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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 28 - Evidence for December 5, 2012

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OTTAWA, Wednesday, December 5, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations; and Bill C-36, An Act to amend the Criminal Code (elder abuse), met this day at 3:30 p.m. to give consideration to the bills.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: I will call the meeting to order. We may have to have a brief recess. The minister was scheduled to be here at 3:30, but apparently they are having a vote in the House of Commons. We have had an indication that he will be arriving around four p.m.

Perhaps, as another option to having a recess while we wait for him, if there are any questions that honourable senators have related to either Bill S-12 or Bill C-36 while the officials are before us, they could give me an indication if they have a question or two. If there are questions, I will introduce the officials and we will carry on.

Senator Baker has a question, and Senator Jaffer. We will continue, then.

The witnesses from the Department of Justice are Philippe Hallée, Deputy Chief Legislative Counsel; Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section; and Matthias Villetorte, Counsel, Criminal Law Policy Section.

We will lead off with Senator Baker.

Senator Baker: I would like to ask the witnesses what prompted the change to section 718.2(a) of the Criminal Code by adding —

Senator Fraser: No, that is the wrong bill.

Senator Baker: You want to go with the other bill first?

Senator Fraser: Yes.

The Chair: Sure.

Senator Baker: I understand you are here to speak on both of the bills; is that correct?

Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Correct.

Senator Baker: Subparagraph (iii), the words:

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, . . .

I notice that the interpretation of the word ``age'' is intended to be ``elderly.'' Is that what the intention is?

Ms. Morency: To respond to the first part of your question, what prompted Bill C-36 is that the government made a commitment to introduce the bill in support of treating elder abuse more seriously through sentencing. That is what this bill seeks to accomplish.

In terms of the distinction, I am sure the minister will speak to this when he is here later. As you have noted, the existing provision in section 718.2(a) already has an aggravating factor:

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age. . .

It is already included in there. However, Bill C-36 takes it a bit further and has a more general provision to say that where the impact of a crime committed against an individual is significant due to a combination of factors that includes age and other personal circumstances, such as health or financial situation. It is a different approach. It is an additional factor that is not currently caught by section 718.2, but reflects a practice that many sentencing courts follow today.

Senator Baker: Yes, that was my main question. I thought that this was already the case in practice.

I did a quick check, and to give you an example, the Provincial Court of British Columbia in R v. Johal, 2012 CarswellBC 1403, stated in a quote from the headnote:

Aggravating factors included victim elderly, isolated and vulnerable. . . . Mitigating factors included . . . pleaded guilty . . . .

That judgment from March of this year cites various cases in which the victimization of elderly persons is an aggravating factor. This is to put into the Criminal Code what is already the practice in our courts; is that correct?

Ms. Morency: Yes, It will codify an existing practice and, by doing so, it will provide greater certainty so that in all cases this must be treated as an aggravating factor for sentencing purposes.

Senator Baker, you may be aware or recall that five provisions were recently amended and a similar amendment was made to section 380.1. There is a consistent approach in terms of the language that you see before the committee on Bill C-36.

Senator Baker: There is nothing that is questionable. I am searching for something that is questionable relating to this amendment but I cannot find anything there. It is just codifying what is already the practice in our courts.

Ms. Morency: I think the minister will appreciate your support, senator.

Senator Baker: Thank you.

Senator Jaffer: Thank you very much for making yourself available.

I am very troubled by this. I will start with the word ``significant'' impact. I am not saying anything new to you. You know there is no definition of ``significant.''

When I was a young lawyer and someone told me that they were slapped by their partner, I thought that was horrible. However, as I get older I am asking, ``And what else happened? And what else happened?''

I feel that judges will say, ``Well, one slap is not enough.'' It has to be ``significant'' because the law says ``significant.'' I am troubled by this word. Why is it that the offence occurring is not good enough, as it is for other places? Why would a person who is older need to have a significant impact?

Ms. Morency: I will start with, first, the aggravating circumstances for sentencing purposes. The intention behind requiring a court to give greater weight to a certain set of circumstances for sentencing purposes means that there is something exceptional in that situation. That means that the starting point should be a bit different from what it might be in the average case.

When you are dealing with elderly people, I do not think there is consensus that everyone who is age 65 or 75 will all necessarily be in the same situation, that the impact of the crime would be the same for everyone in that age group or in necessarily the same circumstances. This is in contrast to what you find, for example, with young persons under the age of 18. We know from medical and social sciences that children age 5 will be significantly different than children age 12, and there are various milestones that apply to all children in that age group. One cannot come to a similar conclusion about elderly people and, in fact, not everyone wants to be seen as being vulnerable and be treated the same, because adults are distinct, no matter the age, no matter their personal situation.

Bill C-36 tries to recognize that when all of those factors together are put together — it could be age or a financial situation if one is living on a fixed income and not gainfully employed anymore — the impact of certain crimes will be greater on those individuals. It is that cumulative impact together that signals to the sentencing court that this should be treated as an aggravating factor for sentencing purposes, because it has had a greater impact on that individual in those circumstances with that accused.

That is the rationale behind the language chosen there.

Senator Jaffer: With the greatest of respect, I have really struggled with this and looked through Quicklaw and many other places. I have not found a definition of ``significant,'' and I am not happy with what you have said. Just impact on the victim considering their age and other personal circumstances may have been enough.

I will go on to another question that I have, because I do not know if I will get further with you on this, but the word ``significant'' is really bothering me. I have done a lot of this work and, as a defence lawyer, I would have a field day in telling the judge this was not significant impact. I would have fun with it, and I am really worried that if you are serious about this bill, this word should not be there.

The other issue that bothers me more is ``personal circumstances.'' Obviously personal circumstances would come at the second stage of the hearing, at the sentencing hearing; it would not be during the trial itself because consequences are of no importance during the trial, so it would be the sentencing hearing.

First, you would have the elderly person testify at the hearing, then that person would testify at the sentencing hearing. I find that really difficult. It would be hard enough to bring that person for one hearing, let alone bringing them for two. Apart from that, which elderly person would want their personal circumstances made public? Where I live in Vancouver — and I work with lots of elderly people — the elderly would not want their family honour to be splashed in the courts and then in the newspapers. Who would want their personal circumstances splashed in the newspaper? That would be a loss of honour for those people. Why would you want personal circumstances to have an impact? If it is an abuse, it is an abuse. Why does a person's personal circumstance have to be there?

Ms. Morency: If I could start with your first comment back to the word ``significant'' again. As I mentioned, Bill C- 36 is proposing an amendment that is consistent with the language that is already in the Criminal Code now.

Senator Jaffer: It is not defined. That does not make it right. There is no definition of ``significant'' anywhere in the code.

Ms. Morency: However, it does provide a consistent use of language, and we can draw from the case law that is already in existence in terms of how the courts do look at sentencing in cases where the impact of the crime has been significant on that individual. If we think back to some of the cases that have proceeded and been in the media — the big fraud cases and so on — the sentencing courts are very much seized with the reality of the individual victims before them.

How does the information about the impact on the victim get before the court? Yes, it can be through testimony through the trial itself. If the victim does testify as a witness during the trial, whatever the court finds as fact during the trial can be applied to the sentencing process again. It does not necessarily mean that the victim has to testify a second time at the sentencing portion.

We also have victim impact statement provisions within the Criminal Code. This is an important tool by which victims are able to describe in their own words the impact that a particular crime has had on them, and this is provided to the court. The victim can have the right to ask to read the victim impact statement out loud in the court. There are a number of ways within the existing trial process and at the sentencing stage where the impact of the crime on the victim can be fully brought before the court so that the court can make a decision based on all of the facts before it.

There is no question that in any case no one wants to be a victim. It is challenging for victims to come before a court and to have to speak to their personal situation, whether it is a situation of violence or an older person who might have been defrauded. There are a lot of issues there and, when one looks at the evidence or the research that has been done in this area, that partly contributes to why we suspect there is under-reporting of elder abuse.

There is no question that there are some challenges for individuals in terms of wanting to come forward to report. This is why it is important to have victim services in place in the provinces to help support the victims through those processes. It is very challenging.

The Chair: We have to move on. We will come back to you, Senator Jaffer. Senator Fraser?

Senator Fraser: This is about the same thing, but from a different angle. I should say I have trouble with the word ``significant'' every time it appears before us.

What really struck me about this bill is that 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 common-law partner, if it involved a victim under the age of 18, or if it was a terrorism offence. There is no mention in there of the nature or degree of the impact. Why are you tying this one to impact and only this one?

Ms. Morency: Again, as a starting point, I think everyone would recognize, no matter the crime, no matter the victim, there is an impact on everyone. Again, if you come back to the rationale for requiring a court to give further weight to a particular set of circumstances because it is more egregious in the situation, an aggravating circumstance, there must be something to distinguish it from the impact that is there for anyone in that situation.

In terms of the rationale with the bill, as I have mentioned, you can look at a situation where you have a 55-year-old who one might think is in stronger physical health, perhaps no mental decline, but it could still have a huge impact on them. You could compare that to an 85-year-old who might weather or survive crime in a different way.

Bill C-36 is trying to avoid painting all persons of a certain age or in a certain situation as being in the same situation and recognize that it is a combination of factors. When you look at it, it is when it all plays out together that it has a particular impact, to differentiate it.

Senator Fraser: I am sorry to be thick about this, but this is about sentencing principles. The judge will have discretion in looking at the facts of a given case to settle upon a given sentence on the basis of the facts of that case. The sentence will vary, depending on the gravity of the offence, the actual offence as distinct from just the Criminal Code umbrella offence. Surely that would be enough? I do not understand why we have to tie this to impact as distinct from tying it to evidence concerning the victim's age and other personal circumstances, including their — here we go again grammatically — health and financial situation.

Why would that not be sufficient?

Ms. Morency: Again, the language exists right now in section 380.1 in the context of fraud, so that is the approach now.

In essence, Bill C-36, and even the earlier amendment from the Standing Up for Victims of White-Collar Crime Act, reflects an approach that the sentencing courts follow now. When they look at the particular circumstances that a victim finds themselves in at the time of the crime in question, they look at the impact on the victim. That is what is speaking to differentiate this from someone else who may also be 65, when the victim is 65. It has a different impact on that person.

It would be difficult if you went with chronological age and just said anyone by reason of age. It would be I think less than truthful to say that all 65-year-olds are in the same situation, that they are all equally strong or have the same frailties that some other 65-year-olds may have.

Chronologically by itself, certainly it is an issue of interest, but there is no uniform definition of what the age is, for example, in federal legislation. Is there a uniform age that we consider anyone over this age to be a senior or an elderly person? There is not. It does vary. Chronologically by itself, it is challenging.

If you look at financial impact, a person on a fixed income of $15,000 per year who is defrauded of $500 or $1,000, it will have a much bigger impact on that individual than a person who is financially well off and for the rest of their lives loses $5,000 or the same amount; it will not have the same impact.

If you are trying to ensure that the court can look at the impact on the victim before the court in those circumstances, this is the way to do it and ensure unique treatment in those circumstances.

Senator Fraser: You have done your best to satisfy me. I thank you.

[Translation]

Senator Joyal: Ms. Morency and Mr. Villetorte, could you look at paragraph 380.1(1)(c.1) of the Criminal Code? My concern with regard to the text before us — which amends paragraph 718.2(a) — is that the two provisions are worded differently. They have the same objective, which is to protect elderly victims of crime.

Paragraph 380.1(1)(c.1) stipulates that the offence had a significant impact on the victims given their personal circumstances, including their age, — the comma is very important for me here — health and financial situation.

