The Elder Law and Criminal Justice Sections of the Canadian Bar Association, in a submission and an appearance in front of the Standing Committee on Justice and Human Rights’ study of elder abuse, say the way to address elder abuse is not to add offences in the Criminal Code but to create a Pan-Canadian Elder Abuse Strategy.
The Sections believe adding offences to the Criminal Code can be counter-productive “because it can increase the complexity of the legislation without changing society’s response to the acts in question.” They also note that many aspects of elder abuse are already offences under the Criminal Code, including financial abuse, physical and sexual abuse (which include failure to provide the necessities of life and criminal negligence causing bodily harm or death, as well as counselling suicide) and psychological abuse.
In addition, the Sections write that the physical, mental and financial vulnerability of elderly victims is addressed in the Criminal Code, which lists aggravating circumstances that a court must consider in sentencing. The list includes offences motivated by age, mental or physical disability; intimate partner abuse or abuse of a family member, offences that involve abuse of trust or position of authority relative to the victim, offences that have significant impacts on the victims because of their age or other personal circumstances, including health and financial situation.
A Pan-Canadian Elder Abuse Strategy
The Sections commend the support for elders included in the 2021 federal budget, which comes on the heels of the CBA’s call for improvement in long-term care.
There is a lot of work to do. “Elder abuse and neglect are often cited as being where domestic violence was 20 years ago,” the Sections write, when prosecutors and judges “did not always have sufficient education, tools or clear direction to address the power and control dynamics within the victim-abuser dyad. As a greater understanding of domestic violence evolved, wrap around victims’ services and mandated training for prosecutors and judges were developed.”
The same needs to happen to protect older Canadians with a Pan-Canadian Elder Abuse Strategy that includes the following five elements:
- Legislated universal minimum standards for long-term care facilities.
- Recognition by law enforcement that elder abuse is a criminal offence, not a private matter between families or individuals.
- Specialized and appropriate training for police and Crown counsel, as well as a dedicated case management system that includes the use of testimonial accommodations.
- Corporate accountability for entities that fail to prevent elder abuse in their facilities.
- Increase resources for education and community support, including legal aid resources and specialized clinics.
Cognitive impairment
The Sections are concerned for how the criminal justice system might treat vulnerable older adults who suffer from cognitive impairment, whether they be victims or offenders. “The National Dementia Strategy should include a better understanding of the principles and supports required to improve the interface between persons with dementia and the criminal justice system, and foster respect for human rights and civil liberties,” they write.