Justice Committee on May 15th, 2023

[Isabelle Desharnais]

The Criminal Code currently contains a set of general offences. As mentioned earlier, it is possible to hold an organization liable under paragraph 215(1)(c) of the code. Section 22.1 of the code ties the organization's conduct to the alleged offence, setting out the circumstances in which an organization is considered to have committed an offence.

The code already contains three offences of negligence. We're talking about negligence under section 215, but it's important to keep in mind criminal negligence causing bodily harm and criminal negligence causing death. The question then comes down to the purpose the bill's sponsor is trying to achieve. That is up to you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Ms. Diab, and thank you to the witnesses. We really appreciate your time. You probably now understand why it was very important to have you here to get some of the nitty-gritty of the bill and how it reflects other parts of the Criminal Code.

You guys are now excused, and we'll just suspend for a minute or two to get the next round of witnesses.

We'll begin in a minute or two.

[The Chair, Liberal, Randeep Sarai]

We're back for the second hour. Welcome back.

We have with us, via video conference, as an individual, Dr. Marie Beaulieu, professor at the Université de Sherbrooke and research chair on mistreatment of older adults. We also have, from the Canadian Network for the Prevention of Elder Abuse, Dr. Sandra Hirst, chair of the board. From CanAge, we have Laura Tamblyn Watts, president and chief executive officer. Lastly, from Elder Abuse Prevention Ontario, we have Marta Hajek, chief executive officer.

You will all have five minutes to make your opening statements, and then we'll begin a round of questions.

We'll begin with Dr. Marie Beaulieu.

[Dr. Marie Beaulieu, Professor, Université de Sherbrooke and Research Chair on Mistreatment of Older Adults, As an Individual]

Thank you, Mr. Chair.

Good afternoon.

I'd like to thank the committee for inviting me to participate in its study on Bill C‑295, which would amend the Canadian Criminal Code by adding provisions related to the neglect of vulnerable adults.

I am here as a researcher who has been working on elder abuse and ways to combat it since 1987, so 36 years. Although I am retired from Université de Sherbrooke, I am still an adjunct professor there, as well as an adjunct researcher with the Research Chair on Mistreatment of Older Adults and the Research Centre on Aging. I am also the co‑director of a centre that works with the World Health Organization to promote senior-friendly environments and combat elder abuse. Not only have I worn many hats in this area, but I am also deeply interested in the issue.

It's not hard to guess the context underlying this bill. The COVID‑19 pandemic, specifically the way it was handled and the impact it had in two types of senior residential or care settings laid bare the organizational dysfunction, which was partly known. These places are congregate living settings for seniors that may or may not provide care and services, as well as residential care settings where both adults and seniors in vulnerable situations live. I want to stress the fact that these two settings are different, something that isn't clear in the bill. I'll come back to that. Both types of facilities employ a lot of administrators, referred to as “managers” in the proposed amendment to section 214 of the Criminal Code.

I want to make six brief points for the purposes of today's discussion.

First, the bill focuses on the organizational dimension of elder abuse or mistreatment. In doing so, it sets aside the common definition of elder abuse, which, implicitly at least, focuses on the interactions between individuals within what is presumed to be a relationship of trust. I applaud the fact that the bill addresses the role that organizations play in elder abuse, because it puts the issue in a broader context, shining a light on community, organizational and institutional dynamics.

Second, the definition of long-term care facility proposed in the bill seemingly does not include congregate living settings known as private seniors' residences in Quebec. They are places that lease accommodations solely to seniors, on a for-profit or not-for-profit basis. Seniors who live there have to be independent or semi-independent. I'd like to understand why the definition excludes those settings. It's even more surprising given that Quebec's act to combat maltreatment of seniors, CQLR c L‑6.3, was amended in the spring of 2022 to include those living settings, among other things. I think that's a discussion worth having.

