Debates of the Senate (Hansard)

1st Session, 41st Parliament,

Volume 148, Issue 131

Thursday, December 13, 2012

The Honourable Noël A. Kinsella, Speaker

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Dagenais, seconded by the Honourable Senator Frum, for the third reading of Bill C-36, An Act to amend the Criminal Code (elder abuse).

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at third reading of Bill C-36, An Act to amend the Criminal Code (elder abuse). Part of the challenge in speaking to a bill on elder abuse is that there is no clear definition of what constitutes elder abuse. To quote the national strategy of South Africa:

It is difficult in a relatively new and changing field to find agreement on a generic term to describe the phenomenon of Elder Abuse.

Definitions are not only needed for “academic” purposes, definitions are needed in legislation and policy where they can compel certain action and direct resources.

Cultural diversities complicate the debate on defining abuse even further.

During Legal and Constitutional Affairs Committee hearings, Senator McIntyre asked the question many times: Should the term “elder abuse” be defined in the Criminal Code? In one response, Laura Tamblyn Watts, a senior fellow at the Canadian Centre for Elder Law, expressed her hope that the notion of elder abuse would not be lost.

In debating this legislation, honourable senators, it is important that we do not lose the notion of elder abuse, the many different forms it takes and the many different people it affects. Whether or not Bill C-36 passes third reading, elder abuse will remain a complex, undefined issue. The people it affects desperately need a comprehensive policy response to prevent, detect and confront abuse. Protecting Canada’s seniors requires more than a simple amendment to sentencing principles. In this case, I am concerned that the amendment could make the problem worse.

Bill C-36 contains three clauses. Only the second is a substantive clause. The second clause would amend paragraph 718.2(a) of the Criminal Code, which deals with principles of sentencing. As honourable senators know, aggravating circumstances give the sentencing court discretion to impose a more severe punishment.

Bill C-36 would add the following seventh aggravating circumstance to the sentencing principles: evidence that the offence had significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. This bill is intended to allow courts to impose a more severe punishment for offenders who commit elder abuse, but it fails to send the message that elder abuse is unacceptable. In fact, it fails to adequately address the problem of elder abuse at all.

Honourable senators, I am compelled to report to you three concerns regarding the bill: First, the inclusion of the word “significant” in the bill is ambiguous and presents undue burden on the prosecutor. Second, unlike the other six aggravating circumstances already included in 718.2(a), this aggravating circumstance focuses on the impact of the offence on the victim and the victim’s personal circumstances. This also places undue burden on the prosecutor and on the victim and contradicts the view that elder abuse is unacceptable in any form. Third, this bill fails to create the safety net essential to preventing, detecting and intervening in cases of elder abuse.

Honourable senators, the words “significant impact” currently appear only once in the Criminal Code in the context of sentencing. I am referring to section 380.1 of the Criminal Code. The last Parliament passed Bill C-21, which added an aggravating circumstance to the Criminal Code in relation to fraud. That bill also used the expression “significant impact.” There is no definition in the Criminal Code of the word “significant.” Neither is there any relevant jurisprudence on the expression “significant impact.”

When Bill C-21 was being considered before the Standing Senate Committee on Legal and Constitutional Affairs, my colleague Senator Wallace raised similar concerns. Senator Wallace asked:

At law, what does “significant” mean? Would that be determined subjectively by the judge or is there, in case law or in statute law, some criteria for determining what is significant as opposed to something that is less or insignificant?

Since Bill C-21 passed, Tremeear’s Annotations, to name one legal reference, has observed that “. . . some of the language used . . . for example, significant impact . . . lacks precision.”

Honourable senators, I am deeply concerned that the use of the imprecise term “significant” will, in the context of this legislation, place an undue burden on the ability of the Crown to prosecute and seek proportionate sentences for elder abuse crimes. The term “significant impact” will lead to many different interpretations of this legislation. Defence lawyers are duty bound to act in the best interests of their clients. The public interest, however, is not served by passing legislation that uses ambiguous terminology.

Honourable senators, there is a difference between law that allows for judicial discretion and law that allows for perversion of meaning and intent. Removing the word “significant” from the bill would not impede judicial discretion. The intent of this legislation is to demonstrate that elder abuse is unacceptable in any form. I agree; it is unacceptable.

