Justice Committee on May 15th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 66 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 of Bill C-295, an act to amend the Criminal Code.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application. I'd like to make a few comments for the benefit of the witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, please click the microphone icon to activate your mike, and please mute yourself when you're not speaking.

Since I believe all members and House guests are here today, I don't have to go through the rules of Zoom and whatnot. You're all experienced with this.

For Ms. Larouche, I want to let you know the sound tests have been done and the interpretation services have been verified.

I would like to welcome our witnesses for the first hour.

From the Department of Employment and Social Development, we have Elisha Ram, senior assistant deputy minister, income security and social development. From the Department of Justice, we have Matthew Taylor, general counsel and director, and Isabelle Desharnais, counsel.

They're not going to be making any remarks, so we're going straight into questions. Hopefully, we'll get a full round in before we get our next round of witnesses.

We'll begin with six minutes for Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you very much, Mr. Chair.

Thank you to our witnesses. I appreciate the fact that we have such capable legal expertise in this situation, because we need some guidance.

I spoke with a number of you earlier—all three of you, briefly.

I'll get right into this. I'm going to bring it up on my laptop here to look at the text of the bill.

One of the main questions I have is this. Oftentimes, when we use terms in law, we'll define them, even if they're well known to the public or in the English language. For instance, everybody knows what a manager is, but when we're looking at putting criminal liability on somebody, that word might be something we define in the Criminal Code. To be clear, the word “manager” isn't defined, nor is “owner”. For instance, an owner of a long-term care facility could be somebody.... It's likely to be a corporation. The owner is going to be a corporation, not the shareholder of the corporation, who may themselves be running it.

Is everybody with me so far?

One of the questions I have.... This is the main one and it will probably take up the six minutes. To commit a crime, a person has to do the act. In this case, the act would be a failure to provide the necessities. That's the criminal act involving wrongdoing, but there also has to be an element of intent there. Sometimes, that element of intent might be negligence. That's how it's placed here.

The question I have is this: Is there an issue with the constitutionality of imputing or putting liability on an owner or manager who doesn't necessarily have the day-to-day care of the patient who suffers harm? Is that question clear?

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

I think it is clear, and perhaps I can start.

What I might say to help the committee—I think it's at the heart of your question—is that the failure to provide the necessaries of life, as we would generally understand them.... They would be things like.... The frontline worker provides the care and the food, and administers medicine and things of that nature, whereas the owner or manager may be one step removed from that day-to-day care.

Is that the crux of your question?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes, that's essentially it.

Normally, if you're going to impose criminal liability—or penal sanctions, if you want to put it a different way—there has to be an intent to carry out, or the negligence, which is the intent here. I'm trying not to sound too much like a legal nerd, so everybody can follow. There has to be that connection between the accused person and the act being carried out.

My concern is when an owner or a manager—especially when undefined—doesn't have that necessary connection. I'd like your comments on that.

[Matthew Taylor]

Maybe I'll make a couple of other comments and then perhaps turn to my colleague to augment.

I think I would avoid using the word “intent”. I know you're not meaning it as deliberate because we are talking about a negligence-based offence. The mens rea for this offence is negligence, which requires evidence of a marked departure from the standard of care of a reasonable person in those circumstances. That's the first point I might say.

I think the bill does try to provide some specificity around the concept of manager, although it doesn't say, “manager is defined as”. It does speak to a “person who is responsible for”, and then it enumerates a number of different responsibilities. That doesn't speak to your question about “owner”.

I think you raise an interesting point in respect of wanting the criminal law to be clear and precise, so that those who are governed by it understand what is and what isn't legal, and who the law applies to and who it doesn't.

[Isabelle Desharnais, Counsel, Department of Justice]

I'm going to answer in French, if you don't mind.

Proposed paragraph 215(1)(b.1) refers to the duty of the owner or manager “to provide necessaries of life to residents of the facility”. That can be interpreted in two ways. If the owner or manager directly provides care to residents, that person could be charged with neglect if they fail to perform that duty. In the case of an owner or a manager who does not directly provide care to residents, but who is responsible for the actions of their employees, the concept of vicarious liability comes into play. That concept doesn't apply in criminal law. Under the bill, both interpretations are possible.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

Thank you, too, for that, Mr. Taylor. When you talked about mens rea, I didn't want to get into the Latin too much, but your point is well taken. We have to establish a mens rea component of negligence, in this case.

Ms. Desharnais—

[The Chair, Liberal, Randeep Sarai]

Mr. Caputo, you're out of time now.

Next we'll go to Mr. Naqvi for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

I want to thank the witnesses who are here with their expertise in this matter.

We've been hearing a lot about this particular bill. It obviously addresses a very important issue surrounding what we saw during the pandemic in terms of loss of life, especially those seniors in many of our communities who were living in long-term care facilities. Of course, it's our job as legislators to ensure that we get the various elements of this legislation right.

I think I will pick up on the kind of question Mr. Caputo was asking and ask our experts about the difference between the terms “manager” and “owner”. I want to know their understanding of the difference between a manager and an owner.

What changes can we make to define it better, so that if there's a difference, we can articulate that difference clearly?

[Isabelle Desharnais]

You'll understand that we aren't in a position to provide any legal advice as to what should be amended or changed.

Yes, only the term “manager” is defined in the bill. The definition is based on various responsibilities, which aren't cumulative. The definition of a manager comes into play as soon as the public department establishes one of those responsibilities. It's important to mention that the manager cannot be someone employed on a casual basis, so the definition has two facets.