Their age, health and financial situation can be taken into consideration. The provision before us, as printed, states the following: ``[. . .] sur la victime en raison de son âge et de tout autre élément de sa situation personnelle, notamment sa santé et sa situation financière''. In the English version, it is even clearer:

[English]

. . . considering their age and other personal circumstances, including their health and financial situation.

[Translation]

In other words, in fraud-related offences, age can be taken into consideration. Personal and financial situations can be taken into account as well.

In the case of abuse:

[English]

Abuse, in the most general terms, because the title of the act is protecting Canada's seniors. In other words, it encompasses all kinds of offences. We would have to consider the age and other personal circumstances.

In my opinion, the way section 381 is enacted is much wider protection than the one we have here. In fact, there would be a comma after their age in the English version.

[Translation]

The same should be done in the French version to ensure that either only the person's age is considered or both their age and personal situation. That is actually the case in section 380.1 — a provision we have already adopted, as you know, with regard to the financial abuse my colleagues referred to earlier in their question. I think it would be easier for courts of law to have identical wording in those two provisions, as both have the same objective to protect seniors.

I apologize if I come off as overly technical to my colleagues, but I think that a judge or a defence attorney who will have to make submissions on the application of that provision will take into consideration the wording of the legislation.

Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice Canada: The aggravating circumstance in section 380.1 is limited to fraud. Of course, personal financial situation is a shared characteristic. Age as a factor is being added. In section 380.1, the aggravating circumstance you referred to is not limited only to the general protection of the elderly. It covers much more than seniors, since the amendment proposed in Bill C-36 is specifically related to older people and, as you mentioned, to offences other than fraud, since fraud is already a specific aggravating circumstance.

Regarding the difference in wording, section 380.1 does stipulate that age should be taken into account, but in combination with the financial situation, as fraud is at issue. Since the amendment in Bill C-36 applies across the board, an individual's vulnerability must not only be considered from an age perspective. As my colleague mentioned, not all 65 year olds will be as vulnerable. This must be considered from a perspective of age and other personal circumstances, and that truly explains the difference. One provision is much more targeted. The provision from Bill C- 36 focuses on seniors' vulnerability, while section 380 includes — but is not limited to — that vulnerability.

Senator Joyal: So, the bill's objective is to protect seniors, but being a senior is not enough to be protected. Is that what you are basically saying about this provision? Individuals have to be seniors and meet other personal conditions related to their health or financial situation to be able to benefit from this protection provided by the bill, or be covered by the bill?

Mr. Villetorte: Yes, in a way. Age is not a basis for establishing someone's vulnerability. Age contributes to vulnerability, but a combination of age and other personal conditions — such as health — is taken into consideration. A 65-year-old individual with health problems and a more difficult financial situation may be more vulnerable than someone who is 65 years old but does not have any other issues or someone who only has health problems or is in a difficult financial situation.

Senator Joyal: While reading the bill, I was hoping it would take into consideration as many circumstances as possible. An individual may be especially vulnerable owing to their age. In this case, we do realize seniors are at issue, but that is not clearly stated. People can also be victims at 50 years of age if they are perhaps in a difficult financial situation or have health problems, but not only because they are 50 years old. There are all kinds of reasons someone may not have the same living conditions as someone else in the same circumstances. I think the age factor should be set apart — as was done in section 380 — so that better protection of individuals can be guaranteed based on that factor.

Mr. Villetorte: I think some witnesses before this committee will say that age should not be tantamount to someone's vulnerability. So, yes, age should be considered, but in combination with other personal circumstances.

That is implied in section 380.1 because the context is that of fraud. With fraud, the personal circumstance that applies to all those victims — the predominance of the aggravating circumstance — will be the financial situation. So the financial situation is taken into consideration, since it applies to everyone in the context of fraud — including a combination of age. Since this is an aggravating factor that applies much more generally, and not only in the case of fraud — as stated under section 380.1 — that combination must be reflected. That is why the wording in section 380.1 is different from what is proposed in Bill C-36.

[English]

Senator McIntyre: Bill C-36 is rather short. It consists of three clauses. Clause 1 is the short title and there is the provision indicating that the bill will come into force 30 days after Royal Assent, which is clause 3. The only substantive provision is clause 2, which is, as you have indicated, basically adding a seventh aggravating factor to section 718. It already has six.

In looking at clause 2, it is obvious that the term ``elder abuse'' does not appear in the text of the bill and there is no mention of specified age.

I note that the term ``elder abuse'' is not defined in the Criminal Code. Do you feel that it should be?

Mr. Villetorte: The offences that we have in the Criminal Code are of general application. ``Elder abuse'' can take different forms: Physical abuse, including sexual abuse; financial exploitation; neglect; et cetera. All those situations are already covered by the offences in the Criminal Code.

Here an aggravating factor is proposed, so the impact of the crime on the victim — being particularly vulnerable because of age and other personal circumstances — will go to the heart of those cases where the victim is elderly or vulnerable because of age and personal circumstances. It will complement those aggravating factors already found in section 718.2 that do apply in elder abuse cases already, such as the offender being in a position of trust in committing the offence, which is an aggravating factor. That is found in some elder abuse cases.

Therefore, in a way of general application, the different situations in which elder abuse can happen are already covered.

Senator McIntyre: As I understand it, the aggravating factor could be applied in cases other than elder abuse, can it not?

Mr. Villetorte: The criteria that must be satisfied are the age and other personal circumstances. Had it been only personal circumstances — we find the same language in section 380.1 — I would say for sure it can happen in any case of a 30-year-old. However, here we have to satisfy the combination of age and personal circumstances.

I am hard pressed to see or think of an example where a 30-year-old who is vulnerable because of personal circumstances would be more so because of a combination of their age and personal circumstances.

Senator McIntyre: The reason I mention that is because the term ``elder abuse'' does not appear in the text of the bill, nor is there a mention of a specified age. It is wide open.

Ms. Morency: As you mentioned, it is in the short title of the bill.

As my colleague mentioned, the Criminal Code does not generally differentiate between victims as a matter of general approach. Therefore, assault is an offence that applies without regard to the victim, age, gender, and whether the person is able-bodied or handicapped.

You do tend to find a distinction between, for example, sexual assault and sexual assault against child victims, but we do not differentiate between elder abuse, spousal abuse, child abuse, or otherwise.

Senator Baker: Was it in 2011 that we passed the following words in section 380.1(1)?

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

Was that 2011?

Ms. Morency: Yes, it received Royal Assent on March 23, 2011.

Senator Baker: The same words in a different order — ``. . . significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation'' — is now being brought into new section 718.2.

If I take a fraud case, for example, R. v. Kralik, they use section 718.2. I am quoting from paragraph 24:

. . .the factors listed in s. 718.2 —

— which we are now amending —

— are only examples of aggravating factors. In my view, abuse of a frail, isolated elderly person, particularly an elderly person who was ``not as sharp as she once was,'' can be considered an aggravating factor. I will not go so far as to say that Mr. Kralik was in a position of trust. It is enough, in my view, that he deliberately took advantage of [the victim's] vulnerability, isolation and reduced mental capacity.

Is that what we are addressing here in this amendment, the vulnerability, isolation and reduced mental capacity of that particular victim? Is that what this amendment is proposing to address?

Ms. Morency: I understand that the committee will be hearing from some witnesses who appeared in the other place on the bill and spoke to some of the factors that the committee may be interested to pursue about not everyone wanting to be considered to be vulnerable just by reason of their age. However, in terms of Bill C-36's objective, which is to ensure that the combination of older persons and other situations where they do have that greater impact — that they are in effect more vulnerable to being victimized in the way they are because of that combination — yes, those are the factors being addressed.

Senator Baker: The same minister introduced those same amendments in 2011 to that other section of the Criminal Code that has approximately the same wording, but not exactly the same wording.

Ms. Morency: That is because there was one in the fraud context. It is meant to look at the circumstances of any victim before the court — they could be young or old. In this context, Bill C-36 is dealing with an aggravating factor for all offences where it has an impact.

Senator Baker: Yes, but the same words are being used.

Ms. Morency: Similar words, yes.

Senator Baker: Similar words, with a difference. Which word is being used now in this section that was not used in the other one?

Ms. Morency: As your colleague pointed out, it is in terms of the wording, but for reasons that my colleague has mentioned. However, I am sure that you would want to hear from the minister right now.

The Chair: We will let the minister get seated and give him an opportunity to respond to questions.

For the sake of anyone viewing these proceedings, we have some guests here whom we are meeting with today to continue our consideration of Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. We are also beginning our consideration of Bill C-36, An Act to amend the Criminal Code (elder abuse).

Minister, your officials have been dealing with questions that have been solely on Bill C-36, but we look forward to comments from you dealing with both bills and responding to questions that members have. The floor is yours.

Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, and my apologies for being late. We were called by a vote in the House of Commons and I came here immediately afterward.

I will begin by making comments about Bill C-36, followed by Bill S-12.

As you know, the government committed in its election platform to amend the Criminal Code to add vulnerability due to age as an aggravating factor when sentencing those who commit crimes against elderly Canadians. Bill C-36 fulfills this commitment by identifying, as an aggravating factor for sentencing purposes, the fact that an offence has had a significant impact on a victim because of their age and any other aspect of their personal situation, such as their health.

Although there is no universally accepted definition of elder abuse, stakeholders in this area agree that elder abuse can take different forms. It may involve physical abuse, including sexual abuse, psychological abuse, financial exploitation and neglect. In the context of the Criminal Code, these forms of abuse are covered by offences contained in the Criminal Code.

As you know, the code currently requires courts to increase a sentence that reflects relevant aggravating factors. Some of the aggravating factors provided in the code apply in elder abuse cases. These aggravating factors include the fact that the offence was motivated by bias, prejudice or hate, based on age, or mental or physical disability, or the fact that the offender abused a position of trust or authority in relation to the victim.

Moreover, in the context of fraud, the Criminal Code provides as an aggravating circumstance the fact that the offence has had a significant impact on the victims ``given their personal circumstances including their age, health and financial situation.''

Therefore, the addition of Bill C-36 proposed aggravating factors, together with the existing factors already in the Criminal Code, would ensure that the various circumstances in which offences are committed against elderly persons are always treated seriously at sentencing. An important aspect of the bill is that the vulnerability of an elderly person is not defined by the age of the victim alone, but rather by a combination of characteristics of the victim such as the victim's age, health or physical disability.

Another aspect of Bill C-36 is that it targets situations where the offence has had a significant impact on the victim. Clearly, every victim in every circumstance is impacted as a result of the commission of an offence. However, there are differences in how severely these offences impact victims. Applying this aggravating factor in all cases of elder abuse without considering the severity of the impact on the victim would trivialize the efforts contained in the bill.

Some have suggested that only a small portion of elder abuse cases end up before the courts and that the government should instead support measures such as investments in programs and initiatives to combat elder abuse. The specific characteristics found in many elder abuse cases contribute to an underreporting of these cases. For instance, we know that two thirds of the cases are committed by someone who is known to the victim. Of these cases, half are committed by a family member of the victim.

The underreporting of elder abuse is definitely a problem. However, it is not a reason to oppose this particular piece of legislation. This must be seen as a complement to the federal government's efforts and those of our provincial and territorial counterparts in this matter. The fight against elder abuse requires a multi-disciplinary approach involving efforts at all levels of government.

For instance, in 2008 the federal government launched the Federal Elder Abuse Initiative to provide a focused and coordinated federal approach to combat elder abuse. Among other things, it contributed to the public's awareness with its advertising campaign that you may remember, Elder Abuse — It's Time To Face The Reality, which ran for a couple of years on television, in print and on the Internet.

The government continues its efforts to tackle elder abuse through the New Horizons for Seniors Program. This program provides funding for pan-Canadian and community-based projects. Projects it has funded have addressed elder abuse through awareness promotion, knowledge development, networking and information sharing among organizations and communities.

