Justice Committee on May 10th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 65 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 8, 2023, the committee is meeting in public to continue its study on Bill C-295, an act to amend the Criminal Code.

Today's meeting is taking place in hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person and remotely by using the Zoom application.

I'd like to make a few comments for the benefit of witnesses and members.

Please wait till I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation, those who are on Zoom have the choice at the bottom of your screen of floor, English or French. Please adjust to the desired setting now. Those in the room can use the earpiece and select the desired channel.

I remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

Now I would like to welcome our witnesses, who are all appearing by video conference today.

First we have, from BC Care Providers Association, Terry Lake, chief executive officer—

[Andréanne Larouche, Bloc, Shefford, QC]

Mr. Chair, have all the required tests been done and are all the witnesses ready to testify?

[The Chair, Liberal, Randeep Sarai]

Madame Larouche, yes, all connections have been tested, so we should be good.

[Lena Metlege Diab, Liberal, Halifax West, NS]

The folks online can't hear us anymore.

[The Chair, Liberal, Randeep Sarai]

Hold on one second. We'll get the clerk to figure this out.

Can you hear me now? Did you hear my introductory comments?

Okay, for those who are not members, at the bottom of your screen, just select the interpretation you'd like. There's English or French, or the floor, if you're bilingual. If you're going to ask questions, use the “raise hand” function if you're online and the clerk and I will do our best to acknowledge you.

I was just about to introduce our witnesses.

From BC Care Providers, we have Terry Lake, chief executive officer, by video conference.

We have the Canadian Association for Long Term Care. Jodi Hall, thank you and welcome.

From the Canadian Federation of Nurses Unions, we have Linda Silas.

I will begin by recognizing Terry Lake, our good friend and frequent visitor to this committee and others, for five minutes, and then we'll go to the next. Then we'll have a round of questions.

It's over to you, Terry.

[Terry Lake, Chief Executive Officer, BC Care Providers Association]

Thank you, Mr. Chair, and good day to members of the Standing Committee on Justice and Human Rights.

I'm coming to you today from beautiful Kamloops, British Columbia, in Secwépemcúl’ecw, the traditional territory of the Tk'emlúps te Secwe̓pemc first nation.

My name is Terry Lake. I'm the chief executive officer of the British Columbia Care Providers Association, which is the largest organization representing contracted providers of long-term care and assisted living in B.C. We comprise both not-for-profit and for-profit organizations and, through our operating arm, EngAgeBC, we also represent private home health providers and independent living providers.

I've been in this role for two and a half years, but previously, from 2013 to 2017, I served as B.C.'s minister of health responsible for seniors' care in the province. In our province, long-term care is provided by health authorities, non-profit societies and for-profit corporations, each responsible for approximately one-third of long-term care residents, of which there are approximately 30,000.

Why this bill? Following the first wave of COVID-19, before vaccination was available, there was indeed serious concern about the impact of the virus on vulnerable residents of long-term care homes. Approximately 80% of deaths in Canada after that first wave occurred in these settings, and we witnessed terrible scenes, particularly in the provinces of Ontario and Quebec, where Canadian Armed Forces personnel were dispatched to care for residents.

Chronically underfunded homes had staffing challenges before the pandemic, and with many staff falling ill to the virus or simply too scared to go to work, residents were sometimes left in terrible circumstances. It's easy to understand the motivation for action to prevent these terrible situations from being repeated. The Speech from the Throne in 2020 indicated that the government was going to do just that, and at that time, I provided a submission to this committee indicating that provisions in the existing Criminal Code already provide measures very similar to what this bill is intended to do. These provisions are found in sections 219, 220 and 221.

Criminal negligence occurs when a person, first, has a duty imposed by law, which would include, of course, regulation of care facilities; second, does or omits to do something and thereby shows a wanton or reckless disregard for the lives or safety of others; and third, thereby causes death or bodily harm.

Also, section 217 of the current Criminal Code says that a person who has authority to direct how another person does work is under a legal duty to take reasonable steps to prevent bodily harm to that person and bodily harm to another person arising from that work.

That's the existing Criminal Code, but of course every province and territory has legislation and regulations that hold operators and employees to account for any neglect resulting in harm to residents. In B.C., the Community Care and Assisted Living Act and regulations include a section called “Harmful actions not permitted”, and this is under regulation 52:

(1) A licensee must ensure that a person in care is not, while under the care or supervision of the licensee, subjected to any of the following:

(a) any of the following types of abuse or neglect, as described in section 1 of Schedule D

These include emotional abuse, financial abuse, neglect, physical abuse, sexual abuse and deprivation of food or fluids as a form of punishment.

