Debates of the Senate (Hansard)
1st Session, 41st Parliament,
Volume 148, Issue 122
Tuesday, November 27, 2012
The Honourable Noël A. Kinsella, Speaker
Criminal Code
Bill to Amend—Second Reading
Leave having been given to revert to Government Business, Bills, Second Reading, Order No. 2:
On the Order:
Resuming debate on the motion of the Honourable Senator Dagenais, seconded by the Honourable Senator MacDonald, for the second reading of Bill C-36, An Act to amend the Criminal Code (elder abuse).
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak on Bill C-36, An Act to amend the Criminal Code (elder abuse). The government has titled this legislation protecting Canada’s seniors act. Bill C-36 received unanimous consent in the other place.
As we all share the same objective, the safety and well-being of our mothers and fathers, aunts and uncles, grandparents and great grandparents, neighbours and mentors, we all accept that if we work together, we can ensure that human rights are equally and universally respected.
As my honourable colleague, Senator Dagenais, noted in his speech last week, this bill consists of a single substantive clause that would add a seventh aggravating factor to be considered during sentencing, that is, the age and personal circumstances of the victim. This seems a good and reasonable amendment to the Criminal Code, and I support the motion to send the bill to committee for further study.
If only protecting Canada’s seniors were that simple, honourable senators. Elder abuse is a complex and serious problem, and it demands a correspondingly comprehensive and purposeful public policy response.
Honourable senators, I want to acknowledge the dedication of one of our colleagues to this issue. As honourable senators know, Senator LeBreton served as Canada’s Minister of State for Seniors from 2007 to 2010. During her mandate, the Government of Canada created the National Seniors Council. In 2008, the government launched the Federal Elder Abuse Initiative, a $13-million, multi-departmental, three-year initiative to help seniors and others recognize the signs and symptoms of elder abuse and to provide information on available supports. These are all valuable efforts to address a problem that continues to worsen in Canada. I want to thank Senator LeBreton for her work as the minister of state and for her continued advocacy on behalf of Canadian seniors.
Elder abuse takes place mostly in a family context: 70 per cent of violent elder abuse is committed by a family member or a friend of the victim. When we talk about elder abuse, we are often talking about a form of family violence. Family violence includes forms of violence that take place within the family, from wife assault to childhood sexual abuse to the abuse and neglect of elderly people. The person who abuses may be an intimate partner, an adult child, a family member, a caregiver or another trusted person.
Regardless of the form of abuse or the relationship between the abuser and the victim, there is one central shared characteristic. I know that all honourable senators agree that family violence is an abuse of power. More specifically, elder abuse is an abuse of power.
It is important that we recognize in our discussions on elder abuse that elder abuse is not merely a function of age. Abuse of elderly persons can be a misleading term. Bill C-36 recognizes this reality. It considers “other personal circumstances, including their health and financial situation.”
Elderly people are abused because they are ill, isolated, frail, dependent on others for care or dependent on others because they are poor. So far, the government policy has been to identify the risk and raise awareness of elder abuse. Honourable senators, more needs to be done.
An effective policy response must provide a safety net for vulnerable elderly people. It must give tools to people. It is not enough to talk about the problem. It is not enough to raise awareness of the issue. It is not enough to punish perpetrators more severely. There needs to be a safety net that will stop elder abuse from ever happening in the first place.
Creating a safety net does not mean tilting at windmills; it means recognizing that sexism, racism, ageism, discrimination based on disability, exclusion, poverty and neglect are incubators of abuse. They are indeed complex issues, but there is an opportunity for our government to play a very important role.
In Canada, there needs to be a place for everyone. Everyone must be included. No one gets left behind.
Last week, Senator Dagenais highlighted the federal funding recently provided for elder abuse awareness campaigns. The Minister of State for Seniors, Alice Wong, also held round table meetings on the issue of elder abuse in British Columbia, Alberta and Ontario from November 2011 to March 2012. Awareness campaigns and public consultations are important tools. Reasoned amendments to the Criminal Code will most certainly be adopted once they have been carefully studied. But these policies and practices alone do not constitute the comprehensive and sound public policy that Canadian seniors so rightly deserve and so desperately need.