As for the term “owner”, the definition relies on common sense because it's not set out in the bill. Someone is an owner when they have property rights over something. That is likely how the term would be defined.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Am I hearing from you a suggestion that if we choose to amend this bill, we should add the term “owner” and define it in addition to “manager”?

[Matthew Taylor]

That's a good question. Certainly, providing a definition would provide clarity, picking up on what I said earlier, to Canadians and to the public as to who these groups of people are.

Just to build a bit on my colleague's statement, the concept of owner, a person who is an owner, could also be captured by some of the duties articulated in the clause pertaining to a manager. It is conceivable, for example, that owners could be responsible for hiring or scheduling staff. Under this definition, they would also be captured by the term “manager”.

There is some overlap, and you've also heard witnesses talk about the opposite concern, which is that personal support workers or the frontline workers, who are not generally responsible for the management of a health care facility, might be captured on a case-by-case basis by the duties that are listed under manager.

It's a bit of a long answer to say that providing that kind of clarity would assist those responsible for administering the justice system to understand precisely how these provisions apply and who they should apply to.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I'm okay for now, Chair.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

We will now go to Madam Larouche for six minutes.

[Andréanne Larouche, Bloc, Shefford, QC]

I want to say a big thanks to the witnesses for being here today to discuss this important bill, which deals with an issue we all care about.

I'd like a few things clarified, so I have some short questions. A moment ago, the discussion focused on the need to clarify the terms “owner” and “manager”, and I'll come back to that.

Bill C-295 is adding the definition of the term “long-term care facility” to section 214 of the Criminal Code. That definition could be problematic, however, because it does not mention the fact that those facilities come under provincial jurisdiction. Furthermore, what constitutes a long-term care facility is defined very prescriptively. The definition excludes situations where a senior makes a clear and voluntary decision to reside in such a facility when they don't necessarily lack the ability to care for themselves.

Ms. Desharnais, you talked about the difference between owners and managers. Do you see anything in how the bill defines a long-term care facility that could be problematic?

[Isabelle Desharnais]

It's important to understand that the term “long-term care facility” is used neither exclusively nor universally across the country. Some provinces and territories refer to these facilities as long-term care homes or nursing homes. The definition is based on the assumption that the adults living in the facility have some form of frailty. A person who has some form of frailty for whatever reason and, as a result, requires daily care may need to live in a long-term care facility.

Does that answer your question?

[Andréanne Larouche, Bloc, Shefford, QC]

I take that to mean that it may nevertheless be appropriate to revisit certain aspects of that definition.

Now I'd like to turn to proposed paragraph 215(2)(b), which the bill would add to the Criminal Code. The paragraph refers to the failure to perform a duty that causes the health of the person to be injured permanently. It's good to take into account the individual's health, but my question is this. How does that fit into Quebec's framework, which already regulates those situations under the Act to combat maltreatment of seniors and other persons of full age in vulnerable situations? The act provides for the expanded role of the local service quality and complaints commissioner, among other things.

How does the proposed provision align with existing legislation like Quebec's when it comes to maltreatment? I'd like to hear your view on that.

[Isabelle Desharnais]

Provincial legislation, especially Quebec's, complements the Criminal Code, and the two can work together. Provincial laws serve to establish accountability mechanisms, create complaint or report management committees and empower inspectors, all in an effort to give facilities that provide care to vulnerable individuals more structure. What the Criminal Code does is basically criminalize conduct committed by individuals with criminal intent.

The two pieces of legislation can coexist while trying to achieve different things, although they can have aspects that overlap at certain times. The greater the role of mens rea in the conduct or the more criminal the conduct, the more it moves away from provincial and territorial regulation, at one end of the spectrum, towards the Criminal Code, at the other.

[Andréanne Larouche, Bloc, Shefford, QC]

Elder abuse can take many forms, from physical and psychological to financial. In fact, the Quebec government's video on collaborative intervention processes to combat maltreatment of seniors does a good job of explaining that. How does the bill address the many facets of abuse? Is it applicable in residences where different types of abuse can arise?

[Isabelle Desharnais]

The Criminal Code captures a host of offences that fall under the umbrella of abuse, a general term that covers negligence, sexual violence, financial violence, physical violence and psychological violence. That means the code already includes general offences for assault and sexual violence. The bill, however, deals strictly with neglect and does not address the other types of abuse.

[Andréanne Larouche, Bloc, Shefford, QC]

That means the bill addresses only one specific facet of abuse, neglect. What recommendations could be made to give the bill a broader scope, or do you think it's enough for the bill to focus solely on neglect?

[Isabelle Desharnais]

I can't give you a legal opinion in response to your question. I can say, though, that neglect refers to the duty that is owed by one person to another and the fact that the performance of the duty has potential consequences if it results in permanent injury or is likely to cause injury. The bill's scope is limited to neglect and does not capture all types of abuse.

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Larouche.

We will next go to our last six-minute rounds and Mr. Garrison.

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

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here today.

I want to back up a step from this bill and ask about the existing section of the Criminal Code, subsection 215(1), and I think it's paragraph (c). It's already an offence to fail to provide necessities for someone under their charge, I think that is what it says in that section.

Is it in fact already a criminal offence, without this private member's bill, for long-term care home managers or owners to fail to provide that care?