Jodi Hall, my colleague from the Canadian Association for Long Term Care, will speak about the chilling effect that these proposed Criminal Code changes could have, and likely would have, on the recruitment and retention of workers in long-term care, but let me just say that staffing is the number one challenge we face in caring for our elders. That was the case before the pandemic, and it's still the case. Anything that exacerbates that challenge will, in fact, result in less care, not more care.

I know this bill was not put forward to make the situation worse, obviously, so what I'm suggesting is that if the government feels seniors in care do lack protection of any type, it should put forward its own legislation that goes through a robust engagement strategy to understand the potential positive and negative outcomes.

I remind the committee that provincial health authorities and municipalities would be impacted by this bill, and there is currently next to no awareness about the bill. Health authority officials in British Columbia expressed surprise when I raised concerns at a recent regular meeting between health authorities and the ministry, and only now are they performing due diligence on this bill.

All Canadians and certainly providers of long-term care services care deeply about vulnerable adults who require complex care in nursing homes. Operators have contributed to the formation of national standards, have supported efforts to train more health care professionals and are determined to continuously improve our system of care. All operators and organizations, like the BC Care Providers Association, will continue to work diligently with all levels of government to make sure that this happens.

With that, I am happy to take your questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Lake.

Before we go on, I want to wish all the nurses out there a happy National Nursing Week. Kudos, and we all celebrate all their great work. Especially during the pandemic, everyone realized the hard and important work that nurses do.

Next we have Jodi Hall from the Canadian Association for Long Term Care.

[Jodi Hall, Chief Executive Officer, Canadian Association for Long Term Care]

Members of the committee, I want to start by thanking you for inviting me to appear before you today to discuss Canada’s long-term care sector.

My name is Jodi Hall, and I am the CEO of the Canadian Association for Long Term Care. CALTC is committed to ensuring quality long-term care for all, and we advocate on behalf of seniors in long-term care homes and our members. Our members include many of the provincial long-term care associations and a range of long-term care operators from non-profit, faith-based, and private corporations.

CALTC appreciates that the spirit of the proposed bill is to protect vulnerable adults, and we support the introduction of legislation that would address elder abuse in Canada. However, the bill before the committee does not accomplish that. If it were to pass in its current form, I believe it is likely to have a devastating impact on the long-term care sector throughout the country.

Long-term care homes are currently facing a number of issues that impact their ability to be sustainable. First, the health human resources crisis is a critical challenge. The latest data from Statistics Canada from the final quarter of 2022 notes that there are over 38,000 vacant positions in Canada in long-term care homes. This is more than double the number of vacancies in 2019.

Provinces are making investments in long-term care, and the leadership and frontline teams in long-term care homes remain dedicated to providing high-quality resident care every day. However, they are doing so with limited resources, and many are in homes that have aging infrastructure.

Our sector needs support. We face significant, systemic issues, including widespread staffing shortages, aging infrastructure and chronic underfunding. These are not new issues. Decades of underinvestment laid the foundation for the perfect storm, which painfully played out through the pandemic and has left homes to continue to struggle today.

In the last election, the government committed to investing $9 billion in long-term care over five years. Unfortunately, we are still waiting for that commitment to be realized. These investments could be used to help support the recruitment of staff, to increase our standards of care and to invest in the much-needed infrastructure that's required.

While long-term care has received more attention as of late, we have not, as a country, come together to talk about creating a sustainable long-term care sector. In the next 15 years, there will be another 10 million seniors in Canada. We need to address the questions around long-term care sustainability, but today we are here to address Bill C-295.

CALTC members are unequivocal in our denunciation of elder abuse in all forms. This bill that has the potential to have a devastating impact on long-term care homes while not addressing the multi-faceted considerations that are needed for elder abuse legislation in Canada.

As well, “manager” is so broadly defined within this bill that it includes almost all long-term care staff. As it stands, this bill focuses on employees in long-term care and only in long-term care, as other settings—for example, a hospital—that provide similar care with similar employees, often to those who are waiting to be admitted to a long-term care home, are not noted.

We believe that this will further increase the challenges around recruitment and retention. Creating further obstacles to recruitment and retention for long-term care is not the way to improve quality or safety in the homes.