For those cases that do go through the criminal justice system, this bill will strengthen the Criminal Code's response in order to ensure that elder abuse cases result in appropriate sentences.

I suggest that this committee support this bill as an important component of our fight against elder abuse in this country.

With respect to Bill S-12 —

The Chair: I am sorry to interrupt, but we have had about 40 minutes of questions on Bill C-36. Given the interest, and rather than muddy the waters, should we try to deal with questions here on Bill C-36? I will arbitrarily cut the questions off so we can move to Bill S-12.

You still have to depart at five o'clock?

Mr. Nicholson: I do, unfortunately.

The Chair: Are you okay in proceeding that way?

Mr. Nicholson: Whatever you like.

Senator Jaffer: Minister, thank you for being here. This is certainly a good step, but I what am very confused about is under subparagraph 380.1(1)(c.1), referring to the aggravating factor for specified fraud offences, it states:

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health, and financial situation.

How will the impact of Bill C-36 differ from what is already in place in the court?

Mr. Nicholson: It is similar, as you pointed out correctly, senator. I think your colleague was talking about this when I arrived.

We are broadening it not just with respect to victims of white collar crime, and I believe I appeared on that bill before this committee. We are extending it to all types of elder abuse. The financial fraud that is many times inflicted upon elderly people is not the only example of elder abuse; there are other ways that individuals can abuse a senior, as you know. We have broadened that so it includes all other areas of the Criminal Code. However, the bill that you referred to was specific to the question of white-collar crime and we made it a factor there.

Senator Jaffer: I certainly appreciate the bill on elder abuse. I worked on this issue for many years.

The thing that concerns me is that there would be almost two trials. You have the trial and then, at sentencing, you have to look at the personal circumstances of the person.

Before you arrived, Ms. Morency spoke about having the impact statement. I am happy with having an impact statement, but the people I work with would be very reluctant to go into their personal circumstances. I do not understand why we need to know the personal circumstances of a person; just the fact that the offence has taken place is bad enough.

Mr. Nicholson: As you know, with all victim impact statements, these are not requirements of the law. It is where the family or the individual who has been victimized feels it is appropriate and is working with their solicitor in terms of moving this thing through the process. However, there is no compulsion on anyone who is not comfortable about talking for these. It is bringing the matter before the criminal justice system. It is important to ensure this kind of behaviour is not ignored, forgotten about or in any way belittled. The provisions are there to work with the individual, but that would be optional if the individual is not comfortable with making their statements.

Senator Baker: Before you came in, Ms. Morency made the comment in my previous questioning that I was agreeing with you on this bill.

Mr. Nicholson: That is good to know.

Senator Baker: Perhaps I should not go any further, but my main point was this. I cited several cases in which judges have said . . . for example, 2012, Carswell, B.C., 1403, the head note says ``aggravating factors included victim elderly, isolated and vulnerable,'' and the cases go on and on.

In effect, you are codifying something that judges have recognized in a lot of case law. That, in effect, is what you will be doing.

Mr. Nicholson: I think that is a good point, senator.

It is not that many of these issues are ignored, but it is the decision we make any time we enumerate the aggravating factors. We want to have certain circumstances placed before the court to ensure they are considered in all cases. This is the way we are doing it here. Indeed, this is the way we have done it in a number of examples that you have talked about in the Criminal Code.

The Chair: Any further questions from senators on Bill C-36?

Senator Joyal: Thank you and welcome, Mr. Minister.

If I heard your presentation well, it was oriented to the elderly constituency, but I think you have recognized also, if I have taken my notes properly, that other people could be, because of their age, health and financial condition, in a situation of vulnerability. We could think of a person who may be 45, but, because of their mental condition or the precariousness of his or her financial situation, could be put into the context which this bill seeks to present to a judge, a case whereby the sentence takes into consideration the particular conditions under which the offence was committed.

Am I right in my interpretation? As I said earlier on to your official, even though the bill is entitled ``elder abuse,'' when it is printed in the Criminal Code those words will disappear. We will be faced only with what we have here in (iii.1). That paragraph is not oriented specifically to elder abuse. It is essentially a person of an age who would be, because of their personal circumstances, in a situation, in fact, vulnerable. Am I right in interpreting it that way?

Mr. Nicholson: What we did not do — and this is a decision we had to make — is put a specific age in there. We did not say at 65, or 75, or 80. That was quite deliberate because, as you have pointed out, there is a whole area of elder abuse, which this bill is addressing, again, where age is a factor in combination with some other circumstances. It specifically addresses that and I think that is appropriate. It would be very difficult if you try to pin down one particular age or not, so I thought it was better to do it this way.

Senator Joyal: You concur with my interpretation that in fact —

Mr. Nicholson: In your example of a person who is 45, the age is probably not the consideration. You said the individual was suffering from a mental condition or other factors, and that presumably would be taken into consideration at the time.

However, when you have a combination, as we have indicated, of the individual's age and their other circumstances, this is what the bill addresses. We leave that in the hands of the court.

Senator Joyal: When the bill mentions ``significant impact,'' as you said, yourself, and we mentioned it before your arrival, we legislated two years ago, or so, on section 380 in the context of fraud. Could you try to help us understand what the notion is of ``significant impact''? What does it mean?

Mr. Nicholson: As I have indicated to you in questioning before, it is like trying to define in the Criminal Code or any part of our law what is ``reasonable.'' This is why we call upon our justice system. As you know, I have complete confidence in our justice system. It does not get better anywhere else in the world than here. I am confident these words will be given proper consideration and an appropriate interpretation.

Just as you and, I believe, others have asked me to define ``reasonable'' again, I will not get into the man on the Tottenham bus or the tests used in that area, but I have complete confidence that the judiciary will interpret these in an appropriate manner.

Senator Joyal: You cannot inform us how, in case law, the courts have been interpreting those words to give us some idea of the elements the court takes into consideration when they have to decide on that?

Mr. Nicholson: As with the case of ``significant'' and ``reasonable,'' the courts take the laws as they are drafted and enacted by Parliament and they apply the reasonable interpretation to all the different sections of the Criminal Code. I have every confidence they will do the same thing here.

Senator Joyal: Thank you.

The Chair: Minister, I think this would be the appropriate time to move on to Bill S-12.

Mr. Nicholson: Thank you, Mr. Chair.

The incorporation by reference in regulations bill, known as Bill S-12, introduced in this chamber, is an important tool for managing regulations in an effective and responsive manner. It is a response to the concerns expressed by the Standing Joint Committee on Scrutiny of Regulations and aims to create the necessary legal certainty around the use of this drafting technique.

Incorporation by reference has become an essential regulatory tool, particularly over the last 15 years. It is an effective way of achieving many of the objectives in a cabinet directive on regulatory management, which aims to improve the efficiency of regulations.

Regulations that use this drafting technique are effective in facilitating intergovernmental cooperation and collaboration. Such regulations can also minimize duplication by incorporating the legislation of other jurisdictions with which we want to harmonize or by incorporating standards developed, for instance, on a national level.

The use of this technique also favours cooperation and intergovernmental harmonization, which is a key objective of the Regulatory Cooperation Council. By incorporating reference legislation, we are helping to reduce overlapping, which is an important objective of the Red Tape Reduction Commission, the report of which was tabled earlier this year.

It is an effective way, as well, to benefit from the expertise of standards-writing bodies in Canada and internationally. The Canada National Standards System is recognized all over the world. Organizations such as the Canadian Standards Association and the Canadian General Standards Board work with interested stakeholders and consult with and tap into their expertise. They develop standards through a consultative, consensus-based approach using volunteers, experts and interested stakeholders.

These standards, as well as those used as international standards, such as the International Organization for Standardization, give the government both access to unparalleled expertise, as well as to a regulatory tool that is immediately responsive to changes in science and technology. This is necessary in a world in which technology changes at a rapid pace. Ambulatory incorporation by reference means our regulators have access to the current consensus as to what is the best technology and approach to protect the health and safety of Canadians.

On the question of accessibility, incorporation by reference is a drafting technique that has many advantages, but it comes with certain responsibilities. One of the most important ones is to ensure that the material which is incorporated by reference is accessible. While this requirement, as you may know, already exists in common law, the bill goes a step further and, for the first time in federal legislation, will impose a positive obligation on all regulation makers to ensure that the material it incorporates is accessible.

This approach in Bill S-12 is one that reflects the necessary flexibility to respond to the different types and sources of materials that may be incorporated by reference. It creates a meaningful obligation on regulation makers, which will ensure that a person can, with a reasonable amount of effort, have access to a copy of the document incorporated by reference and balances the obligation on regulators to ensure accessibility with the need for innovation and flexibility.

Bill S-12 also preserves the important role of the Standing Joint Committee for the Scrutiny of Regulations. It clarifies that the publication and registration requirements of the Statutory Instruments Act do not apply to incorporated material, and has no legal impact on the mandate of the standing joint committee to review incorporated material. It remains open to that committee to review incorporated documents at the time the regulation is made or later, at any time during the course of the life of the regulation.

While Bill S-12 is undoubtedly an important initiative, it must still be put in perspective. Ambulatory incorporation by reference is already widely used in federal regulations and rarely have the courts been asked to pronounce on the issue. One of the primary goals is to provide expressly for the authority to use a drafting technique that is consistent with the government's current legal practice in this matter.

It bears repeating that the bill does not confer authority to simply incorporate by reference without constraints. The use of the technique, like any aspect of regulation-making authority, is shaped by the enabling statute under which the regulations are made.

In conclusion, the bill is intended to confirm the government's access to a drafting technique that has become a key tool in modern and effective regulation. At the same time, it recognizes the corresponding responsibilities on regulation-making authorities that use this technique by striking an appropriate balance that reflects the reality of modern regulation while respecting the fundamental principles of justice.

Those are my comments, Mr. Chair.

The Chair: Thank you, minister. I know that Senator Fraser has a question.

Senator Fraser: Thank you very much, chair. Thank you for being here, minister. It is a busy time for everyone at this time of year, and to handle two bills in one appearance is a bit of a tour de force.

I was interested that you mentioned the Standing Joint Committee for the Scrutiny of Regulations because, as I am sure you know, that committee has more than once expressed reservations about what it would consider, I gather, overexpansion of the use of the incorporation by reference.

Mr. Nicholson: Yes.

Senator Fraser: As I am sure you recall, it has suggested that incorporation by automatic reference, ambulatory in particular, should be limited to basically Canadian legislation — federal and provincial legislation. The theory being, I think, it is just a step too far to set loose automatic incorporation from here to eternity of what foreign jurisdictions or, indeed, industry associations, or whatever, may do.

Why did you decide not to take the committee's advice on that matter?

Mr. Nicholson: Again, as you know, quite a bit of what the committee recommended is part of this particular bill, particularly moving forward with giving statutory authority with respect to incorporation by reference. The committee quite correctly pointed out that this technique is increasingly being used by not just the federal government but by provincial governments and other countries and jurisdictions around the world. On a regular basis, they called for some type of specific statutory authority to do this, so we are moving in that direction.

With respect to specifically what you refer to as ambulatory incorporation by reference, this is consistent with what actually takes place in the world. We are trying to harmonize generally our regulations and our laws with our trading partners. We sometimes would like to incorporate standards that have been set on a worldwide basis. There is a greater internationalism involved with so many different standards or regulations, but this bill does not take away in any way Parliament's right to make these laws or to make changes or, indeed, to withdraw the statute under which these regulations are made.

Again, I am very pleased, as you probably gathered from my opening comments, with the requirement put in there with respect to accessibility. It is important for people, organizations or groups that deal with these regulations that the material be accessible at some point in time. While I have had people say to me that these things are accessible now, I think it was important to put it in the legislation.

