Justice Committee on May 15th, 2023

[Matthew Taylor]

Yes, I would say that it certainly is.

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

I guess the question, then, is how this bill is going to make that more clear or whether it's going to expand the coverage.

I would ask again, in looking at this bill, does it actually expand the offence beyond what is already in the Criminal Code?

[Matthew Taylor]

That's a difficult question to answer, because I think ultimately it will depend on how the courts interpret the duties of the managers or the owners. With the provision you already mentioned, I think it speaks very clearly to the person who has a duty to individuals under their charge.

To the extent that this bill goes beyond that, yes it does, but ultimately it would be for the courts to determine. I think you know as well that oftentimes, with the enactment of more particularized provisions, it can be useful to help remind the system to pay particular attention to an issue of particular concern. Therefore, it has value in that respect as well.

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

Is there other legislation that would be parallel to this? I'm thinking of perhaps the responsibility of owners of corporations for deaths or injuries of workers on the job. Is there anything parallel to this in existing legislation?

[Isabelle Desharnais]

Section 217.1 of the Criminal Code, which flows from the Westray bill, sets out an employer's duty to its employees. Bill C-295, however, addresses the duty of the employer or manager to residents. The provisions aren't quite the same; they don't apply to the same set of circumstances.

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

Where that leads me is that, if we have something that is roughly parallel in the case law around Westray, is there a distinction made between those who have managerial responsibilities in terms of policy and those who have what we call maybe line manager or operational responsibilities? Has that happened in the Westray cases?

[Matthew Taylor]

I'm going a bit by memory, but the Westray provisions did a couple of things. As my colleague spoke about, it created the ability to prosecute corporations for either negligent criminal behaviour or criminal conduct that required subjective mens rea. It did impose a duty on employers who have a responsibility for the safety of their workers.

That isn't exactly what this bill does. This bill is about employers vis-à-vis those in their charge, effectively. It's not an exact parallel in that respect.

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

We did hear concern from especially nurses, who often have what we might call line manager responsibilities, that they might be captured under the broad provisions. There isn't a distinction made in the private member's bill as presented between what I would call senior managerial responsibilities and line responsibilities.

[Matthew Taylor]

I think that's an important question. I think it speaks to the comments of Mr. Naqvi earlier in terms of how, for example, a manager and the responsibilities of a manager are laid out in the bill, and how that overlaps with somebody who isn't the senior manager, to use your term, but who may be acting in a managerial function. Whether it was the intention of this bill to target the personal support worker or frontline worker who, on a given day, assumes the responsibilities articulated, I think, is an important point for you to consider.

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

Thank you for that.

On the question of the different use of labels for facilities across the country, that's something that I hadn't really thought about. I think it's an important point. In this private member's bill, it gives a definition of a long-term care facility.

I'm asking something that you may not be able to answer, but would that cover all those variously titled facilities in the provinces, or do we have something that we need to work on there?

[Isabelle Desharnais]

I can give you a general idea of how it works in other provinces and territories, according to the research done by staff.

A common criterion is a minimum number of residents who are not related to the owner or manager and who live in the establishment for various health reasons. The criterion varies across the country. British Columbia does not refer to these establishments as long-term care facilities and has set the minimum number of residents at three. That number is five in Newfoundland and Labrador. In New Brunswick, it's seven. All that to say, the differences across the country revolve mainly around the minimum number of residents.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll go now to our next round.

Mr. Brock, you have five minutes.

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

Thank you, Chair. I didn't think I was going to get a round. That's a bonus.

Thank you to the witnesses.

I don't believe anyone has asked you a question yet, Mr. Ram. I don't want you to feel left out, so I'd like to get your perspective as a ministry official with the portfolio that you are in charge of. What are your thoughts in terms of how this particular private member's bill will assist in addressing some of the systemic problems we have in long-term care homes?

[Elisha Ram, Senior Assistant Deputy Minister, Income Security and Social Development Branch, Department of Employment and Social Development]

Thank you, Mr. Chair.

I'll start by saying that I'm not a legal professional, so I can't really speak to the specific provisions of the act. I do share the advice that's been provided by my colleagues that this is an area where there is some diversity in terms of how some of these facilities are structured, what they're called and how they're organized. You should give some thought to whether or not the terminology that's used in this bill fully captures the diversity. Keep that in mind.

I would say that there's probably value, as my colleague already spoke to, in terms of increasing awareness of this issue—this private member's bill—and whether or not it actually captures additional behaviour that isn't already covered under other pieces of legislation.

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

If I could interrupt for a moment, you're the Department of Employment and Social Development. Are you concerned about the impact that this private member's bill will have not only on retention issues, given the broad nature of the definition of “manager”, which essentially captures everyone from a janitor, in my view, right up to the potential typical manager of a long-term care facility, but also on the issue of recruitment?