All levels of government have the opportunity to work with the long-term care sector to build a resilient path forward. Unfortunately, I believe the bill as presented does not take advantage of that opportunity. Moving forward, the government should launch inclusive consultations with long-term care residents, families, providers and others in the health care system to identify existing gaps in elder abuse protections and how best to effectively address them without causing unintentional impacts, as this private member’s bill will do.

If the committee should choose to proceed with the bill, we ask that at the very least the scope of the bill be not limited to long-term care facilities and long-term care managers but be refocused on all health care settings and all health care professionals so as to not result in inequities in recruitment and retention being directed at long-term care homes alone.

I thank you for the opportunity to speak, and I'm happy to take questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Hall.

Next we'll go to Linda Silas, president of the Canadian Federation of Nurses Unions.

[Linda Silas, President, Canadian Federation of Nurses Unions]

Thank you, Chair, and thank you for acknowledging nurses week.

I'm Linda Silas, national president for the Canadian Federation of Nurses Unions. CFNU is the largest nursing organization in Canada—honestly, in North America—with 250,000 nurses and nursing students.

It's an honour to speak to you today, and thank you for the invitation.

I'll start off by acknowledging the important advocacy this bill is bringing through its sponsor, the honourable Dr. Hedy Fry, who put her conviction into action by advancing this bill through Parliament.

Like Dr. Fry, I too was mortified by what I saw unfolding in long-term care sectors in the months following the start of the COVID-19 pandemic. I also expressed deep concern about the quality of care provided in the sector long before COVID-19. In 2015, CFNU commissioned a report entitled “Before It's Too Late: a National Plan for Safe Seniors' Care”, because we knew that with our aging population and critically understaffed long-term care facilities, we needed to ensure seniors received the care they deserved. In 2015, we sounded the alarm bell.

Since that report was published, little has changed. The residents in these long-term facilities have suffered greatly. Nurses were pleased when the long-term care services standard was released earlier this year, but we know that much more needs to be done. The standards aren't mandatory, so without legislation requiring facilities to carry out the quality of care across the board, including a minimum of 4.1 hours of direct care per resident per day, seniors remain vulnerable.

Dr. Fry's bill allows us to continue shining a light on long-term care. I strongly support the intention of the bill to bring safety and well-being to residents.

I'm not going to quote the Criminal Code. However, nurses are very concerned with the definition of “manager” in the bill. It would create a situation in which workers within these facilities, who do not have senior decision-making responsibilities for the operation or make financial decisions, could be held criminally responsible for the quality of care residents receive.

Tasks associated with the definition of “manager” in the bill are reflective of tasks carried out by unionized nurses in these facilities. For instance, regulated nurses serve in leadership roles within long-term care facilities. They engage in activities such as training and supervising staff. They may be involved in hiring and scheduling of staff and lead the planning and coordination of provision of care to residents. These nurses are not responsible for determining the budget of the facility they work in, leading to how many staff are hired, the extent of the training they receive and other conditions within these facilities that have led to dire outcomes for residents. The actual owners of those facilities, the people who make key decisions around resourcing and quality of care, are often many levels above the nurses on the floor.

We know that in the for-profit long-term care home, the profit motive competed directly with the duty to provide optimal care. In Ontario, data shows that these homes, with significantly higher rates of COVID-19 deaths, employed an average of 17% fewer workers than not-for-profit municipality homes, but they could afford to pay dividends to their shareholders. At a time of an unprecedented shortage of nurses in all areas of nursing across the country, the current wording of this bill could push more nurses out of long-term care and act as an obstacle for recruiting in these especially challenging times.

On behalf of Canada's nurses, I call upon this committee to recommend changes to the definition of “manager” to mean any person who has senior decision-making responsibility for financial and other decisions regarding the fullness of responsibility under the definition of this bill.

Thank you, and I'll answer any question as needed.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Now we'll begin our first round of questions. For those who don't know me, I use cue cards, so when you're down to 30 seconds, watch for the yellow cue card, and when you're out of time, the red one. Try to wrap it up around that time. I don't like interrupting.

I'll begin with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to all of our witnesses for appearing today on this private member's bill. Your expertise is certainly valued.

I will say at the outset that we are all, obviously, against elder abuse, but we want to make sure.... I think one of our witnesses used the expression “unintended consequences”. We want to make sure that whatever we deal with as parliamentarians achieves the goals it sets out to achieve and does not have negative consequences.