Overall I would state to the standing committee and to those who look at this that this is a considerable step in the right direction and we are on the right track.

Senator Fraser: We had some witnesses last week who, while generally supportive of the thrust of the legislation, did express some concerns and, in particular, a desire to see guidelines before the bill comes into force setting out rather more specifically elements such as what can and cannot be incorporated by reference.

One of the things the Canadian Standards Council does is ensure that regulations that are incorporated by reference meet Canadian standards — not just technical standards, but things like our official languages requirements.

How would you respond to the concept of guidelines?

Mr. Nicholson: The bill that is before you now is consistent with the law as it exists in Canada with respect to our codifying the common law and, indeed, consistent with what the Supreme Court has said with respect to incorporation by reference. There is no taking away from anything that is not already in the law in Canada. Indeed, we are all better protected, quite frankly, when a number of these provisions are codified so that they can stand up to analysis and inspection and ensure that they are all reasonable and fair.

Again, there is no attempt to limit in any way the enacting ability of either house of Parliament or Parliament's ability to say what and where and how they want these matters dealt with. I would say, too, it is consistent with the common law that is in practice right now and certainly consistent with what the Supreme Court of Canada has to say on this.

Senator Fraser: Following on my last question, for example, if we are incorporating by reference American regulations, particularly ambulatory — that may change as time goes on — they will be passed in English only. Who will be responsible for ensuring that they are accessible in Canada to francophones?

Mr. Nicholson: Again, all of these issues are the responsibility of the enacting committee or body that puts these into effect. Indeed, reference throughout the world to different documentation has been upheld by the Supreme Court of Canada. All of this will be consistent with what the Supreme Court of Canada has said with respect to all documentation that is used in this country. There will be no change on that whatsoever.

Senator Frum: I agree that it has been a tour de force, minister. Thank you for being here.

You mentioned the Standards Council of Canada. Indeed they testified here last week and were extremely supportive of this legislation. They spoke about the efficiencies it will add and how there are cases sometimes where old standards stay on the books because, without ambulatory incorporation of reference, the processes can be very slow.

From an efficiency point of view, is this why your department chose this approach, as opposed to on a case-by-case basis trying to revise each enabling statute?

Mr. Nicholson: These things change very quickly, as you know, senator. We want to have the most up-to-date and best regulations. If we are talking about areas of safety, for instance, we want to have the very latest.

I do not have to explain to you, because I am sure you are aware, and certainly you have heard, that when new, better standards come onto the market it can be a long, involved process to be continuously changing some of the small details and updating them.

It seems to me that the way to go is with respect to the ambulatory incorporation by reference. Again, this in no way takes away Parliament's ability or sovereignty to make changes or even to withdraw the legislation or to change the regulations. However, we know how quickly things change. As you pointed out, even looking back 15 years to references in regulations, you can quickly come to a conclusion about how quickly they become out of date.

It is more consistent with the changes in technology and the importance of staying up to date in areas of health and safety to use this particular technique. You will see more of this throughout the world. People will be going in this direction in an effort to cut down on the red tape and to provide the very best protection and laws on the books for their public.

Senator Frum: How do you see this having an impact on our trade practices, in particular, export controls?

Mr. Nicholson: In terms of harmonizing our trade or our relationships with other countries, these are important factors. To the extent that these things are not in sync with each other and not harmonized, they contribute to barriers to the trade of important information between countries. To the extent that we are protecting Canadian interests throughout this, it is a good idea.

I get this all the time, quite frankly, when I talk to some of my counterparts throughout the world. To the extent possible, they encourage a consistency with respect to the language when we talk about, for instance, certain criminal offences. They say that we are further ahead if we are trying to use basically the same terms in whatever language, because that international cooperation is easier in the exchange of information in our efforts to crack down on international crime. That is not the basis of this, but the same principle applies. To the extent that we are talking ``the same language'' in terms of the details that we want, we are further ahead in any language while having the same principles.

Senator Frum: Thank you, minister.

Senator Jaffer: Minister, I know your department does a lot of work. I believe that these are sweeping powers. From what I understand of Bill S-12, it would broadly authorize the use of ambulatory incorporation by reference. The drafting technique will change materials included in the regulation without being subject to regulatory oversight requirements related, for example, to consultation, examination, registration, publication, review, et cetera.

You are a very careful person. I would like to know what kind of oversight you are placing in your department. What will you do to inform parliamentarians, stakeholders and, more importantly, the public once the regulations are in place? How will you inform them?

Mr. Nicholson: You touched on a number of issues there.

The bill does not deal exclusively with ambulatory, but also with static incorporation by reference; I want that to be clear.

You are quite correct: The Department of Justice does a lot of work in these areas in terms of advice or assistance in these.

To be fair, incorporation of reference is already part of the process. It is broadly referred to as part of the common law in the sense that it is being done now. There will not be a huge change, obviously, for departments with the fact that there is a statutory authority. As I indicated to Senator Fraser, having enacted a statutory authority that is consistent and follows the recommendation of the standing committee, it is not enough that it is just done; you should have a statutory authority. I do not mind that.

I have found that people in these areas who are quite involved with particular regulations are quite well informed of this. There are those who said it was not necessary to put ``that accessibility is required,'' but I believed it was required because groups and organizations deal with these regulations all the time. We had to go that one step further.

To be fair, the advice that I received was that people make these available and try to cooperate. If you are an organization, a group, or an individual dealing with these things, you are generally an expert in this area. However, I believe we had to go that one step further and say that it is accessible and available.

It actually helps us as legislators when some group or organization says they cannot get the regulations or the details that have been incorporated into their regulation, because we will be in a better position to do something about it if it is part of the legislation. This offers greater protection to those individuals and groups that deal with these things on a regular basis.

Senator Jaffer: How will you let parliamentarians know when that happens? What will be the process?

Mr. Nicholson: You will probably hear about it as parliamentarians. If it is not working or people do not have access, you will probably hear about it. It is across a wide range of government departments and with lots of cooperation between other levels of government, for instance, the provinces. With the added requirements and the codification of this, Canadians will be better informed and in a better position to ensure that their interests are being protected.

Senator McIntyre: I understand that the aim of Bill C-36 is basically twofold: to avoid duplication and to promote harmonization. Bearing those changes in mind, are you confident that the amendments in the bill meet the requirements of the legislation and the regulations as they stand?

Mr. Nicholson: I think they do. I believe they are a considerable improvement.

Have a look at what other countries are doing and you can see the direction that they are moving in, such as New Zealand and others that are having a look at that. Any doubters will say that we are on the right track with what the Americans are trying to do when you hear complaints from people saying that the regulations are not up to date.

I hear this many times about the Criminal Code. The Criminal Code gets locked into place and the technology changes. You would hope that we would continue to update these things. We certainly try, as you know, as a government.

However, in terms of harmonization, reducing red tape and getting out the message to people on how to go about business or what they can expect, these are huge improvements. That is why I had no hesitation when I said to your colleagues across the table that the comments by the committee on this that there was no statutory authorization for this sort of hits home. Yes, I can see that. I think that the technique is being used and at least looked at by a wide range of countries in response to changing technology and standards. It is entirely appropriate.

This will completely modernize what Canada is doing consistent with what is already in practice in this country. I predict that other countries looking at this will continue. Whether they have arrived at where we are today with this bill, they will continue moving in this direction because this is what makes sense.

Senator Joyal: Minister, you referred to the concept of accessibility, as stated in clause 18.3 of the bill on page 3. It is puzzling that five lines later the bill states that, although the regulations might not be published in the Canada Gazette, it does not mean they are not accessible.

As you know, traditionally we have always held that a regulation has to be published in the Canada Gazette because that is the source of such information for everyone in Canada, especially those who are interested in specific activities that are subject to regulations. That is where they will look because it is official. Where will they go now that the regulations must be accessible but will not have to be published in the Canada Gazette? What will be the means of accessibility in that context?

Mr. Nicholson: The regulations will still be in the Canada Gazette. I have that correct, do I, Mr. Hallée?

The regulation itself, by reason of the fact that it is incorporated and is not also published in the Canada Gazette does not make it invalid. That is all we are saying with respect to that particular section.

Senator Joyal: How will you have access? If you incorporate, for example, foreign legislation, as my colleague Senator Fraser mentioned, we have been told that from all the elements that are incorporated, about 25 per cent comes from foreign legislation, which is a big chunk of reality. How will I have access to foreign legislation that is incorporated?

Mr. Nicholson: There are many ways. For instance, there are the regulations and the standards put out by the Standards Council of Canada. When you became involved with this, you were given a number of examples that I believe were transmitted to you. The people who are in the business of producing hockey helmets or in the business of trade know how to access these things; you can go online and get them or request publications of these matters here.

Again, we are talking about individuals who are experts, the experts in that particular area. Or, if that is your business, you will obtain these things. For instance, people importing and exporting goods in and out of the country do have the documentation. What we have done in this bill is go one step further and determined that it must be accessible. If you say that somehow the regulations of some particular board referred to in the regulation are not acceptable, then we are in a much stronger position to do something about it now — and I think you will have to agree with me on that, senator — than the day when there was no statutory authority or regulation requiring that.

I cannot agree with you that the only way people can have notice of something is to have the details of what is incorporated by reference published in the Canada Gazette, that people will not have accessibility. I cannot buy that. The fact that the regulation is there, that is where you begin your process. If, for whatever reason, you find that information inaccessible, then you have remedies, because it is required by the law.

Senator Joyal: That is the reason the Standards Council of Canada in its brief to us last week clearly specified, and I quote:

We believe that a government-wide policy or guideline that provides guidance to regulators on the appropriate consideration, such as how and when to use each of the methods, is needed.

They have suggested that in order to complement what is in this bill. My question to you is this: Do you agree with the need for such a policy and guideline to be enacted by the government to ensure that this bill will satisfy its objectives?

Mr. Nicholson: Again, I believe it does satisfy its objectives. I might call on Mr. Hallée to add additional comments on that.

I would say to the individuals who made those representations here that this is a considerable and significant step forward in either accountability or accessibility and, indeed, in reducing the challenge that individuals have to work with these regulations right now. Mr. Hallée?

Senator Joyal: Mr. Minister, in all fairness to the Standards Council of Canada, they have not contested the objective of the bill; they agree with the bill. They just suggested that, as a complement to the objective of the bill, we need that policy and guideline in order to ensure that we —

Mr. Nicholson: I appreciate your comments. We have to take it one step at a time here, senator.

Again, I think this is a considerable step forward. If there are those who make recommendations for other changes in the future, we will always have a look at them, but we have to begin with this.

The Chair: Minister, I will jump in here. I want to thank you and your officials for appearing here today and assisting the committee in their consideration of two pieces of legislation. It is very much appreciated.

We will now get under way with our second panel today for the second hour, continuing our consideration of Bill C- 36, on elder abuse.

For this panel I would like to introduce to the committee, from the Social Services Network, Dr. Naila Butt, Executive Director; from the Canadian Nurses Association, Barbara Mildon, President, and Norma Freeman, Nurse Advisor, Professional Practice; and, appearing by video conference from the Montreal Jewish General Hospital, Maxine Lithwick, Director, Department of Social Services.

Ms. Butt, I believe you will begin.

Dr. Naila Butt, Executive Director, Social Services Network: I would like to thank the Standing Senate Committee on Legal and Constitutional Affairs for inviting the Social Services Network to appear before you as you are examining Bill C-36 in reference to the issue of elder abuse.

The Social Services Network is a not-for-profit charitable organization established in 2004 to deliver culturally and linguistically appropriate services to the diverse South Asian population living in the greater Toronto area. Our work on critical issues affecting South Asian families has established ourselves as a major provincial and national player, particularly as we are at the forefront of addressing the issue of violence in South Asian families, including a strong focus on elder abuse.