Third, the bill introduces the idea of vulnerable adults, not vulnerable seniors, and I agree with that decision. Long-term care settings are indeed home to people of various ages who live there because they require the support. Nevertheless, I recommend that the bill use the term “adult in a vulnerable situation”, instead of “vulnerable adult”. When you refer to someone as being in a vulnerable situation, it means that their vulnerability is not inherent and that it may be temporary or the result of specific circumstances. In my view, the term “adult in a vulnerable situation” is both more inclusive and less stigmatizing.

Fourth, the bill focuses on a specific facet of elder abuse—neglect. While I can appreciate why that choice was made, it's important to understand that the line between neglect and violence can be very unclear at times. Keep in mind that neglect can take various forms: psychological, physical, material and financial. There is a lot of crossover with the various types of abuse.

Fifth, discussions with police officers have opened my eyes to the fact that criminal negligence is difficult to prove. Prosecutions and convictions based on those offences are few and far between, and require very specific evidence. Therefore, I would like the committee to consider the applicability of this proposed Criminal Code provision. I look forward to discussing that. What evidence is necessary in order to secure a conviction under the proposed provision?

Sixth and finally, paragraph 215(2)(b) of the Criminal Code refers to conduct that “causes or is likely to cause the health of that person to be injured permanently.” That raises questions in my mind. I wonder about the significance of the word “permanently”, because it should be enough to cause significant injury to the person, regardless of whether it's temporary or permanent.

In closing, I want to say that making these changes through the Criminal Code was a smart decision given the fact that the code applies countrywide. We all know that measures affecting health care run the risk of creating jurisdictional overlap between the provincial, territorial and federal governments.

As my colleagues in the legal field say, I respectfully submit these comments for your consideration. I look forward to our discussion.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we'll go to Dr. Hirst for five minutes.

[Dr. Sandra P. Hirst, Chair of the Board, Canadian Network for the Prevention of Elder Abuse]

Thank you for inviting the network to speak to you today on this important issue.

We commend the committee for its dedication and decision to amend the Criminal Code to acknowledge the abuse and neglect experiences of older adults.

The chronic neglect and abuse of older adults living in long-term care facilities in Canada is a long-standing problem. Two recent reports document the appalling conditions that residents in long-term care facilities experienced during COVID. Legislative support for the recently released Health Standards Organization new national long-term care standards could help address the problem.

However, encounters with elder abuse survivors can occur in hospital settings and in the community. For example, in hospital settings, older adults could be admitted due to existing physical or mental health problems, but also as a result of the abuse, for example, for injuries and malnutrition.

In 2021, the World Health Organization released its “Global report on ageism”. It brought ageism and elder abuse and neglect to the forefront.

Elder abuse and neglect were rampant in our communities and facilities long before COVID. Elder abuse has been a silent pandemic for years. From a 2015 national study, we learned the prevalence rate of mistreatment was 8.2% among Canadians aged 55 and over. That's over 750,000 Canadians. Mistreatment includes physical, emotional, sexual and financial abuse, systemic abuse and neglect, and the violation of rights and freedoms.

We know it exists, but we have no idea of the actual size and nature of the problems of abuse and neglect in the community or in facilities. Our knowledge is incomplete because we lack the type of investigations we urgently need. We need prevalent studies in the community and facilities, substantive theory development and clinical trials to test out interventions, both socially and legally.

CNPEA is one of the many voices calling for elder abuse and neglect to be recognized and addressed at the federal, provincial, territorial and local levels, with an emphasis on prevention and early detection through a collective, sustained effort. Mounting research demonstrates that older adults who experience abuse and neglect are at an elevated risk for a wide range of negative health and well-being outcomes, yet even as the older adult population grows and rates of elder abuse rise across the globe, it continues to be overlooked and perpetrated by individuals within the facilities.

Although awareness of elder abuse is likely to have increased, it remains an ill-defined concept within society and for older adults, specifically. Elder abuse is a complex issue that requires nuanced responses. There is no one-size-fits-all solution, because older Canadians are not a homogenous group. Layers of identity, such as gender, race, sexual orientation, economic standing and disability have a direct impact on a person's risk of victimization and their ability to report and to access social services.

