Justice Committee on May 8th, 2023

[Hedy Fry, Liberal, Vancouver Centre, BC]

It cannot be under the Canada Health Act, because it never was, so one would have to write it into the Canada Health Act. It would be very difficult, I would think, to open up the Canada Health Act and write in new things—

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

That's why I suggested a safe long-term care act.

[Hedy Fry, Liberal, Vancouver Centre, BC]

One would have to do this as a separate long-term care act, yes.

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

Okay.

In your act, you have a very broad definition of “managers”. One of the concerns I've heard is that a lot of the frontline workers were working in constrained conditions in which the owners and the effective decision-makers restricted the financial resources available, so that they couldn't hire more staff and they couldn't access more cleaning materials.

The concern has been raised that your broad definition of “manager” might include some people who are trying very hard to deliver the care but are constrained by the owners and the financial decision-makers in those institutions.

[Hedy Fry, Liberal, Vancouver Centre, BC]

I think if you read the definition, it talks about people who are hiring and scheduling staff. It talks about the daily operations. It talks about people who are supervising staff. It talks about controlling and evaluating the quality of care. It talks about monitoring the effective implementation. It really doesn't talk about staff who are obeying whatever orders they were given.

We've had word from the report from the 4th Battalion task force that money, saving money, was a big reason for not doing things, but there was also the hiring of staff who were not necessarily qualified, who were inexperienced. Then there was the fact that many of the staff were afraid. They were afraid to deal with people who had COVID. They were scared they would get it.

Again, we have a whole bunch of things that, as you say, a long-term care act would address in terms of certification, registration and who should be working in such facilities.

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

Surely there's a difference, though, between a manager whose job is to schedule staff and even hire staff—who knows there's a bigger need for staff but isn't given the resources to do that.... My concern is about those middle-level managers being captured, unfortunately, in your bill. Perhaps we need to move the definition so that it really only captures those who are making those financial decisions that are crucial to care.

[Hedy Fry, Liberal, Vancouver Centre, BC]

I don't think it's only financial decisions, though. I think even if there are protocols there, we know from the report that there were some people who were managing the daily operations who didn't follow protocols. It isn't only about who pays for the facility and who wants to save money. It's also about people who don't necessarily follow all the COVID protocols they had, or who weren't able to get the staff to be trained, or have trained staff under them. Somebody has to be responsible for that daily care to provide the necessities of life to people under their care.

I mean, we're specifically talking about COVID, but I think if you look at hospitals, hospitals right now are constrained by the idea that they don't have.... They don't have caregivers. They don't have health care professionals. We're trying to hire people. Burnout is a big issue. You couldn't find qualified people to work in these places. Besides, we didn't pay them enough.

[The Chair, Liberal, Randeep Sarai]

Thank you, Dr. Fry.

We'll continue with the five-minute round. I don't see the bells ringing, so I think we're probably not having a vote. We'll continue to the next round.

Mr. Brock, you have five minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you.

Thank you, Ms. Fry, for your advocacy on this bill.

I was just thinking about another line of questioning that I wanted to pursue with you. It's in relation to law enforcement generally.

I don't know if you are aware of this, but my previous background was in Crown prosecutions. I can inform you that my jurisdiction has a number of homes that would cater to vulnerable adults. I've heard numerous tales of abuses, and on a piecemeal basis, various social workers or parental workers would be charged under the existing regime in the Criminal Code.

I know that your bill takes it one step further and takes a look at actual managers and potential owners, but the impression I've always had—I'm looking at the pandemic and all the examples of abuse from coast to coast to coast—is that there still appears to be a general reluctance with policing to lay Criminal Code charges in relation to any extreme cases of abuse when the evidence is there, witnesses have come forward and sometimes pictures are taken. The police will have ample tools before them, yet they will choose not to pursue any sort of relief under the Criminal Code.

My question to you is very, very simple. In terms of the stakeholders that you may have consulted with when you started working on drafting this bill, did you take a look at policing in general and ask them that specific question on why there has been and continues to be a reluctance to hold individuals accountable for this extreme abuse to the vulnerable members of our population?

[Hedy Fry, Liberal, Vancouver Centre, BC]

I actually did not consult with police, but your point is extremely well taken. In the past, the police did not have the definitive definitions and legislation. They had it for child abuse. They could enter and deal with child abuse, because it was very clear under sections 214 and 215 of the Criminal Code. Now that we've expanded the same sections that dealt with child abuse to vulnerable adults, the police have been given some extra tools within the Criminal Code to be able to move where they possibly couldn't in the past.

[Larry Brock, Conservative, Brantford—Brant, ON]

I kind of anticipated that response from you. I would like to know how you reconcile that explanation with existing terminology, existing charges and existing sentencing principles already within the Criminal Code.

Let me just give you an example. Under paragraph 215(1)(c) of the Criminal Code, there already exists a charge of failing to provide the necessities of life to someone in your care. In section 217.1 is failing to take reasonable steps to prevent bodily harm when directing another's work. Then there is the catch-all phrase, “criminal negligence”, which could certainly fall into numerous cases where I have read about and seen abuses during the pandemic.