One of our main avenues for addressing the issue is through our annual province-wide conference Impact of Family Violence: A South Asian Perspective and the pan-Canadian initiative funded by Human Resources and Skills Development Canada's New Horizons for Seniors Program, which we entitled: Building A Safe Community for South Asian Seniors. The goal of this project is to work in four local communities toward a coordinated community response and increased knowledge on elder abuse awareness for South Asian families and the development of effective supports.

Our front-line staff witnessed elder abuse in South Asian communities as an increasing problem. This has been confirmed with consultations with seniors, and other community workers and agencies who participated in our conference in 2011 and this year in May 2012. Detailed in the Impact of Family Violence Conference Report — and I have a copy of it for you — seniors and front-line workers described the psychological, financial, verbal and emotional abuse that they were experiencing in their homes, leading to depression and other mental health issues.

Tamil seniors from war-torn countries also suffer from post-traumatic stress disorder. Many seniors are experiencing exploitation, and there is an expectation that they are to provide child care, housework and cooking for the family. Violation of rights, false information about their entitlements as sponsored immigrants, and fear of deportation, the police and a lack of information about rights, entitlements, and how to navigate the system all keep South Asian seniors vulnerable to abuse.

Why do not they seek help? 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 are eligible for the Canada Pension Plan only after being in Canada for 10 years and that, too, is sometimes used by their children due to their under or unemployment and many other immigrant stressors. Seniors fear that accessing mainstream service agencies and their intervention may result in family breakup, which is of prime importance.

Recently, an OMNI documentary was aired on television called On Their Own: The Trials of South Asian Seniors, which highlights this issue effectively. I have a copy of that documentary that I will be sharing later.

What can be done? More support and funding for South Asian seniors' programs that are delivered by agencies run by and serve 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.

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 centers — thanks to HRSDC funding, we are able to focus on developing, piloting and expanding the reach of those strategies.

In conclusion, while legislative changes are necessary to reflect society's values and serve as a deterrent to negative behaviour, sentencing or criminalization of the issue alone will not solve the problem. We have to address the distinct factors that influence the occurrence of elder abuse in South Asian homes. The factors are complex, and interventions and explanations that emphasize ``culture'' often provide an overly simplistic analysis to the complex and confusing web of problems that South Asian families in Canada may be engulfed in.

Our general view is that increased criminalization of abuse without addressing the root causes of elder abuse, such as poverty experienced by immigrants, more supports for family caregivers and the lack of culturally effective services for seniors, will have limited short-term impact in our communities.

Clearly, Bill C-36 will also not address situations which fall short of criminal activity. It only applies once abuse has occurred; it does little to prevent it. There is also a concern that with criminalization, in this case, harsh sentencing for elder abuse, all that will happen is that victims will be less likely to speak up and complain because of the implications for their family members, that is, the accused perpetrators.

We have to address the issue in a holistic and meaningful way. If the goal is to stop elder abuse, then this bill alone is not the answer.

The South Asian population is growing rapidly, and South Asians continue to remain one of the largest visible minorities in Ontario and Canada as a whole; and the senior population is rapidly growing. With such a dramatic growth rate for the South Asian population, we are seeing a critical need for an expansion of our services for seniors, particularly in the areas of prevention and more effective response to elder abuse.

Thank you once again for giving us this opportunity to address the committee and recognizing the importance of including the specific issues affecting South Asian seniors pertaining to elder abuse within the protecting Canada's seniors act.

The Chair: Ms. Mildon, I believe you have an opening statement.

Barbara Mildon, President, Canadian Nurses Association: Thank you for the opportunity to be here on behalf of the Canadian Nurses Association, CNA, which represents more than 146,000 of Canada's registered nurses.

I especially welcome the opportunity to be here because, when I was a home care nurse, I cared for many seniors, the memories of whom are often close.

CNA supports the proposed changes to the Criminal Code. We believe that having an understanding of the abuse of the socially vulnerable, including seniors, woven into section 718 is a positive step forward in addressing criminal elder abuse. In doing so, Canada is acknowledging that the same act of abuse may cause different degrees of damage in different people.

CNA recognizes elder abuse as any action or deliberate inaction by a person in a position of trust that causes harm, or could reasonably be expected to cause harm, to an older person. This includes all types of abuse: emotional, physical, sexual and financial, as well as instances of neglect and violation of rights.

CNA understands vulnerability as a social condition, not an inherent quality of an individual. Vulnerability is not a static condition, as circumstances change and so do the people involved in a situation of abuse. In other words, people can be more or less vulnerable to different social conditions at different points in their lives. This definition underscores why the provisions within Bill C-36 to recognize vulnerability beyond age alone are important.

Canada's registered nurses can tell you that elder abuse is an issue in need of much attention. RNs work with Canadians from cradle to grave, in every facet of the health system — in the home, schools, community health centres, hospitals and long-term care facilities — and in every Canadian jurisdiction. We are witness to elder abuse and play a critical role in identifying, reporting and testifying in these cases in order to protect the safety and dignity of our patients.

CNA strongly believes that everyone — health providers, governments, employers, and Canadians — have a role to play in promoting a healthy Canada. Therefore, these amendments to the Criminal Code must be accompanied by educational resources to ensure that the public at large and those within the legal system have the knowledge they need to recognize and subsequently to prosecute elder abuse.

Having the Criminal Code include measures to prosecute and sentence on the basis of age and other factors that contribute to the impact of the crime has the potential to be an important deterrent to elder abuse. However, a bill alone cannot safeguard the caring, dignity and respect that older Canadians deserve. In order to prevent elder abuse, we must also build awareness of the issue, promote abuse reporting mechanisms, and tackle the root causes of vulnerability, including poverty, isolation and infirmity. Elder abuse is not only a patient safety issue. It is also a public health imperative.

In recognizing that we all have a role to play in a healthy Canada, it is important to understand the role of collaboration when dealing with the complex issue of elder abuse.

This issue requires the health, legal, private and government sectors to work together to shed much needed light on elder abuse and to educate those who work with and care for our seniors.

Elder abuse programs developed with the help of federal funding are currently being implemented to educate front- line workers. Topics include understanding and recognizing elder abuse; provincial, territorial and federal laws on elder abuse; what to do when elder abuse is present or suspected; and creating a work environment that values the safety and well-being of seniors.

Registered nurses across Canada will, of course, continue to promote the prevention of elder abuse. By continuing to fund successful projects to promote elder abuse awareness and investing in a public health-based prevention strategy, the federal government can work with Canadians to take meaningful action in stopping the cycle of elder abuse.

I want to make one last important point. Elders are our parents, our grandparents, our friends and our neighbours. They have helped shape Canada throughout its history, and each of our own individual lives. As Canada's population grows, as we continue to be living longer lives, older Canadians will continue to make important contributions to our society. We must all recognize this value and keep it at the heart of our care and treatment of older Canadians.

In summary, CNA supports Bill C-36, the protecting Canada's seniors act.

Thank you for your time and attention today, and I look forward to your questions.

The Chair: Thank you.

Ms. Lithwick, do you have some opening comments?

Maxine Lithwick, Director, Department of Social Services, Montreal Jewish General Hospital: I do. Thank you very much for inviting me to appear before you. I will introduce myself briefly. I am a social worker and throughout my career I have been involved in the detection, prevention and intervention of elder abuse.

Recently, I have been a consultant to the Minister of Families and Seniors in Quebec, on their recent elder abuse action plan. I have also been involved in many research projects to further the understanding and the dynamics of elder abuse.

In general, I want to state that I agree with the principles set out in the first paragraph of the legislative summary, that this amendment will help ensure that sentencing for crimes against elderly Canadians reflects the significant impact crime has on their lives, for people who target the elderly because of their vulnerability, for example, financial advisers who take people's life savings; who pay caregivers who exploit the elderly and take their money but do not give them the help they need and who leave the older person without money and neglected; and who rob the elderly and target them in the street or in their home because they know they are a weak victim, deserve to have a sentence that reflects the impact this has had on their victim's life. It is also important to somehow get the message across: Do not mess with vulnerable people. Our society does not accept it.

I must also re-emphasize the complexity of senior mistreatment and the complexity when the situation gets to a judicial level. As the previous speakers have mentioned, elder abuse cannot be handled just by a law, and this law, although it has a role to play, is not the whole answer.

The legislative summary captures most of the elements concerning a bill of this nature. I will emphasize again that judicial recourses are often a last recourse and often in the most extreme circumstances.

However, at the same time, according to our knowledge, senior mistreatment in all of its forms is under-reported for the reasons mentioned in your summary. I do believe that the increase of police-reported family violence against seniors has risen because of increased knowledge about elder abuse within the community by seniors, by law enforcement officers, by prosecutors and by judges.

I still believe that we are at the tip of the iceberg in knowing the prevalence and the impact this problem has on older people. It is only with education and monitoring that we will begin to get a more realistic picture of what the actual numbers are. Again, what gets reported is usually when a situation has become extreme, or when it is clear that a crime has been committed.

In the recent past, police officers have had a hard time seeing this type of crime, and sometimes rightfully so. For example, this is a story from many years ago. A neighbour calls the CLSC, our local health and social service network, and says she hears yelling and screaming and things breaking in her neighbour's apartment. The neighbours are a couple in their nineties. I advise her to call the police. The police arrive and find a very elderly couple yelling at each other. Both are bleeding because they had been hit by objects; broken plates and vases are strewn around the apartment. Both are bruised, but neither seems seriously injured. When the police try to get a story, the wife says defiantly to the police officer, ``He called me syphilitic whore, so I hit him,'' and he says he hit her back. He says, ``She has to take care of me, and she is always going out and leaving me alone. I cannot be alone and who is she with anyway?'' and so it goes.

Long story short, a violent situation has occurred, similar to conjugal violence. There is no apparent witness, except for the police officers, to this crime and the wife says, ``If you arrest my husband, I will kill myself.'' They were very dramatic. She would definitely not testify against her husband, but the reality is that they could seriously hurt each other, and the police did not see this as a family violence situation, but of two old people losing it, and they did not know what to do. They certainly did not want to take either one of them to jail.

These are the types of situations we sometimes confront where there is violence going on. Social services needed to be involved and a criminal resolution was not necessarily the best solution, but yet this couple may need protection. In the end, social services did get involved.

Another example of a situation where possibly the amendment could be applied is another complex case. A 72-year- old man has a dual diagnosis of schizophrenia and personality disorder. This man is treated by court order for his schizophrenia, but there is no treatment for his personality disorder. When he was hospitalized on a court order due to alcohol abuse and a psychotic episode related to a substance abuse, he raped a 58-year-old woman on the floor, a frail person. Mister was not psychotic when he performed this act. The woman was traumatized. Police were called and a report was taken, but the issue is when the man gets to court often he is referred back to hospital as he has a psychiatric history. Obviously the hospital does not want to hospitalize him, because medically he is stable. They cannot treat his personality disorder, and he could do harm to another patient on the floor. The fact is he is not criminally insane. He knows what he did, but does not care. The judicial system keeps referring him back to the medical system where he tends to victimize more vulnerable people.

Senior mistreatment cases are difficult and often can include elements of mental health problems or drug and alcohol addiction. However, again there is a need for well-trained police officers, prosecutors and judges. There is a need for a multi-sectorial approach.

This man is dangerous and can cause extreme harm to frail older and younger people. Hopefully, this amendment will allow judges to look at the impact of his crime on his victims and render the correct judgment.

I had another similar situation when a son with a psychiatric history beat up his mother. He kept on being released. He was not criminally insane, but he could be very aggressive and, of course, the mother would not testify against her son, but she was so badly beat up she had to be hospitalized. These are difficult cases to know what to do.