If we are serious about tackling elder abuse and neglect, we need to start by confronting ageism. By the World Health Organization's definition:

Ageism arises when age is used to categorize and divide people in ways that lead to harm, disadvantage, and injustice. It can take many forms including prejudicial attitudes, discriminatory acts, and institutional policies and practices that perpetuate stereotypical beliefs.

It's rarely recognized as the violation of human rights that it is.

Both the WHO and the UN emphasize the importance of age-friendly communities. That includes long-term care facilities. A supportive, age-inclusive community that promotes health and safety and well-being across the lifespan leaves less room for abuse and neglect to breed.

CNPEA has recently completed phase one of a project with a group of partners, entitled “Future Us”. It is a clear and articulated pan-Canadian road map to increase the prevention of elder abuse and neglect. Thanks to funding from the Department of Justice victims fund, we've developed a guide with multiple entry points that will allow us at an individual, organizational, facility or government level to play a role in preventing elder abuse and neglect.

The sector of elder abuse and neglect prevention is a very fragmented one. Not all provinces and territories have a dedicated organization or network, and funding varies across jurisdictions.

I have to edit my comments because of your time limit, so I will jump to our recommendations.

We thank Graham Webb, who made his presentation to the House in May of 2021.

We recommend that, included in the act, the federal government fund organizations that are national in scope and resource a solid infrastructure; table amendments to the Criminal Code that would explicitly penalize elder abuse and, in doing so, consider the offence of criminal endangerment, especially with elements covering the failure to provide care where the contract for care exists; identify and implement mechanisms to protect whistle-blowers in long-term care in consultation with relevant stakeholders; and provide funding to improve training and enhance resources to facilitate investigations.

I would once again thank the chair and the committee for the time to give this presentation.

I would add a personal note that I have worked in long-term care as a registered nurse for over 40 years, so I do have some biases here.

Again, thank you to the committee.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Hirst.

We'll now go to Ms. Watts for five minutes.

For those who haven't seen it, I will raise the 30-second card, just before you run out of time, so please keep that in mind.

Thank you.

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

Hello. My name is Laura Tamblyn Watts, chief executive officer of CanAge, Canada’s national seniors’ advocacy organization. We are a non-partisan, not-for-profit organization that works to advance the rights and well-being of all older Canadians. We thank you for the opportunity to make submissions to you today on this bill.

We know that the context of COVID-19, the long-standing pre-COVID-19 challenges in long-term care and the seniors' health staffing crisis weigh heavy in everyone’s mind for this discussion.

By background, I am a lawyer. I spent more than 20 years working in the field of elder law and elder abuse. I'm past chair of the national elder law section of the Canadian Bar Association. I was a member of the national standards for long-term care advisory and technical committees. I'm also a faculty member at the University of Toronto's faculty of social work, where I teach law and aging. As head of CanAge, I supported the previous JUST committee inquiry in 2021, being in favour of creating a very carefully worded criminal elder abuse charge.

Given that background, it may be quite surprising to hear that I am here to respectfully submit that this bill should not go further. In common parlance, this bill has been heralded by some as very good-hearted but wrong-headed. We thank the sponsor for her passion and commitment to seniors, and we appreciate the emphasis on the issue of institutional abuse. The idea is important, but in our respectful view, the issue does not achieve its stated goal through this legislation.

It also seems, based on the background explanation of this bill, to try to use the Criminal Code as punishment for what we at CanAge believe is a failure of the Canadian funding system or attention on seniors care generally. Seniors need a system that works, not a system that is underfunded and ignored. We need a robust long-term care system, not to punish individuals for working in a system that is actually set up to fail.

Very specifically with regard to this bill, our concerns are threefold.

First, like so many other witnesses have said, we believe that this bill is overbroad in its wording and will have significant unintended negative consequences. The language of long-term care itself does not adequately capture the provincial terminologies, which range from “residential care” in B.C. to “personal care homes” in Manitoba, for instance. The language is imprecise.