To frame the context of the necessity of that public policy response, I want to share three points. First, rates of elder abuse among women, Aboriginals and immigrants are disproportionately high. Second, not all forms of elder abuse are criminal. Amending the Criminal Code does not necessarily protect Canada’s seniors, as the bill’s short title claims.
Third, given these two first points, the federal government must develop and implement an elder abuse prevention, detection and intervention strategy. This strategy should also include services at the local and provincial levels. One of the most significant policy obstacles is the coordination and accessibility of services. Our government should demonstrate leadership and embrace responsibility for ensuring universal and equal rights. It is not enough to contribute. The federal government must lead.
Honourable senators, in speaking to my first point on the disproportionately high rates of elder abuse among women, Aboriginals and immigrants, I want to underline something that Senator Dagenais said last week. He reported that because the population is aging, we will see an increase in elder abuse, and this is true. However, the rate of elder abuse is also increasing, and the problem is acute for elder women, Aboriginals and immigrants.
Over 20 years ago, the Social Credit government in British Columbia appointed me to chair the B.C. Task Force on Family Violence, which published its report in February 1992 titled Is Anyone Listening?
In 1992, the incidence of elder abuse in Canada was about 40 of every 1,000 elderly persons — 4 per cent. In 2007, the National Seniors Council reported an estimated elder abuse incidence rate of 4 per cent to 10 per cent. As the council wrote, “It is difficult to estimate the prevalence and incidence of elder abuse in Canada.”
We know that the rate of police-reported family violence against seniors rose by 14 per cent between 2004 and 2009. It is a small sample that, coupled with the National Seniors Council estimate, leads us to the observation that the problem is getting worse.
Why do rates of incidence continue to increase despite the millions of dollars in government funds dedicated to awareness campaigns? Despite these efforts, the underlying social contexts that foster elder abuse persist. As the B.C. task force reported 20 years ago, “People, and most dramatically women, are seen to lose power, status and worth as they get older.” The task force observed that this perception may lead to treating an elderly person as if she were a child or an object of care instead of an adult.
In August 1991, Prime Minister Mulroney’s Progressive Conservative government created the Canadian Panel on Violence Against Women, of which I was a member. The panel presented three factors in its 1993 report: the widespread acceptance of the subordination of women to men and the subordination of some women to other women; women’s dependence on men and male systems; and physical, psychological and social isolation from the mainstream.
These realities are fundamentally unchanged. The Senior Women Against Abuse Collective quotes the testimony of a 71-year-old woman:
When he got the gun out, I picked up the phone and called the police. I had never done that before. When they came to our room, I ran. The policemen tried to convince me to come in the house and talk, but I refused. I got in that car and said, “I am never returning home. He will kill me.”
Honourable senators, sadly, family violence is pervasive in our society, and elder abuse does not occur in a vacuum. In this case, it is family violence, it is violence against women, it is gun violence and it is elder abuse. To end one, we must end them all.
As the Canadian Network for the Prevention of Elder Abuse points out, women:
. . . tend to have fewer financial resources to begin with, a greater proportion of older women are already living below the poverty line, and older women live longer than older men so that any loss of income or assets through financial abuse will hurt them more and for longer.
Moreover, continues the network:
. . . a woman, on average, tends to be smaller than a man, and may have less ability to defend herself, and older women are more likely than older men to have disabling conditions.
Statistics Canada reported in 2011 that women are more often victims of family violence committed by grown children, spouses or ex-spouses and other family members.
Honourable senators, it is clear that observations on patriarchy and its role in promoting elder abuse are as relevant today as they were in 1992. We must not delude ourselves into believing otherwise.
The 1992 B.C. task force report admitted a knowledge gap concerning elder abuse among Aboriginal people, but it did note that:
. . . Aboriginal elders who experience abuse may also face barriers in having access to services if they are in a geographically isolated area, or if the services are not provided in a language that they understand.
The task force’s concerns were well-founded. Today a greater proportion of Aboriginal seniors continue to live on reserve where there is a higher incidence of violence. Moreover, Aboriginal women are about three times more likely than non-Aboriginal women to be victims of violence.