In his appearance before our committee, Minister Nicholson expressed his hope that Bill C-36 “will strengthen the Criminal Code’s response in order to ensure that elder abuse cases result in appropriate sentences.”

However, a lawyer’s presentation on the significance of the impact of the offence on the victim should not determine the offender’s sentence. If the abuse constitutes a criminal offence where the perpetrator exploited the person because of his age, the sentence should be more severe. The personal circumstances of the victim should be irrelevant. The inclusion of the word “significant” obscures the meaning of the amendment and confuses the bill’s intent.

Honourable senators, this leads me to my second point. The amendment’s focus on the impact of the offence on the victim is inconsistent with other aggravating circumstances already included in the Criminal Code. The amendment will cause further harm to victims and discourage them from reporting and supporting prosecution on elder abuse.

Senator Fraser asked a question on this issue during the committee hearing. She said:

What really struck me about this bill is section 718.2 in the Criminal Code lists six aggravating factors, so this would be adding a seventh. This is the only one that talks about the impact.

All the others simply say it is an aggravating factor if it was motivated by hate or bias or prejudice, if it involved abuse of a spouse or a common law partner, if it involved a victim under the age of 18, if it was a terrorism offence.

There is no mention in there of the nature or degree of the impact.

Why [is the government] tying this [aggravating circumstance] to impact?

The answer that Senator Fraser received largely focused on section 380.1 of the Criminal Code, which deals with fraud and which I discussed earlier. Unfortunately, honourable senators, the answer did not address directly why this seventh aggravating factor should be fundamentally different from the others already included in section 718.2.

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The most concerning consequence of the focus on impact is that it will compel victims of elder abuse to participate in a kind of double trial: first, at the trial itself; and second, at the sentencing hearing. After the initial trial, victims will need to participate in sentencing hearings so that the judge can determine and the lawyers can debate the impact of the offence on the victim. I am not convinced that a simple victim impact statement will satisfy the requirements of this aggravating circumstance. Impact is relative and subjective. Interpreting it in a courtroom would be incredibly difficult for victims and their families. This is especially true given that elder abuse often occurs in the family context.

Dr. Naila Butt, Executive Director of the Social Services Network, testified before the committee. About the South Asian community, she said:

. . . you should not wash your dirty linen in public. That acts as a deterrent for people to communicate. In this community, because of the background they come from, the state is not responsible for the children. It is the parents’ responsibility, more so a mother’s responsibility, so the success of a child or the failure of a child is directly attributed to the parents.

Ms. Maxine Lithwick, Director of Social Services at the Montreal Jewish General Hospital told the committee when asked how easy it would be for an abused person to relate their personal circumstances in an open court:

Very difficult. That is why I think we have work to do. If we want people to bear witness, we have to change how we do so. They have to be in an environment where they feel comfortable to talk, especially if the abusive person is a member of their family.

Honourable senators, I cannot stress this point enough: Legislation that would compel victims to share the impact of their abuse in open court not once but twice will have a devastating, aggravating impact on victims. It will discourage victims from coming forward. During the committee hearings, Dr. Butt also commented on the cultural and linguistic barriers that many victims of elder abuse face. She stated:

There is a strong fear of bringing shame to the family. It is considered a shame if someone from outside is brought in to help with your elder parents. They do not know where to go for services and what their rights are. The most significant stresses that they experience relate to the migration and settlement processes such as language barriers, cultural conflict, loss of their social support system and their changing role in Canada.

Stress and poverty at home affects their physical and mental health, leaving them isolated, frustrated and depressed. . . . Seniors fear that accessing mainstream service agencies and their intervention may result in family breakup, which is of prime importance.

Honourable senators, here is where the notion of elder abuse, the many different forms it takes and the many different people whom it affects, becomes essential to our consideration for an appropriate policy response.

