I too want to thank you for giving me the opportunity to present to you. I apologize for the lack of a written submission. I only got the call last week to present, but I will be providing some other written material for your review.
I want to give you a context for my remarks. I work at the Advocacy Centre for the Elderly. I'm the senior lawyer. I'm a legal practitioner. As you can tell from my grey hair, I'm an old lawyer. I've been a lawyer now for 35 years, and I've been at the Advocacy Centre for the Elderly for 27 years.
The Advocacy Centre for the Elderly is a community legal clinic that provides legal services to low-income seniors across the province of Ontario. All of our practice is focused on legal problems experienced by older adults. Almost all of our litigation is related to various forms of abuse. The majority of our casework and client representation involves advice to and representation of older adults who are victims of abuse, primarily by family or close friends, people they expected to trust but who then took advantage of them. We've dealt with the full range of abuse, primarily financial abuse. But unfortunately, we've dealt with cases of sexual abuse, physical abuse, and emotional abuse, many of which were Criminal Code offences.
We also deal with a lot of abuse in the systems that are meant to assist seniors. We call this systemic abuse, and it's all those services that are supposed to provide the supports but that don't necessarily follow the law. We often call this “good law, bad practice”. We see this, for example, in hospital discharge policies. We actually take the position that almost every hospital in Ontario, and I would say across the country, probably has an illegal discharge policy that ignores seniors' legal rights in respect of choice and their role in decision-making in the health system.
In Ontario there's an effort to try to get seniors to pay high per diems that are outside the OHIP ranges. This is just an example that we see in practice, but we see this across all kinds of practice. The diaper example is a good one. The law in Ontario, and I would say, again, across the country, in each province, is that people are intended to be kept clean and dry at all times; having 75% on the diaper isn't necessarily clean and dry. It victimizes the workers and the seniors involved.
We have had experience with hundreds, if not thousands, of abuse cases, and have had experience seeking remedies for our clients. We also have experience doing public legal education on elder abuse prevention and the various legal issues, such as power of attorney. It is a key tool that in fact is not supportive of seniors but is used to financially abuse seniors, even though doing a power of attorney is often promoted in provincial and federal elder abuse campaigns.
I have actually had a lot of contact with the federal-provincial-territorial committee that has been working on elder abuse issues, and I was very pleased that I was asked to contribute to the review of the pamphlets. The pamphlets were amended to reflect that you have to use caution when using powers of attorney. I think those are important messages that come out through those campaigns.
Our primary focus in the education is to seniors, for knowledge of prevention, but also to service providers of all types--health professionals, police, home care workers, and front-line staff in various service agencies--so that they'll know the law, develop their own policies and practice on elder abuse prevention, give a response that is within a legal framework, and challenge their own misconceptions about aging and abuse. Those misconceptions often contribute to the abuse.
Please note that the law on elder abuse is not only about the Criminal Code or adult protection. Krista James, from the Canadian Centre for Elder Law, is actually a friend of mine, and she shared with me her submissions. She ably outlined all of that kind of legislation. I encourage you to look at the materials she's produced.
I can tell you that in practice, we actually use the law across the board. We use family law, privacy law, health law, law in capacity and decision-making, real estate law, and consumer law, all in providing elder abuse response.
What I'm really pitching to you is to look at the broader scope of elder abuse. That's what we use to help our clients. The federal response to elder abuse also needs to look beyond the Criminal Code and elder abuse awareness in a narrow sense. You need to look at the federal role in health funding, housing, legal aid, and privacy, as a few examples.
Because there's limited time, I'm going to go right to some recommendations. The theme I'm going to give you is about training, tools, and time, not necessarily law reform.
First is criminal law. The Criminal Code itself, in my opinion, works quite well. It's good law, but I think some of the practices in respect of the implementation of the law are the real problem.