Concerning abuse of elderly immigrants, the task force cited intense pressure that multi-generational immigrant families face, conflict between old and new values, a lack of understanding of laws, customs or expectations, and a lack of language skills that may prevent elderly immigrants from accessing the services they need if they are being abused.
Even though immigrant women are disproportionately represented among Canadian women aged 65 and over, nothing has changed since the task force released its report in 1992.
In developing a policy on elder abuse, governments must recognize that women, Aboriginals and immigrant women are affected to a disproportionate degree.
Any policy must also take into account the various forms of elder abuse.
This brings me to my second point: Not all forms of elder abuse are criminal. The 1992 B.C. Task Force on Family Violence defined elder abuse as “any action or inaction which jeopardizes the health or well-being of an elderly person.” That definition includes many forms of elder abuse including physical abuse — any act or acts of violence or rough treatment causing injury or physical discomfort; psychological or emotional abuse — any act, including confinement, isolation, verbal assault, humiliation, intimidation, infantilization, or any other treatment which may diminish the sense of identity, dignity, and self-worth; financial abuse or exploitation — the misuse of an elderly person’s funds and assets, obtaining property or funds without his or her knowledge and full consent; sexual abuse — any sexual behaviour directed towards an elderly person without his or her full knowledge and consent, including sexual assault, sexual harassment or the use of pornography; medication abuse — misuse of an elderly person’s medications and prescriptions, including withholding medication and over sedating; violation of civil or human rights — the denial of an elderly person’s fundamental human rights according to legislation, the Charter of Rights and Freedoms of the UN Declaration of Human Rights, for example, including withholding of information, denial of privacy, denial of visitors, restriction of liberty or mail censorship; and finally, active neglect — intentional withholding of basic necessities or care.
Honourable senators, some of these acts are criminal, but most are not. Protecting Canada’s seniors must go beyond amending the Criminal Code. Earlier, I referenced the under-reporting of elder abuse. This bill to amend the Criminal Code cannot address even criminal forms of elder abuse that are not reported.
I want to evoke the concept of known knowns, known unknowns and unknown unknowns. In other words, honourable senators, there are things we know that we know, things that we know that we do not know, and things we do not know that we do not know. The proposed protecting Canada’s seniors act only addresses a small portion of the known knowns.
We know that rates of abuse are higher in some segments of the population. I mentioned women, Aboriginals and immigrant women. We know that we do not know the exact rate of elder abuse, partly because the problem is not well defined and partly because cases are rarely reported.
What do we not know that we do not know? The nature of that question encourages speculation, but I will not speculate, honourable senators. I will reason and infer based on my experience as chair of the British Columbia Task Force on Family Violence and a member of the Canadian Panel on Violence Against Women. Our understanding and conception of elder abuse is severely limited because our response thus far has been severely limited. There have been studies and public awareness campaigns, but to date there has been no coordinated response and no adequate safety net to protect seniors.
This brings me to my third point. The federal government must develop and implement an elder abuse prevention, detection and intervention strategy. This is not a new plea and these are not new recommendations. I will quote once more from the British Columbia Task Force on Family Violence:
On prevention:
Preventive services to people who are elderly or disabled are in short supply.
Waiting lists exist for respite care, permanent placement and short stay assessment programs and caseloads of Continuing Care staff are large.
There is also a lack of outreach services to support elderly people in maintaining control over their own affairs.
Abuse of elderly people is fostered by lack of services.
Low welfare rates; few housing options for elderly people to live independently or semi-independently; limited accessible transportation; and limited health and social services mean that elderly people lose their independence, develop low self-esteem, and become isolated.
Poor elderly people, most of whom are women, are particularly affected.
On detection:
Detection of abuse of elderly persons is impeded by our belief in the sanctity and privacy of the family and our persistent misconception that the family cares for its loved ones and respects its elders.
Some victims are unable to communicate because they cannot speak English or because they have a physical or mental disability which impairs communication.
On intervention:
Effective assessment tools are necessary to assess whether abuse is occurring, what are the most helpful and respectful ways to intervene and whether the elderly person is capable of acting on information offered and making decisions.
Family violence and elder abuse are often described as war. We can only provide triage services and measures such as this bill while the casualties mount up. As in war, there are similarly complex questions that we ask: How to mourn the dead, how to save the wounded and, most important, how to protect the young, the old, the vulnerable.