My third and final point regarding this proposed legislation is that the most effective way to help victims of elder abuse is through support safety networks for elders. The concept of safety networks was brought to my attention in Winnipeg by Ms. Bernice Cyr, Executive Director of the Native Women’s Transition Centre. She said:

I think the biggest piece that I have seen in my experience is weighing safety with risk. We deem those who have been victims of economic violence, systemic violence, violence by men at risk; we do not look at safety nets. This is a big philosophical change in attitude in terms of legislation. If we are looking at how to make change, we have to look at building safety networks around our families, our women, our children and our elders. This is a big piece when we look at how we fund, how we decide what sectors we sow, building safety networks and help agencies like the ones sitting in front of us today if we are going to have the change in philosophy.

Honourable senators, I deeply regret that the Standing Senate Committee on Legal and Constitutional Affairs did not hear from Ms. Cyr during the study on Bill C-36. However, it is possible to consider Ms. Cyr’s testimony because it was provided before the House of Commons study on the rights of First Nations people who live off-reserve in the context of elder abuse. She said that the policy on elder abuse focuses overwhelmingly on mitigating risk. Ms. Cyr’s perspective is extremely valuable. Honourable senators, it prompts us to reconsider our approach.

The best way to address elder abuse, as so many witnesses told us, is to focus on building safety networks that support women, children, elderly people, disabled people, new Canadians, Aboriginal people and other vulnerable members of our society.

In her testimony, Dr. Butt gave us a picture of elder abuse in the South Asian community. She was asked what more can be done, and she said that more support and funding are needed for South Asian senior programs that are delivered by agencies and run by and serving South Asian people. Agencies need to provide education and support to seniors and families before and after the immigration process in their own language and from people who are from their own culture. Mainstream front-line health and social service providers need to receive sensitivity training on identifying the distinct signs and symptoms and appropriate ways to intervene. Communities need more culturally and linguistically sensitive family counselling programs, more support for adult children and caregivers, public awareness campaigns in faith settings, and South-Asian-specific emergency residential centres.

Honourable senators, in any community elder abuse is a complex issue. It must engage professionals from across all sectors. Several witnesses highlighted the need for a multi-sectoral approach, including Ms. Lithwick of the Jewish Montreal Hospital, who said:

. . . Police officers, social workers, and community organizations need to work closely together. Training for police, prosecutors and judges on elder abuse is essential. In fact, with the growing proportion of elderly, it would make sense that there are specialized and trained multi-sectorial teams that intervene when a crime against the elderly has been committed, and it also has to take into account cross-cultural issues.

Honourable senators, witnesses presented recommendations to the committee that centered on active prevention and sensitive intervention. The recommendations focused not only on mitigating the risk of elder abuse but also on supporting victims’ access to services and supports. Ms. Lithwick commented that there are situations where a criminal resolution is not necessarily the best solution. Moreover, as I discussed in detail in my speech at second reading, many forms of elder abuse are not criminal but victims of these forms of abuse still need support or safety networks. Those safety networks need to be accessible, adapted to the victim’s language and cultural background and supported by a range of professionals from many different sectors. Ms. Catherine Drillis, Co-chair, Legal Team, National Initiative for the Care of the Elderly, testified before the committee. She said:

. . . a national strategy on prevention and response to elder abuse should be created and implemented.

Appropriate safety networks should be made available to all elderly people across Canada, including women, Aboriginals and new Canadians. These groups, honourable senators, are disproportionately affected by elder abuse. They desperately need access to safety networks. I commend the government for funding an elder abuse awareness campaign. It has identified the risk, but it has not provided the safety networks. Where and to whom do victims of elder abuse turn?

Honourable senators, throughout my legal career, I have worked with people who have faced challenges in the form of violence and abuse. Sadly, many have been older people. Sadly, and I am not proud to say this, many have been from the South Asian community. I believe that we have to name the kind of violence and identify who it affects before we can work to stop it. You have to name violence to stop violence.

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I have encountered many cases of elder abuse. Today I want to share with you the story of a South Asian couple who are in their eighties whose lives changed when they were in their late seventies and became dependent on their children.

They had immigrated to Canada at a very young age, and all four of their children were born in Canada. All their children attended university and were earning very good money. The parents worked outside the home and also cared for their grandchildren. Unfortunately, when the parents started losing their health, problems began. At first, it was when their son and his wife forgot to buy groceries. Their children were very busy. Then the children left their parents alone for extended periods of time while they went on holidays. The other children were supposed to help out, but somehow they never made the time to help their parents. For days, the parents did not see anyone. Once in a while, their neighbour brought them cooked food. When the children returned and the parents broached the subject of being hungry and alone, their son slapped his mother. That was the first time.