Second, there are already existing tools and methods combined with ones we hope and expect to come down from our federal and provincial governments, such as a seniors safe act and perhaps the new promised Criminal Code provisions that we discussed so deeply in 2021.

Third, we also have the adoption of national standards, which have only been introduced in the last few months. While there is a $14-billion price tag, about 67% of long-term care homes have already committed to or are in the process of actually adopting those national standards.

Very specifically with regard to the overbroad wording, we believe that the proposed amendments are drafted in a loose way. We have heard from others that the language around “manager” and the lack of definition for “owner” expose existing and future professionals to increased liability. They would certainly discourage participation in the long-term care sector.

Nobody enters the long-term care profession with the goal of hurting seniors, and the staff are already so traumatized from what they had to go through with COVID-19 that the idea they're going to have additional criminal liabilities targeted specifically at them would, in our respectful view, be catastrophic to recruitment and retention in this area.

Specifically, we also take note of the nurses and their recommendations for a deeper consideration of the impact this would have on them. We note, with some great concern, that this could have even captured our federal Minister of Seniors, who went back into long-term care at a very challenged home in her jurisdiction to help out during a pandemic. Under some of the wordings of “manager”, she might have been captured inadvertently.

We also would like to think about the word “vulnerable”. I note with great pleasure my colleague Marie Beaulieu and her discussion that vulnerability is not an intrinsic issue. Indeed, to call an older person vulnerable as an intrinsic issue, we believe, is ageist. We do underscore the importance of understanding social vulnerability.

Our second point is that the qualifications for criminal misconduct are overbroad and vague as well. These amendments, in our respectful view, do not provide greater clarity. They perhaps trod on the existing Criminal Code and its deep provincial legislative provisions. The problem is not that the authority does not exist. The problem is that nobody uses the existing authority.

Additionally, there's the very well-thought-out and promised charge of criminal elder abuse that we discussed in 2021. We urge the committee to consider that robust set of conclusions instead.

Last, we believe that Canada is unique in the OECD in not having a national seniors strategy. We don't have a national long-term care strategy. We do not have a national elder abuse strategy. Funding to combat elder abuse has not been substantially done—

[The Chair, Liberal, Randeep Sarai]

Excuse me.

Yes, Ms. Larouche.

[Andréanne Larouche, Bloc, Shefford, QC]

The interpretation has stopped, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Can we check interpretation really quickly? We'll just give you a few more seconds to wrap up after. Can you just do a couple of lines?

Can you repeat the last part? You are out of time, so just wrap up the last part.

Thank you.

[Laura Tamblyn Watts]

Thank you.

In conclusion, we believe that Canada is unique among comparable countries in not having a national seniors strategy. We do not have a national long-term care strategy or a national elder abuse strategy. Criminalizing the staff of long-term—

[Andréanne Larouche, Bloc, Shefford, QC]

There's still a problem, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

I'm sorry. I'm going to stop you for a second.

Can we double-check on interpretation again? I think the channel is still an issue.

Go ahead

[Laura Tamblyn Watts]

I only have one second left. I'm just wrapping up.

In conclusion, we believe that criminalizing the staff of long-term care, who are overwhelmingly women and many of whom are newcomers to Canada and racialized people, is not the answer. The answer is to fix long-term care itself.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you. I apologize for the technical difficulties.

Last, we go to Ms. Hajek for five minutes.

[Marta C. Hajek, Chief Executive Officer, Elder Abuse Prevention Ontario]

Thank you very much, Mr. Chair, committee members and fellow panellists.

Thank you for today's opportunity to address the proposed amendments to the Criminal Code through Bill C-295.

My name is Marta Hajek, and I serve as the CEO of Elder Abuse Prevention Ontario. Our provincial organization is dedicated to the prevention of elder abuse. We raise public awareness through educational forums in communities, and we deliver training across all sectors that want to recognize and prevent instances of abuse and neglect.