I believe that Canada is a great country, but we must live up to that greatness. We desperately need a comprehensive safety network so that people are not killed, people are not maimed, and violence does not leave a lasting impact on our children.
Abuse of elderly persons requires urgent attention from the range of service providers, from law enforcement personnel to institutional family caregivers and public educators.
Honourable senators, like you, I have read sections 91 and 92 of the Constitution Act, 1867. I understand the principle of jurisdictional authority, but I also grow impatient when this principle is used to shirk responsibility, to legitimate dereliction of duty. These are not qualities of a leader. The federal government has a moral and legal responsibility to protect the human rights of all Canadians, including seniors. As I mentioned earlier, the coordination and accessibility of services remains a huge problem. The Federal Elder Abuse Initiative, which ended in 2011, included national ad campaigns, public opinion research and updates to RCMP policy, but it did not build working relationships between provinces and service providers, nor incorporate many of the measures essential to prevention, detection and intervention.
Honourable senators, for over 40 years I have listened to stories of elderly people who have experienced abuse. There are hundreds and hundreds of stories that I would like to share with you. In many cases, parents provided and cared for their children, but sadly, when the time came for the elderly parents to receive care, their spouse or their children abused them. Before I finish today, I want to share one story with you.
I was a very young lawyer when I first met Bill and Marjory. Bill and Marjory always took pride in the resources they provided to their two children, Lisa and Tom. Marjory stayed home to be a full-time caregiver. Bill provided ample resources to his children. Bill was a successful businessman. Lisa and Tom did not want for anything. Lisa and Tom were provided for and cared for by their parents while they were in kindergarten. Lisa and Tom were provided for and cared for while they were in elementary and secondary school. Lisa and Tom were provided for and cared for while they attended university. Bill and Marjory paid for their children’s university education, their marriages and the down payments on their first homes. They even paid for Tom’s divorce.
All was well for this family until Marjory’s health started deteriorating. Marjory had dementia, but Bill was determined to keep her at home. He asked for his children’s help to look after Marjory so he could get some respite. Often they made excuses and did not help Bill. One day, when Bill arrived, he was shocked to see that Tom had physically restrained Marjory. Tom’s explanation was that Marjory was going to hurt herself. Bill believed his son. Then Bill observed that every time Tom came to the house to help, almost before Bill left the house, under great protest from Marjory, Tom would restrain her. Then one day, when Bill’s daughter was helping her father by caring for her mother, Bill returned home early, and to his disbelief he saw Lisa slap her mother.
When I spoke to Bill, he was absolutely devastated. He kept repeating to me how much Bill and Marjory had provided for Tom and Lisa. Bill and Marjory had spent their lives caring for their children. It is what gave them their greatest happiness. After all, a parent’s greatest desire is to see their children live a happier, healthier, more prosperous life than they did. However, when Marjory and Bill needed their children’s help, Tom and Lisa viewed their parents as a burden. Not only did they not care for their parents, not only did they fail to provide for them, they abused them. Bill was terribly ashamed. He did not know where to seek help and services.
Honourable senators, there are many Canadians like Marjory and Bill. We must do more to help them. We must provide services to stop the abuse.
Honourable senators, as I committed at the outset of my speech today, I will support further study of Bill C-36. The introduction of this legislation demands fuller debate and subsequent action on the multitude of public policy areas that relate to elder abuse. As I have reported to you today, women, Aboriginals and immigrants are particularly affected, and elder abuse is not limited to criminal conduct. Protecting Canada’s seniors requires more than amending the Criminal Code.
Finally, I laid out the need for a comprehensive, pan-Canadian strategy that engages governments at all levels. Honourable senators, I urge you all to join the call for a fuller national strategy. The 1992 report of the BC Task Force on Family Violence was deliberately titled Is Anyone Listening? More than 20 years later, that question is still relevant.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question.
The Hon. the Speaker: It was moved by the Honourable Senator Dagenais, seconded by the Honourable Senator MacDonald, that Bill C-36, An Act to amend the Criminal Code (elder abuse) be read the second time.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and bill read second time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
(On motion of Senator Carignan, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)