The industry itself is suffering in terms of substantial vacancies across this country—tens of thousands of them. This industry can ill afford, in my view, to have a piece of draconian legislation that is actually going to hurt the industry as opposed to helping it. Can I have your thoughts on that, please?

[Elisha Ram]

Thank you, Mr. Chair.

I would agree with the member that recruitment and retention is definitely an issue in the health care sector writ large, but particularly for long-term care facilities. Our department is doing some work looking at this issue with the Department of Health, and there was some funding provided as part of the health deal recently announced that tries to address some of these issues.

As I said, I'm not a lawyer, and I don't really have a particular view on the scope of the application of this particular private member's bill in the sense that you meant it.

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

Mr. Taylor, leaving aside the obvious, I'm sure you've probably heard from other witnesses before that the government issued a throne speech in 2020 that specifically addressed elder abuse, specifically telegraphing to the industry, and to Canadians, and vulnerable Canadians, that this government was actually going to care and do something about the prevalence of elder abuse.

You have that issue.

You have mandate letters going to the Minister of Justice and the minister responsible for seniors, again, addressing a requirement to amend provisions in the Criminal Code to address these issues. Nothing was done until such time as my colleague, Hedy Fry, brings a private member's bill.

I know the department does not routinely do charter statements for private member's bills, but I'd like to hear from you, sir, because, in my view, the floodgates are going to open substantially if this bill passes with minimal or no amendments. It's going to open up a number of court challenges, particularly from defence counsel. I'd like to know, from your perspective, sir, how you feel about the charter application as it currently stands right now with this particular bill.

[Matthew Taylor]

It's a very good question. Certainly, as you know, when we provide advice to the government as public servants and as lawyers, that advice is protected, but I think you also know that providing charter advice is part and parcel of the work that we do in supporting the minister and the government.

You will also know that with any offence, or any offence creation, most often they raise section 7 considerations—“life, liberty and security of the person”—so certainly that is something that would be looked at and analyzed in providing advice to the government.

I think the only other piece of information that I can offer to you would be to point you to our “Charterpedia” page on the Department of Justice homepage, which contains fairly detailed information on section 7 jurisprudence. Obviously that jurisprudence would inform the development of any advice we would give to a minister of the government.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next, we'll go for the last one to Ms. Diab, for five minutes.

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

Thank you very much, Mr. Chair.

Mr. Ram, I want to continue that same line of questioning.

You talked about the diversity. We've heard from others about the different terminology that is used across the country when we talk about long-term care. I know that you're not a legal person or an expert in that, and maybe that's a good thing. Given your experience, you would know the staffing structure, I guess, and the number of people who interact with residents. Can you tell the committee who we are holding accountable and who we should be holding accountable?

Does this bill do something that you think is not already existing? We've heard other witnesses say—and it was talked about here as well—that there are Criminal Code offences that already deal with some of this. There is provincial legislation in different parts of the country, and different provinces deal with other parts and so on.

What are we missing here? From your experience, what is the gap? What is it that we need to be trying to fill here if there is one? I'm asking for what you've seen on the ground with this kind of stuff.

[Elisha Ram]

Thank you for the question.

We have done some joint work with the provinces and territories, particularly in the context of what we saw during the pandemic. There was actually a paper that was recently done under the auspices of the federal-provincial-territorial forum of ministers responsible for seniors. It took a look at some of the evidence that came out of that experience.

What we've learned is that there are a number of gaps. Those gaps are often around a lack of clear accountability. There was the vulnerable position that seniors were put in, particularly during the time of lockdown when it was very difficult for people from the outside to be able to see into those facilities and maybe understand what was going on. There was the transition to a largely virtual sort of communication, but not all individuals who were living in those facilities had access to the right technology or were comfortable with it. There was little ability for people outside the situation to really perceive what was happening and to speak up or to step in to support those members.

I would say from our perspective that the gaps we would be looking to deal with, not necessarily within the scope of this particular private member's bill, are really to increase that accountability and to create more ways for individuals who are living in those facilities to be able to express what it is they're experiencing, so that they are not left on their own to deal with these situations.

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

From your reading of the bill, what's in it that could help in that?

[Elisha Ram]

I'm not sure that's what this bill is trying to address.

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

Okay.

For the Department of Justice, we've talked a lot about other laws that exist out there. In fact, I took some notes. We were talking about the Criminal Code, but there could be others. Where's the gap? What are we missing?

We know what happened during COVID. We know that some of the institutions were where our elderly were largely affected. We also know that in some of these institutions that's where we needed to care for a lot of them, because a lot of them were not healthy to begin with. We take that into account, but there were also more deaths in those facilities than there should have been. I guess that's the summary, if I can put it that way.

What are we missing? What do we need to do? Who do we hold accountable? Can we hold someone accountable? Is there a gap that we need to try to fix? Is this bill doing that?