In your summary, you talked about the high risk of Aboriginal Canadians. Another at-risk population is older women who have been marginalized most of their lives — drug addicts, prostitutes, et cetera. In a research project I did many years ago, we studied older single women who were victims of abuse. These women had been on welfare most of their lives and had experienced a life of violence. As older women, they continued to be victimized by landlords and others. They would be physically, sexually and financially abused more frequently than women of the same age who did not come from the same background. These victims are harder to find, because they do not report that they are victims of crime.

Another at-risk population is seniors sponsored by their children, but the first speaker spoke about that so I will not add anything here.

There are other issues to keep in mind. Court processes are long and not necessarily elder-friendly. Victims may have cognitive incapacity making their testimony difficult. Another issue we did not talk about is financial institutions often witness abuse or fraud going on. It is not clear to many banks the right to report, and there is a fear to report to the police because they do not know if their client will collaborate. There are also cultural and linguistic barriers.

I have some recommendations. 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.

In conclusion, victims of abuse come from all backgrounds. Anyone is at risk of being a victim of abuse, but it is a crime that is hard to detect and one that could be linked to a complex dynamic. This bill does get the right message, but there needs to be multi-sectorial framework in the judicial system to build knowledge on how this amendment helps and how they are supporting elder victims of crime.

Senator Jaffer: Thank you very much for all your presentations. This certainly will help our work and give us a better understanding of what you face from day to day.

I will start with Ms. Butt. I, myself, am a South Asian, so I do not say this with a lot of pride, but there is a real increase of elder abuse in the South Asian community, and I always feel one has to name it to deal with it. It has had more of an increase than any other community because of the factors that you set out. I will not set them out again.

You brought up the issue of honour. I would appreciate if you would explain what you mean by honour and why would people who are abused not speak out because of dishonour to their family?

Dr. Butt: First of all, with due respect, I did not use the word ``honour.''

Senator Jaffer: I heard you say ``honour.''

Dr. Butt: Again, whenever violence is associated with honour, there is obviously a difference, because it is not honourable to commit violence. There is no relationship.

What I do say is that they are silenced. Again, it is like the quote we have in the South Asian community that 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.

I think that is one of the reasons why they do not and, no matter which cultural background, you are very cautious that your children should not suffer, so I think that is the main reason why the seniors do not want to report, although they are suffering.

Senator Jaffer: The bill says that they will consider the victim's age and other personal circumstances.

You mentioned about not wanting to wash dirty linen in public. Would it be easy for those who have been abused to be able to explain in an open court as to what is happening to them personally?

Dr. Butt: I think it will be difficult, again because of the language and the cultural barriers.

I think we are talking more about prevention, because there is a lot that happens before the case comes to the court. We are saying that we need to work with the community in an integrated, holistic way so that there is fairness and support for the caregivers; so the seniors know what their legal rights are; so there is support for those seniors who want to access the system; and so they know how to get the resources. Once you know that, you can prevent that. Once abuse has occurred, it is already too late.

We need to work on this before that and see how we can support these seniors so that it does not come to that stage. When it does come to that stage, then, again, keeping the family unit as a whole is so important. There is an opportunity to work together and give support so that it does not become a burden on the system.

Senator Jaffer: Should I put my name on second round or ask another question?

The Chair: Go ahead right now.

Senator Jaffer: Thank you.

Following what Dr. Butt said, my question is to all of you. What the government has done is a good first step. It is dealing with risk. What Dr. Butt and all of you have said is that just dealing with risk is one factor, but we need to look at a safety net — a holistic way so that we deal with it before it comes to the courts. Once it comes through the court system, the family has fallen apart.

What do we need in place besides this bill to build a safety net? The minister was here and he spoke well about horizons that raise awareness. Those are ads. You have all mentioned some things, but what should the safety net look like to prevent elder abuse?

Ms. Mildon: I would be happy to start that. Thank you for the question, Senator Jaffer.

You are talking about what is commonly known as upstream; how do we stop this upstream? There are a couple of things that come to mind. The first is a primary health care network where we have family physicians, nurse practitioners and clinics that see these vulnerable patients and bring them into a circle of care. We have to have strong primary care networks.

The second piece is public health nursing. Public health nursing has been one of those areas that has lost ground over recent years, yet it is public health nurses who can go into family homes, be the family counsellors, detect this problem earlier on and be instrumental in addressing and reducing it.

Following up on the previous conversation, I think that we need some kinds of special teams, when there are situations that our third speaker spoke to; namely, when police are called. There needs to be a network called into the home that can help in those situations.

I can liken it in the psychiatric world. I work in the mental health field on a daily basis. We have a mental health support team that consists of police officers, nurses and social workers. They can be called in for situations like this. Imagine if we had a team like that which could be called into those situations.

Those would be the three things that I would put in place.

The Chair: Ms. Lithwick, do you wish to add anything?

Ms. Lithwick: Yes, please. I would like to talk about what has been going on in Quebec. For many years there has been something like a grassroots development of developing awareness about senior mistreatment and getting seniors, seniors' organizations, professionals, police and banks involved.

The Governmental Action Plan to Counter Elder Abuse is trying not just to sensitize the community and sensitize seniors, but also to sensitize professionals. There are training programs for professionals. We are working on inter- sectorial collaborations. We are trying to get the message out there. We are speaking to seniors groups all the time and we are getting seniors to speak to seniors.

I think that the silence is being broken about elder abuse. I have been working in this field for over 20 years, and the advancement and the knowledge sharing that is going on now is going at a tremendous pace. However, we are still at the tip of the iceberg of knowing everything about the dynamics and what the best intervention modalities are that we can use to prevent or stop it.

Everything is integrated. It takes health and social services, but we also do have people who abuse the elderly in a criminal sense. Therefore, we have to also see that at the other end of the continuum. We have a complete continuum. Family violence is a very difficult and complex issue. That is where the social workers and the support system have to be involved.

Then you also have your person in the street who will just victimize the older person and that person should have the judicial process against him to the fullest extent possible, because they are only taking advantage of the older person because they are old.

We have to keep in mind that when we are talking about elder abuse and about the complete spectrum and continuum, but there are things that can be done and things we must continue to do. We have an info line. Right now it is available in English and French, but we have to make it available in many languages. We have to get community groups talking about this, again, in many languages. We have to get different communities developing prevention strategies and developing safe places where seniors can feel comfortable to go and talk and to learn how to prevent themselves from being a victim.

These things are going on, but we need to continue sharing them and developing them.

[Translation]

Senator Dagenais: Ladies, thank you for your testimony. My first question is for Ms. Butt.

You said that Bill C-36 is not necessarily a solution to the problems. However, do you not think that Bill C-36 could encourage victims who are abused by family members to file a complaint?

[English]

Dr. Butt: Bill C-36 is useful, but I am saying that the bill alone is not good on its own. If you are talking about the marginalized groups and if you are talking about seniors who do not understand the system, the language, who do not know the legal system and who are not even aware of their basic rights, that alone will not solve the problem. You need to have societal and community support in order for them to access and navigate the system.

It is a good deterrent, but if people do not know that these are what their rights are, that will not help long.

[Translation]

Senator Dagenais: Ms. Lithwick, can you assess — for our benefit — the psychological impact of the severity of a sentence on crime victims?

Ms. Lithwick: Honestly, I do not have the experience needed to truly understand or study the psychological impact of a sentence on a victim, as this piece of legislation is still not being enforced. However, if it has to do with other victims of crime, of violence, perhaps a severe sentence may make the victim feel like their complaints were heard.

Abusers are not necessarily family members. The abuser may be the accountant or the painter working in the house, or a young person. The situation is more complex when a family member is involved.

However, when the abuser is not a family member, a severe sentence may make the victim feel that they were taken seriously and that society wants to protect them.

Senator Dagenais: You are probably referring to what happened in Quebec in the case of Earl Jones and Vincent Lacroix, who defrauded seniors.

[English]

Senator White: My question is for Ms. Lithwick. I have been involved in setting up elder abuse services within police services over the last nine years. I am asking whether you have experience with the biggest challenge that we have found, which has been in the prosecutorial rather than investigative area: a lack of experience from prosecutors to deal with the myriad issues that typically face these cases. Particularly if it is familial, it is almost never one form of abuse and is multiple, such as financial, physical, et cetera. Do you know of any locations that have dealt with the prosecutorial issue and have had specialized prosecutors for elder abuse?

Ms. Lithwick: There are places in the states, but I cannot recall where. Some states have put together specialized prosecuting units where the whole office deals only with elder abuse. The prosecuting attorneys, the judges and everyone deal only with elder abuse.

I remember going to a presentation at a conference where they said that at the beginning, the referrals were not many but, after time, education and training, it became one of the busiest offices that they have. They are succeeding more in terms of prosecuting the right types of cases and getting the right kind of help for the other cases. It was an excellent presentation, and I wish I could tell you more about it.

Senator White: The second issue we were faced with in each of the locales where I was engaged in doing this was the fact that about 70 per cent of the police officer's work became education and they were almost overrun with providing education. Do any of you have comments as to whether there are strong education components outside of policing, because I am not convinced that is the right place for it to be, where police could have access?

Dr. Butt: The family violence conference that I spoke to is a partnership with the social services network of Toronto, York, Durham and Peel Regional Police, as well as the Children's Aid Society. It is a multi-sectoral, multipronged approach to address the issue of family violence. We are working together in a community development approach in which we inform, support and empower the various organizations, sectors, as well as the community to see what is needed.

The first conference basically was to identify the battles that the community faces. The second conference was about evidence-based solutions. The third conference, which will be in May 2013 in Peel, will deal with those kinds of issues. For example, what do you do when someone suffering from violence comes to you? What steps need to be taken? The need coming out of the conferences is: What do we do when the victim comes to us? How are we to proceed?

There is no magic bullet. This is something that you have to work on together. There is a social responsibility such that we have to work as a society with people who are suffering the most.

Ms. Mildon: I would love to build on that. A program that has been running for the last two years from 2010 to date is funded by HRSDC and is called the PEACE Project. It promotes elder abuse awareness centres of excellence. This project has been taking place in 10 centres across the country. It includes police on the advisory committee, I am pleased to say. They have created five education modules specifically for health care workers, both regulated and unregulated. The possibility now is to extend that publicly. I am happy to say that these particular modules are available widely on the Internet on NurseOne, which is a publicly accessible site. Furthermore, it can be spread.

When I testified about this topic a year or so ago, I talked about the public commercials on television about elder abuse. We need those kinds of programs to continue educating the public. I could not agree more that it is a continuum from prevention to prosecution. Getting more prevention and awareness is key.

Ms. Lithwick: May I add something?

The Chair: We will come back to you.

Senator Joyal: Thank you for your contribution to our understanding of the elderly who are the subjected to violence.

It is amazing that there is such a low percentage rate of reporting. Dr. Butt, you alluded to some of the family factors that might explain it to a point. Could you tell us about the other factors generally that might explain why a senior who is subjected to violence fails to report it?

The Alberta legislation is the Protection for Persons in Care Act. Apparently, there is legislation in Nova Scotia called the Adult Protection Act, whereby an obligation is established or recognized in those acts for someone aware of abuse to report it.

Would it not be better to have such an obligation in the Criminal Code for persons who are aware to report abuses to try to address the problem of low reporting? When we say ``low reporting,'' we mean ``low reaction.'' If it is not reported, no one will do anything and the abuse will continue. We will entertain the abuse, in fact. Should we not be doing that? This bill comes more or less after that — when the person has been found guilty. We should do something to stop the abuse. The obligation to report would at least stop the abuse.