The definition section early on in the Criminal Code, under section 22.1 says that an organization—such as a long-term care provider—could be considered a party to an offence. In your case owners or managers could be held criminally liable in the same fashion as the principal perpetrator of the actual abuse. We have that already in the code. We already have sentencing provisions under paragraph 718.2(a) that speak about how, wherever you have elder abuse, it could be viewed as an aggravating factor where there's “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”.

Again, it goes back to my earlier question. The police already have the tools. With the exception of, perhaps, defining in your bill the manager component and the owner component, how do you feel your bill provides additional resources to the police that they do not already have?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Again, we have the whole aggravating factor in sentencing, as you well know, but the bottom line is that it is more specific. It is very specific about the facility. In other words, it's not if you're looking after grandma and you have been abusing her. This is about facilities per se, people who own and operate those facilities. It is very specific, so that the police can specifically look after those issues.

I think the other was more general and didn't give the police the tools they needed.

[The Chair, Liberal, Randeep Sarai]

We're 30 seconds over.

[Larry Brock, Conservative, Brantford—Brant, ON]

We'll have to continue this discussion some other time.

[The Chair, Liberal, Randeep Sarai]

Thank you, Dr. Fry, and thank you, Mr. Brock.

We'll next go to Ms. Dhillon for five minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Dr. Fry, for bringing this bill forward.

I would like to start with something I noticed. There is no definition of “elder abuse” in the bill. Would you be open to adding that? If so, in your opinion, what would define “elder abuse”?

[Hedy Fry, Liberal, Vancouver Centre, BC]

First and foremost, I think the bill does pertain to abuse, negligence, etc., in a facility. Remember that this is about a facility. A facility was defined in this bill that I'm doing here. I think what we wanted to do was to steer clear of elder abuse that may happen generally within a family by anyone else who is caring for a person, again, by virtue of marriage and/or blood. There are other parts of the Criminal Code that could deal with clear elder abuse. This is about in a facility that is specifically designed to care for and provide the necessities of life for a person who is a vulnerable adult.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

In your opinion, since this is a matter of urgency and we want to act as soon as possible, a private member's bill was the way to do this. Can you explain what the urgency is for bringing it forward in this manner?

[Hedy Fry, Liberal, Vancouver Centre, BC]

The urgency is that pandemics are with us because of global travel, because we are very mobile as individuals. We go from place to place. Pandemics will happen. Right now, it's a respiratory pandemic. It was COVID, and it was respiratory syncytial virus. It was a bunch of respiratory things. It could be others. It could be blood-borne diseases. It could be spread through fecal matter. It could be spread through blood.

Pandemics are now going to be a thing of reality, and the World Health Organization has flagged that this is a reality. We know that people who are in facilities among other people who may be sick.... The whole idea of transmission from one person to another within a facility is something that we have to think about, because contagious diseases spread in crowds or in places where there are many people gathered together, such as a long-term care facility.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

How would this legislation be better than the status quo?

[Hedy Fry, Liberal, Vancouver Centre, BC]

The status quo didn't work, did it? All these people who died needlessly and who were abused and neglected.... COVID exposed it all.

Now we know that there are some things we must do while we are talking and negotiating with provinces about human resources and all the other things we have to do, and as we are looking at a long-term care act, as Mr. Garrison said. Until then, what if a pandemic blows up tomorrow? There has to be something we can do right now to take care of people who are vulnerable.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

We also know that elder abuse is not well documented here in Canada. There is limited data collection. There is under-reporting for many of the reasons you mentioned during your testimony, like the fear of reprisal, that they are just incapable of doing it, or that they are very vulnerable.

How do you think data collection could be improved?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Legislation and Criminal Code amendments are only one part of a solution to many problems. One of them, obviously, is going to be data collecting, research, education, allowing people to know what their rights are, and a whole bunch of other things, etc.

This is one piece. This is not a catch-all. This is not going to stop everything from happening, but it is one piece. Again, in the Criminal Code we cannot put down things such as research and development, because that's a totally different thing, but I think research data collection is very important. If you can't identify the problem, how can you prevent it?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

There is mention of these concerns that keep coming up that managers or owners are going to have regarding this bill, like there's a lack of people to work for them or it's going to discourage people from working for them, but we also know that long-term care homes are the least monitored. We saw this during the pandemic: It blew up.

It's not like nanny cams didn't catch abuse in the past, though, so how would you respond to these concerns that the owners and managers have?

[Hedy Fry, Liberal, Vancouver Centre, BC]

I think that if the bottom line for owners and managers is profit, cutting back on medications and cutting back on staff, that's a problem. Why do you think that the report showed a lot of the staff were not registered or were not certified? It's because people want to pay them very low wages, so they bring in untrained and unqualified people to work.

A lot of registered nurses wouldn't work for that kind of money and wouldn't work in a place where they knew they were going to be abusing and denying access to protocols and health care to their patients, so these people are free to do whatever they want.

We are trying to stop them from doing that.