute people. Even new legislation is going to require evidence. Evidence comes from witnesses. Witnesses who are safe and secure and receive proper supports in telling their story tell the most effective story—compelling stories. Those stories are what inform judges, what causes them to adjudicate matters, what causes them to find guilt in appropriate cases where elder abuse has happened.

What you need to do is to fund the same thing in the domestic sphere. You need to provide support to people to help these victims tell their stories. You need to provide resourcing to police divisions, to police associations, to police forces, to allow them to videotape that testimony so when issues of competence arise later, that videotaped testimony can be introduced under section 715.2 of the Criminal Code.

I see that I'm just about out of time.

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

Those are some good suggestions. Thank you.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Findlay.

Now it is Mr. Virani's turn to ask questions.

You have five minutes at your disposal.

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

Thank you, Madam Chair.

First I want to thank all of the witnesses very much for their testimony.

Thank you very much for being here. It's been a very robust discussion.

I'll give a special shout-out to Ms. Tamblyn Watts, who happens to be my constituent as well. Thank you for all of your work in this area, your lecturing in this area in your work with CanAge and for your advocacy, specifically also during this pandemic when advocating for seniors has become the norm for all of us because of what we've seen over these last 15 months.

Let me start with you, Ms. Tamblyn Watts. We've had this rife discussion over the last 45 minutes between amend and don't amend.... I heard what you said most recently to Mr. Garrison. In about 90 seconds possibly, can you give us your perspective on why you feel the current laws are insufficient and that a new charge should be enacted?

Thanks.

[Laura Tamblyn Watts]

There are gaps in the law that do not necessarily meet the underlying basis that we have right now. Police—and I teach police across this country—consistently say that they do not have the tools they need to move from what they know is problematic and criminal behaviour and work with that in the code.

We also know, of course, that many of these behaviours are forms of patterned behaviour like other forms of abusive behaviour, and we need to call those out as well. We need to name abuse before we can even think about responding to it or moving to sentencing. If we cannot name them, if we cannot charge them, we stop there, and that's a problem.

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

Thank you for that. It's a bit about that symbolic denunciation piece that you mentioned earlier as well.

I'm going to pivot to something, and I'm going to ask you first and then Mr. Berkes.

Tell me about the notion of prohibition orders. What I mean by that is this concept. You teach all of this kind of stuff, but for the purposes of everyone's understanding, whether they are current provisions in the code or a potential new provision, if someone is found guilty of some form of elder abuse, and on sentencing, a prohibition order could be issued saying, “Thou shalt not work in a sector that deals with seniors for a period five years, 10 years, etc.”, would that be a good idea? Do we have that tool currently, or would this need to be amended into the code to make that possible?

[Laura Tamblyn Watts]

In my respectful view, there is probably a way you could squint at it right now and try to get people not to work in certain areas. Here, of course, we're looking at paid caregivers, perhaps either in the private pay section or in an institution. There is nothing right now civilly—and I point this out because there is a gap that perhaps the Criminal Code could assist with—that would stop a person who is a paid caregiver in any part of this country, who may have been charged or found guilty of any form of—let's call—it elder abuse, from getting another job. There are no registries available. I am part of the national long-term care technical services standard committee, and that is a piece that we're looking at, but there is nothing there now.

It would be, I think, very important to be thinking about how to make sure that we have prohibition orders for people who have been convicted, and again, it's important to know that we have many, many, many repeat offenders. We're not just necessarily looking at one person and one relationship, but where we have paid caregivers, this tends to be ongoing abusive behaviour.

I think a prohibition order with those types of denunciations in them, with those pieces that would stop or inhibit, would be a very useful tool.

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

Thank you.

Mr. Berkes, I'll give you a chance to address that in about 60 seconds, please.

[Jody Berkes]

I will try to confine it to 60 seconds.

In terms of what is there right now, if someone is found guilty or convicted, they can be placed on probation for a period of up to three years with conditions. One of the conditions would be a prohibition on their working with the elderly.

Second of all, when someone is convicted of a Criminal Code offence, they get a criminal record and they would have to apply after five years to have that record suspension removed. In order to license someone or to employ someone, all an employer has to do is run a criminal background check, and because you're dealing with vulnerable individuals, it would be a vulnerable sector check. Now I know in Ontario that we've just enacted legislation, and if a person had been convicted of an offence involving an elderly person, such as an assault or criminal harassment, that would pop up on that vulnerable sector search, so the employer should be able to find out that the person has a criminal record. Those are two tools.

In terms of denunciation—once again, I apologize if I sound like a broken record—it doesn't necessarily come from having something be a criminal offence. Denunciation comes from educating the public.

We are not going to stamp out impaired driving simply by legislating it. We've legislated against impaired driving for 50 years, and it still happens. It is sustained public education about the carnage on our roads that will finally stamp that out, and it is that same education that will finally bring elder abuse out into the light and hopefully minimize it.