I'm going to ask my question to Jodi Hall.

You mentioned challenges that you see within the legislation itself. This is a private member's bill, but at this committee we have the opportunity to consider ideas for amendments from witnesses. Do you have some suggestions that would make this bill more palatable or, in your view, more useful?

The last thing we would want is a piece of legislation that discourages people from taking employment in an area that so desperately needs it. Do you have some suggestions in that regard?

[Jodi Hall]

We remain deeply concerned about the overall scope and impact of Bill C-295 as presented. We feel that many of these challenges are already addressed within provincial legislation and within the Criminal Code as it exists today.

Certainly moving away from this legislation would be our first choice. Second to that, if the committee is putting this bill through, we would ask that they reconsider the definition of “manager”, in that it's specific only to the long-term care manager, as well as the definition of “long-term care facility”. We would recommend that they apply more broadly across the health care system.

For us, when we consider that the intent of this bill is to address elder abuse and that very similar staff would be providing very similar care in a hospital setting, for example, why would this legislation only target elder abuse that would be present in a long-term care environment and not in a hospital setting?

As for recommendations for amendments, it would be to focus on those areas and broaden out the setting and the professionals that the bill would apply to.

[Rob Moore, Conservative, Fundy Royal, NB]

I want to reconcile two things. On the one hand, I'm hearing from some of our witnesses about a broadening, but we're also hearing about a narrowing. Is it correct to say “narrowing” in the sense of how and to whom this legislation would apply within an institution, but “broadening” in the sense that it doesn't create two standards for institutions that are doing similar work—with the example of a hospital versus a long-term care facility—so that one is not disadvantaged compared with the other when it comes to recruitment and the standard that we hold them to? Is it correct that you would also like to see a narrowing within the institution on whom this would apply to, and how?

[Jodi Hall]

To be clear, we do not support this legislation as presented. I want to be very clear on that point.

There are so many serious challenges within long-term care. We feel that the risk it poses to recruitment and retention within the long-term care sector is significant. There are accountability mechanisms already in place within the Criminal Code and within provincial jurisdiction of long-term care legislation, standards, regulations and inspections, just to name a few.

However, if the committee is compelled to put this legislation forward, then in order to address the inequalities that it would create in identifying just the long-term care sector, we would ask that it be broadened to the entire health care sector, especially given that it's meant to address elder abuse.

[Rob Moore, Conservative, Fundy Royal, NB]

Understood. That makes sense.

This committee undertook a study on elder abuse a couple of years ago. There were mixed opinions when it came to amending the Criminal Code. Where there was consensus was on prevention of elder abuse. I think you mentioned that.

When something is before us, we sometimes imagine that there's a complete vacuum of law, but you mentioned provincial regulation that is already in place. Can you speak a bit to that?

[Jodi Hall]

Yes, there are extensive accountability measures in place at the provincial level. It is the responsibility of the jurisdiction of provincial governments to ensure this level of oversight of long-term care homes.

Regardless of the type of home, all long-term care homes would be subject to the provincial regulations and standards. That's not to mention other pieces of legislation that come into play as well, like an occupational health and safety piece of legislation.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm out of time, but thank you to all of our witnesses.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Next we'll go to Ms. Diab for six minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you, Mr. Chair.

Welcome to all our witnesses.

I think we can all agree—the committee and the witnesses—that the impetus of the bill is clear. The member sponsoring the bill addressed the issue of neglect of vulnerable adults, particularly in long-term care facilities, given what we saw during the pandemic and the state of our long-term care facilities at that time.

One thing we're preoccupied with as a committee is preventing the tragedies that were reported by the military when they were deployed from happening again.

Let me ask Mr. Lake and get his views. Do you see this bill preventing those tragedies that took place during the pandemic from happening again?

Second, does it hold the right people to account for those issues? In your opinion, whom do you hold responsible?

[Terry Lake]

It's a complex question, and I think that is why there is a need for a thorough consultation to understand it. We all understand the motivation behind the bill, but to understand the best mechanism to accomplish the goals would, I think, require extensive stakeholder consultation.

If you think back to March 2020—we've all lost track of time, but put your mind back there—we didn't know what we didn't know. All we knew was that there was this virus out there that was deadly, particularly to older people.

Put yourself in the shoes of a long-term care personal service worker, for instance, particularly in the provinces of Quebec and Ontario, at the time when there was a high incidence of virus prevalent in those care homes. First of all, if you were sick, you didn't go to work. However, if you weren't sick and you were afraid for your family, you didn't really know what to do.