Things worsened for the parents. When the parents met with me, the mother had many marks from the violence. The father had no marks, but he was obviously a broken man. I have known this man for many years. He had been a man in the community who was full of energy and always willing to help someone. He was a changed man. I saw a man who could hardly move. He was devastated. He was trembling, in tears and dejected. All I could hear him say was that he had not been able to protect his wife.

I suggested to them that we go see the police. They told me that they could not speak of their personal circumstances. It would be washing their dirty linen in public. Before they left my office, they kept asking me if there was an option available for them to be safe. I did not have much to suggest, as options for escaping elder abuse are limited. Most programs to support elder abuse have been cancelled. I know that they lived the rest of their lives in misery.

This bill identifies the risk, but our society is not creating a safety net for our elders. This is what is wrong with not having a comprehensive approach. After identifying the risk, we do not build a safety network.

Honourable senators, there is not one person in this chamber who says that elder abuse is acceptable. We all believe that elder abuse is unacceptable, and criminal elder abuse should be met with a more severe sentence that is proportionate to the crime. However, the ambiguity of the word “significant,” which features prominently in the bill’s only substantive clause, would limit the impact of the legislation. Moreover, the bill’s focus on the impact of the offence on the victim rather than on the nature of the offence itself contradicts the bill’s intent and places undue burden on the victim.

Finally, federal policy has to this point failed to implement the urgently needed safety networks that would allow nurses, social workers, law enforcement and others to truly prevent, detect and intervene in cases of elder abuse.

Honourable senators, I would like to review the section again. It is very short. Clause 2, which amends paragraph 718.2(a) of the Criminal Code, reads in part, “evidence that the offence had a significant impact.”

What does “significant” mean; one slap, two slaps, three slaps? When I was a naive young lawyer, one slap was significant. Now, as a jaded old lawyer, I see that one slap would not be significant. What does “significant” mean? This is what bothers me about this legislation. Why do we need to include the word “significant”?

Honourable senators, I am quite affected by this bill because I meet daily with people who face elder abuse. I find it very offensive that elderly persons have to tell what their personal circumstances are while we do not require that of anyone else. We are all nearing the age referred to as “elderly.” Will we want to share with the public what our children do to us? Will we want to share in an open court the personal circumstances that our children do not feed us, do not bathe us, but slap us? Is this what we want?

Honourable senators, I am not against this bill. I only ask that the bill read “evidence that an offence had occurred on the victim considering their age, health and financial situation.” Why do we have to include “significant”? Why do we have to include “personal circumstances”? That only puts an added burden on elderly persons.

I do not know of one elderly person suffering from elder abuse who will ever go to court and set out their personal circumstances. Even if they were brave enough to do so, what would happen to them after that? They would not be able to go back to their home. They would not be able to stay with their child. After that, what? We have no programs or transition homes for elderly people. After that will they become homeless? Is this our solution for elder abuse?

My friend Senator Dagenais, with whom I work very closely, spoke about this. He told us about an incident that we all find very offensive. He spoke about an 80-year-old woman with Alzheimer’s who was sexually assaulted in a home, and the managers did not report it to the police. This bill does not change that. My friend and colleague Senator Dagenais was upset. I am upset too, and this bill will do nothing to change that. Who will report these incidents to the police? Where are the safety nets for the elderly? I agree with my friend; this is terrible, and nothing will change for that 80-year-old woman.

Honourable senators, our government has done a good job with the Horizons program. They have raised awareness of the risk, but this bill is like saying that they can report the crime, but then they will have no home. That is what we are doing with this bill.

When it comes to addressing elder abuse, honourable senators, we should not mitigate risk or roll the dice. Rather, we have a responsibility to weave a national strategy, a series of safety networks that will ensure that no elder is left behind, ignored or forgotten. We need an elder abuse bill, but one that will truly address the problem. I want an elder abuse bill, but one that will truly protect the people who have cherished us.

Some Hon. Senators: Hear, hear!

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: No.

Some Hon. Senators: On division.

(Motion agreed to and bill read third time and passed, on division.)

 

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