What are your comments, based on your experience in the field, in response to my two questions? First, why is there such a low level of reporting; and, second, should we not establish an obligation to report abuse?

Dr. Butt: One of the other important things that we have to look at is the implications of reporting? If obligatory reporting means that the senior will be taken away from their children and put in a senior's home or the child will be put in jail, will they do that? Again, there is a negative effect.

The other thing we found out from the work we have been doing is that, for example, if seniors are sent into homes or to some other place, they feel that whatever they had before was much better. It is similar in the cases of women who are put in shelters, et cetera.

Senator Joyal: Yes, but we are in a vicious circle. If kids are in the care of parents who abuse them, we cannot say, ``We will take the kids away from their parents and they will be sad because they will not have his parents.'' At some time, you have to protect the kids and the security of the person.

Dr. Butt: It is not necessarily for the police. It is a case of building awareness in the community as a whole. In some countries, a bell bajao — ring the bell — campaign is done not for elder abuse but for women who suffer abuse. If anyone in the community hears that something is happening, they have only to ring the bell; and that stops the particular action. Raising the awareness of faith leaders, health service providers and the police has to be done collectively if you want to prevent abuse and ensure that everyone is aware. It has to be before the 9-1-1 call is needed so that people are aware.

For example, what was mentioned earlier is if someone was at the bank taking away cheques and someone else who has no relation to that person sees something happening, that is general awareness of society as a whole. If you raise that awareness about these issues, I think that is how it will happen.

The Chair: Ms. Lithwick, do you wish to comment?

Ms. Lithwick: Yes. I want to mention that we do have laws to protect older people who are not competent to make decisions for themselves and who live in vulnerable situations. We have an obligation to ensure they are protected.

For an older person who is living at home and is being neglected in terms of their day-to-day needs and is not competent to decide for themselves, we have an obligation to ensure that they are put in an environment where they get the care they need. That is one type of person.

For an older adult who is mentally competent, this is a debate that has been going on for many years. In the United States, they have mandatory reporting laws. They do not have a higher prevalence of elder abuse than we do here in Canada where we do not have mandatory reporting laws because there is a large amount of proof that must go into showing that a person has been abused. Also, if the person is incompetent, they have a right to refuse prosecution. That is why where they have had mandatory reporting laws it has not worked.

However, where they have laws for people in care, that is a different story. When people are in care in a home, they are vulnerable, and I agree that there should be mandatory reporting laws in those institutions because these people have been put there in the first place because they are vulnerable.

In terms of failure to report, there are many reasons for that. There is shame; a fear of losing the one person they may have an intimate relationship with, who might be their child, brother or sister; there is fear of reprisal; there is fear of abandonment; there is fear of placement. There are many reasons why there is a failure to report.

It is a complex situation because our goal in social services is to reduce the harm so that the person has quality of life. The last resort is judicial, and there is a role for that. Again, it is that continuum.

I hope I have answered your question.

Senator Joyal: Yes, to a point. I think Ms. Mildon wants to respond to that.

The Chair: Did you want to respond to that?

Ms. Mildon: I would be pleased to.

Just to build on the other comments, I think we have been the demarcation between self-reporting and reporting in care. There are rules, laws and statutes around reporting in care. In fact, as a regulated health professional, my college demands that I report any incidents of abuse to any patient of any age.

I think we are seeing the opportunity to look at child laws that cover child abuse. We need laws that cover the spectrum. I think that would be helpful.

Also, to answer your question about why people do not report, I simply echo that from a self-reporting perspective it is because of fear and the unknown. It is because one knows what they have and fears the consequences. Again, externally why it does not get reported, I think people do not know what to do or who to call.

Senator McIntyre: I would like to follow up on Senator Joyal's questions about reporting.

We know that elder abuse occurs either in a family home environment or in health institutions such as hospitals, long-term care facilities and other continuing care facilities. We also know that for various reasons, as you have rightfully pointed out, there is very little reporting of abuse in the context of the family environment setting; for example, when a person is either living alone or living with his or her spouse or partner. Under those circumstances, as was pointed out a while ago, there is practically no prosecution or very little prosecution because there is no or very little reporting.

My question is this: Is elder abuse reported when it occurs in health institutions? If so, how often is it reported? Are staff members instructed to report all incidents of elder abuse?

Ms. Mildon: I would be happy to begin. Certainly, yes, our college of nurses makes it clear that any abuse of any patient in our care must be reported and must have action taken. We have had various campaigns and legislation. I cannot speak to the particular bill in Ontario, but I do believe there is a bill following quite an extensive investigation of our long-term care settings. I know the Ontario Long Term Care Association has certainly advocated for that.

The short answer is yes. Is it enough and does it go far enough? There is always room for us to continue working on that.

Senator Jaffer: Ms. Lithwick, I know of the work that the Montreal Jewish General Hospital does, and I know that you deal with a lot of diverse communities.

One of the aspects of this bill is for people who have been abused to talk about their personal circumstances. Can you please comment from your experience how easy it would be for an abused person to relate their personal circumstances in an open court?

Ms. Lithwick: 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.

The only time that we will have an older person pressing charges is when there has been a severe crime. We encourage the person to do that because it is also a form of prevention so that it does not get worse. They will do that if they have the support and are working with someone who knows them.

We have been talking about elder abuse. We intervene in hundreds and hundreds of cases of elder abuse. There are only a limited amount of cases that end up going to court and a limited amount where we can get the victim to press charges. To get them to do so, they need the support, and it must be because we believe it will cause less harm to them and help them stop being a victim. However, no, it would not be an easy thing to do.

Senator Jaffer: You may have been thinking about the Minnesota model in the United States with a situation of elder abuse. You had forgotten the area. In Minnesota there is a lot of care for elder abuse, the kind of programs that my colleague Senator White was speaking about.

Ms. Lithwick: Yes, they have mandatory reporting. In most states they have mandatory reporting, but it is a whole different health and social services system. Often they do mandatory reporting as a way of getting health and social services into the home where there could be neglect going on. We are talking about a different context and a different system.

Where does the mandatory reporting go? Again, you have to look at the difference between a competent older adult, a person that is, for example, 65 years old and has children who are taking their money versus an 85-year-old who has that loss of autonomy and whose children are neglecting them and taking their money. We have to keep that in mind because an older adult is still a competent person who has a right to make bad decisions, the same way a woman in a situation of conjugal violence has that right.

We have to nuance who we are talking about. Vulnerable people, people with cognitive impairment and the physically dependent, need more protection. Older adults need to be educated. They have a right to live in difficult or not-so-great situations the same way any adult has that right. It is not a simple black or white answer.

The Chair: Thank you, witnesses. We appreciate your appearance here today and through video from Montreal for assisting the committee in its deliberations. It is very much appreciated.

Honourable senators, on our final panel today, I wish to introduce, from the Canadian Centre for Elder Law, Laura Tamblyn Watts, Senior Fellow; representing the National Initiative for the Care of the Elderly, NICE, Catherine Drillis, Co-chair, Legal Team; and appearing by video conference, from the Gerontology Research Centre at Simon Fraser University, Charmaine Spencer, Adjunct Professor.

Welcome all to the committee. We appreciate your appearance here today.

I understand, Ms. Drillis, that you will lead off. The floor is yours.

Catherine Drillis, Co-chair, Legal Team, National Initiative for the Care of the Elderly (NICE): I am Catherine Drillis, Co-chair, Legal Team of the National Initiative for the Care of the Elderly, known as the NICE Network, a national centre of excellence. I am here to present the perspective of our organization.

My presentation will be in three parts: First, I will give a detailed introduction of the organization, its structure and its impact; second, I will provide specific commentary on the legislation itself; lastly, I will present our recommendations for this important bill, should it pass.

To begin, the NICE Network is the largest gerontological association in Canada. We are dedicated to improving the lives and care of older adults both in Canada and internationally. Most importantly, the NICE Network is conducting research on a wide variety of issues related to aging. It is a research partner in the National Prevelance Study on Elder Abuse.

Our more than 2,000 members represent a broad spectrum of disciplines and professions, including gerontology, geriatric medicine, nursing, social work, rehabilitation science, sociology, psychology, policy, as well as community advocacy, criminal justice and the law. Seniors are involved at all levels of membership, research, governance and consultation.

Our members belong to one of seven of our ``Theme Teams.'' The Theme Teams focus on priority areas, according to their specialty and interest of their members. These are caregiving, dementia care, elder abuse, end-of-life issues, mental health, ethnicity and aging and law.

Team members work together to translate evidence-based research into easy-to-use interdisciplinary tools. These tools provide information to different audiences from seniors themselves, to families and caregivers, and to professional support organizations as well as policy-makers.

The NICE Network's tools are wildly popular. Since 2006, we have created more than 200 different tools, in both official languages. At last count, we have had over 900,000 separate requests for our tools. This represents literally millions of individual items being put into the hands of people who need this information.

Canadians are now able to make the best decisions possible for their own care, as well as having accurately informed caregivers and other support professionals knowledgeable about their needs.

Tools with legal content, particularly those around consent, capacity or elder abuse investigation issues, are some of our most popular and requested materials. In order to meet the ever-increasing need for tools addressing legal issues or having legal content, the legal theme team was established in May 2012, and it is that theme team that I have the honour of co-chairing.

The change to the Criminal Code is a positive and appropriate change. The NICE Network has three specific comments regarding the bill. First is appropriate response. We are in support of the passage of this bill because it will allow Crown counsel and judges to appropriately respond to the repellant nature of criminal elder abuse.

Second is deterrence. We believe that older adults are often targeted by predators because of increased social vulnerability. It is our opinion that passage of the bill may have a positive deterrent effect.

Third is the definition of the term ``vulnerable.'' The NICE network urges the Senate to adopt the interpretation of the term ``vulnerable'' as defined in the British Columbia provincial strategy document authored by the British Columbia Adult Abuse and Neglect Prevention Collaborative and the Canadian Centre for Elder Law.

In short, vulnerability is not inherent in certain persons because of their age, but rather all people can be vulnerable due to social condition.

In sum, the National Initiative for the Care of the Elderly Network enables all Canadians, and particularly professionals who work within our support systems, to make decisions on the basis of the current best evidence. The NICE Network knows and indeed focuses on closing the gap between good law and good policy and bad practice.

In conclusion, the NICE Network has four recommendations: first, this bill must be passed; second, competency- based training should be prioritized for those engaged in the criminal justice system; third, appropriate resources should be allocated to public education as well as specialist training to ensure effective knowledge mobilization; and fourth, a national strategy on prevention and response to elder abuse should be created and implemented.

The NICE Network is committed to working with all stakeholders, particularly our government, to reduce or prevent elder abuse. We are here to ensure, where appropriate, that criminal law responses, such as those proposed in Bill C-36, are available to all.

Laura Tamblyn Watts, Senior Fellow, Canadian Centre for Elder Law: Thank you for inviting the Canadian Centre for Elder Law to participate in this important discussion.

[Translation]

Thank you for this invitation to appear before the committee today.

[English]

The Canadian Centre for Elder Law is a national, non-partisan and non-political centre of excellence dedicated to law and aging issues. In short, it is all that we do.

We are focused on research and law reform. We do legislative drafting and we are part of the British Columbia Law Institute. We also sit as participants in the Uniform Law Conference of Canada and we work on law reform initiatives across the country and around the world.

We work closely at the intersection of non-profit organizations in civil society, with government and with private industry, to ensure that the laws with and for older adults are the best they can be and that Canadian citizens have the justice they require.

We are founding members of the National Initiative for the Care of the Elderly, and I have the honour of co- chairing the legal theme team with my colleague Catherine Drillis.