If people were that scared to go to work, I don't think this legislation would have compelled them to go. Thankfully, the vast majority of long-term care workers in fact went to work, and those who went to work performed heroically to keep our seniors well and safe.

I think there are better mechanisms. I think Jodi has touched on a few of those.

Properly funding long-term care is one. As you know, long-term care is not covered under the Canada Health Act, and it varies by province. However, generally speaking, the province will pay for a portion of the cost of long-term care, and then the resident and their family will pay the balance. Often that's income-tested.

However, it has suffered from chronic understaffing for many years. There's a bit of a stigma that is applied to health professionals working in long-term care, so they may choose acute care, thinking it's a better form of health care for them to be in. Ageism is part of that. There's no question about it.

The difficulty in recruiting into long-term care has always been a challenge. Anything that makes people think twice about going into long-term care—or home care, for that matter, because this would apply to people providing home care as well—would make them think about other health care settings before long-term care.

I think we could do a lot to protect seniors in care by increasing investment, by increasing hours of care and by increasing the incentives and recruitment and retention strategies—all of which, by the way, the provinces are all working on at the moment.

As Dr. Samir Sinha often points out when he's doing media, Canada underfunds seniors' care by about 15% compared to other OECD countries.

[Lena Metlege Diab, Liberal, Halifax West, NS]

I have another question. I'm not really sure who to direct it to.

Given the complicated staffing structures and the number of people who intersect with a resident, who do you hold accountable if something like that goes wrong, in your opinion?

Second, I think you've all said that there are Criminal Code provisions and provincial legislation. We all know we have 10 provinces and territories. They all probably have different things in their statutes, I suppose. What is missing here? What is the missing link to try to achieve what we're trying to achieve?

Maybe I'll ask you, Ms. Silas. I know it's the nurses union, but I haven't heard from you yet. What would you say to that?

[Linda Silas]

Thank you.

To add to Mr. Lake's presentation, let's be clear: We know what to do. We have occupational health and safety standards that are approved across this country. We have infection control standards that are approved and recognized across this country. We have staffing mechanisms that are approved across this country. What is missing is proper funding for long-term care, home care, and all the regulation and the mandated standards.

This federal government just passed national standards for long-term care, but it's not mandated. That's what has to happen.

It has to be recognized that in long-term care—and Jodi explained that there's a difference between home care, residence care and long-term care—they are sick residents. They're not what we used to see as level one, two, three and four, where the level one folks walk around and go shopping. Most of those in our long-term care facilities are level four, and they need the appropriate 4.1 hours of care.

Ontario is the only province now that has put on paper that they will look at four hours of care by 2025, but again, how it is going to be implemented? It's only with serious funding to our long-term care, matched with the standards and the regulations, to avoid the disasters that happened at the beginning of the pandemic—and let's be honest: Things weren't rosy before either.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Silas. Thank you, Ms. Diab.

We'll next go to Ms. Larouche for six minutes.

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you very much, Mr. Chair.

I thank the three witnesses for being here today.

I will also take a moment to recognize National Nursing Week. This concerns today's witnesses. Nurses are doing an outstanding job.

To follow up on what Mr. Lake said in response to a question, I remain convinced that it is not just health care for seniors that is underfunded, but all health care in general in Canada. That is why I am making a heartfelt plea and, in solidarity with nurses, I continue to call for an increase in health transfers. This is one of the Bloc Québécois' positions, and today's topic is directly related to this increase. We have talked about the importance of the increase we are calling for to bring the federal share of funding up to 35%. We can't think about better funding and better support for staff if we don't also think about better support and more financial resources for the health care system.

That was my little introduction.

I would now like to turn to Ms. Hall.

In response to some questions, you said that Bill C‑295 targeted only specific types of facilities and, therefore, did not meet all the needs in terms of abuse. Abuse does not occur only in long-term care facilities or in one type of residence. We are also seeing a diversification of the types of places where seniors live, and we must take that into account when we talk about abuse. I know that in Quebec, in particular, there is a lot of scrutiny of home care.

You also say in your brief that Bill C‑295 targets only one specific type of abuse—physical abuse—while there are many other types of abuse, including financial abuse and emotional abuse.

Could you comment on the shortcomings of Bill C‑295 in this regard and on the measures that could be taken?