While we are not legal experts, three decades of experience has made us experts on systemic challenges, those that hinder appropriate and coordinated responses to the silent pandemic. We work to fill the gaps in which too many older adults fall undetected and without support.

Taking action to allow for the prosecution of those with governance and executive authority over practices that lead to predatory or abusive behaviour towards vulnerable persons is good. Being held accountable would encourage owners and executives to better consider the consequences of their investment and operational choices for their clients and society. It would be welcomed.

However, the proposed amendments in Bill C-295 alone will not address those factors that lead to abuse: profit over care, which fosters chronic understaffing; and age discrimination.

Our primary concern remains. We urgently need a national elder abuse prevention strategy, a whole-of-government approach with emphasis on prevention when crafting policy and legislation as well as early detection through collective and sustained efforts.

Elder abuse prevention in Canada is fragmented. Those affected do not have equitable access to the necessary supports. Elder abuse is not a homogeneous issue. Instead it is a complex one. We should all be deeply concerned about its exponential growth.

While the intent to amend the Criminal Code is laudable and may succeed in punishing some who wilfully commit neglectful acts in long-term care settings, it will not significantly reduce instances of abuse. Wider structural reforms to the administration of justice across all jurisdictions are necessary to ensure consistent reporting and convictions. Focusing exclusively on long-term care and using age-neutral language such as “vulnerable” without additional qualifiers is akin to putting even more blinders on our system of prevention and intervention.

While 7% of older people reside in long-term care settings, 93% live at home or in the community. While the devastating Canadian Armed Forces report identified the pervasive nature of neglect and abuse in long-term care settings, instances of reported cases of elder abuse in the community rose 250%. Many more cannot or did not report abuse for fear of humiliation, reprisal, consequences to the abuser or confusion on where to even turn for help.

Elder abuse is a violation of human rights. It carries with it significant negative impacts on our public health and safety systems. Applying an ageism lens to policy considerations for the protection of vulnerable older persons prevents myopic approaches that leave many in our collective blind spots.

Most recently, Elder Abuse Prevention Ontario, as a member of the Canadian Coalition Against Ageism, joined a delegation of Canadians from civil society and government to participate in the 13th open-ended working group on aging at the United Nations. Together, our diverse voices called for the declaration of the UN convention on the rights of older persons. This binding instrument would promote and preserve the dignity, safety and security of all older persons. Canada and the world must do better, because if not now, then when?

At the same time, some Canadian jurisdictions are waiving liability for service providers who fail to provide the necessities of life or provided substandard care during the pandemic. The government, under the Charter of Rights and Freedoms, has an obligation to uphold the rights of older Canadians. This waiving is a step away from that accountability.

Inconsistencies and the lack of a comprehensive national strategy create confusion and do little to prevent neglectful practices from continuing behind closed doors. We cannot any longer allow this to remain unchecked.

Let's be clear. Let's name the issue and define it to inform better data-collection practices and support real, targeted and systemic actions. Let's work together to make sure provincial and federal laws are aligned and federal law enforcement, Crown counsels and the judiciary are better able to recognize and have those instruments to respond to elder abuse and neglect. Let's work across all jurisdictions to enforce standards to ensure that all Canadians have access to places where they can age safely and with dignity.

Finally, let's continue to work together to educate our communities and those who enforce our laws and administer justice, and to provide the supports that people need to advocate for themselves or on behalf of someone else who is unable to do so for themselves.

This is our submission. Thank you for the opportunity to speak today.

[The Chair, Liberal, Randeep Sarai]

Thank you to all of the witnesses.

We'll now begin our first round of questions.

We're just going to shrink the time to five-minute first rounds and four-minute second rounds.

We'll begin with Mr. Brock for five minutes.

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

Thank you, Chair.

Good afternoon, ladies. It was a pleasure to hear your summaries. I want to thank you so much not only for your attendance but also for your leadership and advocacy in this area. We are all going to be part of this aging demographic at some point in time and we need to get this right.

