Mr. Speaker, I am pleased to have the opportunity to speak on Bill C-439, the Older Adult Justice Act, introduced by the member for Sudbury.
I would like to thank her for the work she has done.
The amendments in the bill propose to establish the office of the Ombudsman for Older Adult Justice and the Canadian Older Adult Justice Agency and to amend the Criminal Code provisions on sentencing.
I would like to assure the House that those of us in the Department of Justice, including the minister and myself, understand that the protection of older adult rights is a serious matter in this country. I listened to all members in the House today and all of us take these rights seriously.
Through the work of the Department of Justice, we hope to attain a balance of the appropriate protection for older adults while maintaining respect for older adults' rights of independence.
Together with the partners that we have in this country, including the provincial and territorial governments, non-government organizations that operate in our community and the private sector itself, the department currently addresses older adult justice issues through strategies that include legal reform, public legal education, information, research and support for various programs and services.
These efforts have included involvement in the federal government's family violence initiative and the national crime prevention strategy, as well as involvement in and support for the work of the federal-provincial-territorial ministers responsible for seniors' safety, and the security working group in the interdepartmental committee on aging and seniors' issues.
I note that some of the members in the chamber have referred to these areas. The department also provides leadership for the federal interdepartmental working group, which is very active on safety and security of seniors.
Many other issues addressed by this bill are addressed by current provincial-territorial laws. That has been pointed out earlier today. To date, the provincial-territorial law addresses the interests of older adults in terms of physical and mental states, for example, issues of guardianship, health law, substitute decision making, and even those areas that relate to dying, for example, wills and estate planning.
There are also offences within current provincial-territorial jurisdiction such as an abuse of the power of attorney. Several jurisdictions in Canada have also enacted social welfare or protective legislation to protect older adults who are victims of physical or sexual abuse, mental cruelty, or inadequate care and attention.
In jurisdictions where adult protection and guardianship legislation is in place, there may be statutory adult protection service programs that offer a combination of legal, health and social services interventions. That cooperation is more important as one ages, particularly the integration of activity.
While we agree with the overall goal of Bill C-439, the Department of Justice will not support the bill in its current form because of the unconstitutional nature of this particular bill. The main constitutional question raised by the bill is whether the bill is within Parliament's legislative jurisdiction under section 91 of the Constitution Act, 1867.
Part 1 of Bill C-439 would establish the office of the ombudsman for older adult justice, responsible for promoting the protection of older adult rights, investigating complaints, and referring to the Minister of Justice matters not settled satisfactorily.
Part 2 of the bill would establish the Canadian older adult justice agency, responsible for providing resources to promote the protection of older adult rights, including information on the prevention, detection, assessment, identification and treatment of older adult abuse, neglect or exploitation.
Parliament does not have direct legislative competence over the rights of older persons in relation to adult abuse, neglect or exploitation outside the context of criminal law. Inside the context of criminal law, we do have this power. In fact, Canadians aged 65 and older had low levels of violent victimization. It is about 1.8%, although they account for 12.7% of the population, and I am quoting 2002 statistics.
Aside from the proposed amendments to the Criminal Code, which do not present the jurisdictional issue, Bill C-439 is not a criminal law measure. Instead, the bulk of the bill is outside Parliament's direct legislative jurisdiction.
The creation of an ombudsman for older adult justice and of a Canadian older adult justice agency could be done federally through the exercise of the federal spending power. The courts have recognized that there is a federal spending power even though it is not mentioned specifically in the Constitution.
The courts have held that Parliament may constitutionally direct the expenditure of money outside its area of legislative jurisdiction so long as the spending statute does not amount in substance to a direct regulation of a matter within provincial jurisdiction. We have heard two of the parties mention this problem earlier today.
Much of Bill C-439 could be accomplished as an exercise of the federal spending power. In general, the ombudsman for older adult justice and the Canadian older adult justice agency proposed by this bill perform non-regulatory functions such as examining issues, making reports, collecting and disseminating information and other like aspects.
There are, however, provisions of Bill C-439 that step well beyond the simple exercise of the spending power and over the line into regulation. This is where we have problems of authority and jurisdiction.
For example, subclause 7(8) of the bill purports to give the ombudsman, in the course of conducting an investigation or study, to require any person to furnish information and to produce documents, papers or things.
Subclause 7(11) prohibits people from obstructing the ombudsman in the performance of the ombudsman's duties and functions under the bill.
Subclause 7(12) makes it a summary conviction offence to contravene clause 7 of the bill, including the ombudsman's right to require information and documents in the obstruction prohibition.
The provisions giving the ombudsman the power to compel information and the production of documents and the offence of obstructing the ombudsman cannot be sustained under the spending power. This is an extension. It is well beyond the jurisdiction. These provisions purport to regulate conduct by imposing legal penalties for failure to abide by the act.
The creation of offences as the most coercive of state regulation of conduct is well outside the scope of the spending power exception. The provisions of the bill I have just described are therefore outside Parliament's power to enact.
There is a similar constitutional flaw in the regulation making power contained in subclause 32(2). This subclause purports to authorize the governor in council to make a regulation, making it an offence to contravene the regulation. Here again, the delegation of this power to create offences exceeds the constitutional basis of Bill C-439, which is the federal spending power.
Having said that, there is no doubt that members in this chamber are interested in all those areas that affect seniors. I applaud the member from Sudbury for raising this. It is a good thing that we are standing in the chamber this hour and another hour, hopefully, to debate these issues and highlight the issues that the member, I know, is very concerned about, and all of us are in our communities.
However, it is not just noble principles that we have to debate in the chamber. We are legislators. We have jurisdictional issues and we should work cooperatively with the jurisdiction that has those areas of responsibility to engage all of us in our communities and make things work properly in a way that we can effect change. It is not our job to spend a lot of time where we cannot be the most effective with the time and resources we have available. We should be working within the jurisdictions, even in the most cooperative manner, to the best benefit of all of our constituents.
No one is saying that these rights and obligations in these areas are not of supreme importance in our communities. Obviously, all citizens are valuable in our communities and older citizens are a special responsibility, just as, as another member mentioned, the youngest citizens.
It is our job as legislators to engage and envelope the ideas, the goals and the values that I think the member is getting at. What she is looking for is an envelope of a bill to address the objectives. The situation with the bill and its present context does not meet the jurisdictional requirement to be supported by the government, the justice minister and the justice department.
Constitutional flaws are serious flaws and we should respect them. Having said that, I do respect all members of the House and their ideas. I think further discussion of anything that could benefit our seniors is a worthwhile use of our energy.
I will end by saying to the hon. member that I look forward to the ongoing debate on this issue. I commend her for her work.