The Criminal Code includes various sections that respond well to elder abuse. We don't need a special offence of elder abuse. In fact, if you had a special offence, that actually would divert attention from the theft and physical assault and all the different core crimes and would end up limiting a response and create barriers to prosecution.
The Criminal Code also includes sections to accommodate special needs of older victims of abuse in giving testimony and in giving evidence in advance of a trial to both preserve the evidence and to ensure that the prosecution can continue, even if the older witness is unable by physical or mental disability to testify at the time of trial of the accused. There are provisions in the code for audio and video taping of evidence—they're called “KGB statements”—that can be used as evidence.
The Criminal Code sentencing provisions are also good in the sense that if the victim is an older adult, that is taken into account and could be a factor in considering the sentence.
But as to the challenge in the criminal justice system, I would go, again, training, tools, and time. With respect to the training of police officers, I've been involved in a great deal of training at the Ontario Police College and the Toronto Police College. There's a need for training in dealing with investigation of crimes against the elderly in different settings. The police need to know the law related to long-term care, privacy, capacity, retirement homes, home care, and resources in the community to support older victims, especially to help them address the reluctance of older witnesses to testify, or to even complain.
In the course of the education that we do, I frequently have the officers chant “Talk to the senior”, just to get the message across that they need to focus on the senior. Many times in investigations in the past, some officers have told me that they talked to everybody around the senior, but not the senior. It's more challenging to deal with the senior. There may be a communication challenge, or the person may appear more frail than they are. Although they may be still very capable, very able, people will still talk around them. So it's looking more from the senior's perspective.
The next is tools. I have one simple example of tools that the police need. We have provisions about videotaped evidence. I have been told by a number of police officers that they don't have the videotape equipment so they can't take the evidence. How are you going to use those provisions? That's a very important thing. There was a recent Supreme Court of Canada case, Regina v. Khelawon, that dealt with this particular issue. The evidence was thrown out, I think partly because the officers didn't do the whole gamut of things they were supposed to do in order to preserve the evidence. They may not have been supported; they may not have had the tools.
The next is time. We need time to ensure that the police are given time to do investigations of abuse cases. Some of these crimes are very challenging, I know. I've had a lot of contact with the Ottawa police, who have an elder-abuse unit. I can think of one of the offences that the police investigated. It was a case of multiple offences by a PSW who was financially abusing seniors. They were all small amounts of financial abuse. Cumulatively, she had stolen thousands. To do that investigation on all those small bits, the police don't necessarily get the supports to do that. This unit did. But if you're a police officer in Toronto and other cities, they might not get the supports and the time to do that. They would simply say they don't have the time to do it.
So that's training, tools, and time. I now want to go on to privacy. I'm going to say, respectfully, there's a need to amend Bill C-12. This is a bill that's now on the table to amend the privacy legislation, because the amendment to proposed subsection 7(3) will open the door to increased financial abuse of older adults, not increased protection.
This amendment will permit disclosure by federally regulated financial institutions, such as a bank, to the client's next of kin, or the authorized representative of the client, in the belief by the bank personnel that the senior, who is the client of the bank, is a victim of financial abuse. So it's giving permission to the bank to disclose private information about the senior's account on the assumption that the senior is a victim of abuse. Disclosure is to the family members of the senior. It also says to other governmental organizations.
This amendment, to permit the disclosure to next of kin and authorized representatives of the seniors, I think needs to be changed, because those are the abusers. Almost every single case we've had over the years on financial abuse is abuse by family and friends.
This amendment will permit the banks to tip off the potential abusers, to inform them of the abuse. What can the banks do now? The banks actually can talk to their customers. They can start with the senior. If the senior is incapable, they can then contact the governmental institutions. That amendment is fine.
For example, in Ontario, they would contact the Office of the Public Guardian and Trustee, who could investigate the allegation that the senior is not capable. Then, if the senior is capable, they can help provide supports to that senior through assistance in going to the police or a legal organization to address the abuse. Or they could become their guardian to regularize the situation.
So the reports to the public—