It's unfortunate, however, for many of you who are here that this almost feels like déjà vu. Two years ago we were talking about this issue, and this government has done nothing to advance this by way of passing its own legislation, notwithstanding a throne speech three years ago, notwithstanding mandate letters to the Minister of Justice and the minister responsible for seniors in which they were instructed to bring legislation specifically to address elder abuse across this country. They have done nothing, and it's taken a member of the Liberal caucus to bring a private member's bill.

I asked the particular member last week about why the government has not taken steps and why she did. Her response was, “Someone had to do it.” I don't think that is the appropriate approach to take given the seriousness of this issue, the seriousness of it not only to our elders but also to the industry at large.

I do want to read a couple of passages from a submission this committee received prior to today from the Canadian Association for Long Term Care. I'm going to read out various passages, and I would love to hear from all of you, or some of you, your thoughts with respect to this submission, whether you agree or you do not, and ultimately what you can recommend to those of us on this committee about how we can strengthen this particular bill. You've identified so many flaws in this bill. We really need to collectively work to improve this if we're going to make a difference in the lives of seniors.

I'll start by saying this:

The Canadian Association for Long Term Care (CALTC) is unequivocal in its support for ensuring anyone responsible for elder abuse is accountable, regardless of where and how it occurs. However, this Bill not only focuses on a singular setting, it only considers physical abuse, of which protections already exist...This legislation does not consider the emotional, psychological and financial elements of elder abuse....

...It is our position that the best way to address these gaps is for the government to develop and consult on well-considered legislation that addresses elder abuse in all its forms and in all settings.

...We urge the [government] to recommend against passing Bill C-295 and instead call on the government to introduce comprehensive elder abuse legislation in its place....

CALTC is deeply concerned that this approach is flawed and not well-considered—

That's in relation to the problems with the retention of employees.

—As outlined, the health human resources challenges in long-term care homes are already at emergency levels. By targeting the people who work on the frontlines, providing critical care to vulnerable residents, we expect this legislation to exacerbate these challenges.

Last of all, they put together a recommendation to replace the words “long-term care facilities” with “licensed health care facilities”, thereby ensuring that no matter where care is provided, it is held to the same standard. They also recommend replacing the definition of “owners and managers” with “health care professionals” to ensure that all staff, regardless of their role in providing care, are held to the same standard under the law.

That is for anyone to answer. Please go ahead.

[Laura Tamblyn Watts]

Thank you for the opportunity.

I would offer that CanAge is in strong support of the first two. Actually, my understanding of the CALTC position is that it's not really in favour of amending the legislation, rather it believes this legislation is, by its nature, not constructed to achieve the aims.

We would offer the same thing. We agree with the first two pieces. I don't think this legislation, as drafted, achieves its goals, but certainly we are long awaiting promised legislation from this federal government. We are long awaiting the promises out of 2021, when we all presented, each of us here, at the same justice committee.

It is an opportunity to reinvigorate that conversation. I worry that tightening up the words will not necessarily achieve our goals, and I think that perhaps moving different forms of legislation is the better approach.

[Dr. Sandra P. Hirst]

Can I raise another point?

[The Chair, Liberal, Randeep Sarai]

Go ahead very quickly, please.

[Dr. Sandra P. Hirst]

To address your last statement, it's not just registered nurses and nursing staff. There's a diversity of staff who work in facilities. We have to acknowledge that housekeepers, dieticians and visitors all have to be addressed to prevent abuse.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Dr. Beaulieu, I know you have your hand up, but you'll have to answer in a subsequent question, unless you're having sound issues or otherwise.

I will next go to Madam Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Professor Beaulieu, thank you for being here this afternoon. I had the privilege of hearing you speak when you appeared before the committee as part of its study on elder abuse, which culminated in the June 2021 report entitled “Elder Abuse: Identifying the Issue and Combatting All Types of Abuse”.

You covered a number of elements in your opening remarks. You talked about the importance of considering the two types of living settings and the fact that the bill introduced the organizational dimension of elder abuse, helping to put the issue in a broader context. I'd like to give you an opportunity to say more about that.