I want to start by incorporating the comments that the NICE Network has given into our comments. I want to make it clear that we are in agreement. I will make reference to some of the questions that I heard senators raise earlier in the day and hope to incorporate them into my comments. My comments will focus on three areas that I think have yet to be addressed.

First, it is our recommendation that the criminal justice system should create ``E'' files analogous to the domestic violence ``K'' files, which has been a fairly successful program. In adopting an ``E'' file system, we would support a vertical and horizontal strategy from criminal justice participants, including those supporting victims, police and general investigative supports, Crown counsel supports and judicial education.

The Canadian Centre for Elder Law has been involved in the education of police, victim supports and judges and we know that at each and every level we have been only able to commence the appropriate response that these systems are asking for in dealing with the great influx that they have around elder abuse questions. The establishment of ``E'' files analogous to ``K'' files.

Second, we must have competencies established in each and every one of these areas, which is a horizontal piece of education. The Canadian Centre for Elder Law believes that in many cases elder abuse may have civil and familial responses, and that is an important piece. I have heard my colleagues support that today. We agree.

Having said so, there are many cases where elder abuse is criminal and where older adults do wish to prosecute, who do wish to move forward. In those cases, we think it is important that our criminal justice system be well equipped with investigators, resources, Crown counsels and judges who feel they are able to appropriately and sensitively respond.

Third, we would support the development of elder abuse and elder homicide review teams. Our colleague Senator White was asking questions regarding where some senators have been around criminal justice investigation and response.

There have been some successful responses in San Francisco in particular where they have used elder abuse and elder homicide review teams to create a bank of forensic evidence and expertise to allow for prosecution. Time and time again the Canadian Centre for Elder Law is asked to provide supports to criminal justice workers in prosecution of these issues. That is not the work that we do. We are legal researchers and law reformers, but we hear the cries and we wish to support the notion that these types of review teams and supports, as we have had in child abuse and domestic violence, would also be appropriate in the issue of elder abuse.

In conclusion, elder abuse is a social issue, and in the ways of social movements we would analogize the domestic violence movement and the children's rights movement as being now the elder rights movement. Criminal law is not always the answer, but where there are abhorrent crimes perpetrated against older people who may also be vulnerable and targeted, there can be an appropriate response in the criminal justice system. We would suggest that Bill C-36 is an important component to a broader response in both criminal and civil society.

Thank you.

Charmaine Spencer, Adjunct Professor, Gerontology Research Centre, Simon Fraser University, as an individual: Thank you for the privilege of appearing before this honourable Senate committee. My name is Charmaine Spencer and I am a gerontologist and a lawyer.

From 2006 to 2011 I was the chair for the Canadian Network for the Prevention of Elder Abuse and Canada's national representative for the International Network.

My work over the past 20 years has focused on many diverse aspects of victimization of older adults in community settings and in long-term care by family, caregivers and strangers.

I have often worked with older adults in the abuse field directly and with agencies from across Canada from whom the older adults seek help. It is in that capacity as abuse researcher and elder law lawyer that I am here today. I bring a pan-Canadian perspective to policy as well as a practical, effect-on-the-ground perspective of this amendment to the sentencing guidelines of the Criminal Code under Bill C-36.

I will focus my submissions on the following: the current justice environment, the impetus, intent and rationale of the amendment, the interpretation and application of the sentencing guidelines and the potential for unintended consequences.

If there is time, I would like to offer Senate committee members a couple of examples to help think through the impact of potentially unintended implications of the amendment. In this area it is important to not just look at the wording of the amendment but the way it is being characterized.

Let me start by emphasizing that abuse and neglect of older adults is an extremely complex area with many different factors and reasons why it happens. It is in this area that we try to differentiate ``abuse'' from other forms of ``victimization.''

Some forms of abuse are crimes. There are currently many significant barriers for older adults in both the civil and criminal justice systems, as my colleagues before the Senate have mentioned, for example, right from the first point of contact with police or other services due to the resourcing, gathering of evidence, to whether the Crown lays charges, to the length of time before a case is heard.

For over 25 years, communities have been working to improve older adults' access to justice as part of an overall response to getting appropriate help that they want and need. In the abuse and neglect area, we have been seeking improved recognition by the police and social and health services that some forms of abuse are crimes to give people the tools and to help them have better, more appropriate supports for older victims and families.

Equal access to the law and equality before the law is a key principle here for victims. Equality before the law also applies to people being suspected of causing the harm.

Right now, very few criminal cases ever get to the point where sentencing guidelines ever become relevant, so from a policy and practice perspective, a focus on sentencing, before and beyond anything else, may simply be the tail wagging the dog.

In terms of rationale and intent, for me, it is worrisome that there is a lack of sound rationale behind the amendment. Looking at the title, the wording, the associated explanation and rhetoric, it is clear this amendment has been based on the underlying assumption that adults of a certain age, as a group, are weak, vulnerable and, for some reason, that crimes against older adults require a greater legal disapprobation.

Judges are already required to consider all relevant circumstances of the offence and the offender, so is this amendment intended simply as an aide memoire for the judges, or is it something else, such as a veiled suggestion that they have not been doing their jobs?

The amendment has been promoted as specifically being for seniors' safety and to denounce crimes against older adults. That might be a laudable goal if there was evidence that the crimes were more common — or rising — or arose in different circumstances or were more serious against people as they grow older. It might make sense if there was evidence that crimes against seniors were being treated leniently by courts compared to other groups or other similar crimes. Instead, we see the opposite.

Both General Social Surveys and police reports show that victimization against older adults is remarkably low relative to other groups, so violent victimization is 10 to 15 times higher among 15 to 24 year olds. The rate also has been stable for well over a decade.

The actual consequences in terms of the instance in general are generally not any more severe for older adults, so assaults tend not to need medical treatment.

The sentences for family violence against older adults on average tend to be lower than similar crimes by strangers. However, it is the same trend for other kinds of family violence sentencing, because family members tend to plead guilty, and actual circumstances tend to be less severe than crimes by strangers. Most mistreatment that comes to public attention tends to be through sensational types of situations, when people first learn about it, especially in cases of the media. They want to punish someone, so stiffer sentences and the perception of being tough on crime is a response that leaves people feeling that they are accomplishing something. There is also a common response among people who are new to the area; however, it is based on moral indignation, frustration in individual cases, social stereotypes and misconceptions.

Having worked in this area for over two decades, I have found that higher, stiffer, aggravated sentences are actually a low priority at a community level, and among seniors who have been victimized. Seniors are typically concerned about prevention, getting help early or getting help for a family member, whether that person has a gambling problem, a mental health problem or a need for affordable housing or stable employment.

Some already fear the possibility of their grandson going to jail and may hold out on reporting out of concern about the potential consequences.

In terms of application and interpretation, I am concerned about how this guideline may be interpreted by guiding judges to focus on being older, health and finances as opposed to any number of equally important factors often in play for some older adults, such as whether they are dependent on another person. This addition to the guideline may fetter judicial discretion: If it is not in the guideline shopping list, I will give that factor less weight. In the past ten years, we have seen more and more being added to that list.

This amendment also puts the Crown in the unfortunate position of stereotyping older adults and aging to get the sentence that the Crown feels is appropriate. Imagine the Crown always needing to adduce evidence of significant impact and weakness or poor health. It feeds into an already ageist narrative. It may produce a heavier sentence for a particular case, but it is at a heavy social cost to all older adults. I also wonder about the potential for redundancy, given that the charge laid often already differentiates between levels, types and severity of the crime.

I am concerned about the disproportionate effect it will have on different older victims in similar fact situations. If the fact that a victim is a younger senior, or healthier, it is really relevant to the sentencing for the offence. I have a concern also for defendants in certain settings, such as long-term care workers.

I can foresee major difficulties in interpreting the section in terms of the Crown differentiating among different ages, showing there is a significant impact, ascertaining what ``health,'' what ``finances,'' and what ``circumstances'' merit the argument, as well as defence arguments that are likely to arise at trial.

Whether we want to recognize or it out, this amendment to the sentencing guideline also leads Canada down an American path. In some American states, you receive longer sentences, depending on the age of the victim, for example, two more years if the person is aged 70 or older, given exactly the same fact situation for the same crime. There is no evidence that that approach has any general or specific deterrence effect.

There are also equality implications to this guideline. One of the principles in sentencing is proportionality, section 718.1, and the sentencing guideline is to treat equal cases equally. What kind of a social message are we giving if a boyfriend or stranger who assaults a 24-year-old-woman is treated less seriously, inherently differently than a boyfriend or an adult child or a stranger who assaults a 68-year-old?

A shift from looking at all relevant circumstances in a sentencing guideline to a specific focus on their age, health and finances is a side door effect that creates a special type of offence, a de facto special elder crime. In Canada, this is something that could not be done through a front door without considerable public debate. This change does little, if anything, to improve the access to justice for older adults.

In conclusion, I would like to suggest to the honourable senators that most older adults would prefer less ageism and less window dressing in the area and more substantive action at a community and justice level.

The Chair: Thank you. We will begin with Senator Jaffer.

Senator Jaffer: I very much appreciate your presentations.

I am asking all three of you this question. I am aware that in Calgary, where I worked in the courts, they have a specific family court that focuses on family violence, and in that way they are able to deal with a more holistic approach. They are aware of some of the most serial offenders and so forth.

Have you looked at having specific elder abuse courts as we have children's courts or family violence courts or drug courts?

Ms. Spencer: Manitoba has actually had a Family Violence Court for an extended period of time. They have found that very few cases —less than 1 per cent over a 10-year period — that ever came before the court related to abuse and neglect of older adults.

They have not been able to determine, in terms of the sentencing or the approach within the court, whether there has been any beneficial effect. It is an approach that has a lot of promise, but it tends to get used relatively little, perhaps by the nature of the cases involved there. That model has been in place in Manitoba for a 10- to 15-year period.

Ms. Watts: Thank you, Senator Jaffer. Ms. Drillis and I will sum up for the sake of time.

If we think about it as a rights-based approach as a social question in the way we have done in other areas, I also think it is a promising approach. I would be interested in the centre and in the NICE Network in a pilot study, such as has been done in the area. There have been initial movements in it in the United States and in Australia. It has not yet taken form. I think Canada will be well placed to engage in a pilot project in that area.

[Translation]

Senator Boisvenu: I want to begin by thanking you for sharing your expertise and knowledge in this new and complex field, as gerontology has been around for about a decade.

I want to talk about the invasion of seniors' homes. That type of crime seems to be on the rise in recent years, and it is often committed by young people to pay off their drug debt, for instance. If no violence is committed, the invasion is considered as a property crime. Therefore, the offenders are eligible for parole after serving one-sixth of their sentence, if they have no priors. They even often only serve sentences in the community, as this is not seen as a violent crime.

The invasion of seniors' homes has much bigger impact than, for instance, a television being stolen from the home of a 30- or 40-year-old couple in their absence.

Should not the invasion of seniors' homes be considered as a predatory crime rather than a property crime?

[English]

We did a study in 2006, which I can provide to senators if you wish, called The 51st State — The ``State of Denial'', which is a comparative analysis of how sentencing provisions in Canada and the United States have been used. Until 2005-2006, the section in 718(a) on age was about home invasion, so your question is extremely apropos.

We have seen increasingly that section 215, the failure to provide necessaries of life, has been used as a neglect provision. It will be interesting to see if these two things come together with the passage of the bill.

Senator, it is my instinct that, yes, we will continually see home invasions that are targeted against older adults in this area. We also see that there can be a significantly negative impact against older adults when their homes are invaded, which may not be the same. In essence, you take your victim as they come. This is a matter of substantive equality and this has been through our civil system — and in some cases with domestic violence and child abuse and Aboriginal issues — and also infused in our criminal justice system.

We know that when older adults have money taken from them and their safety is violated, if they are in a position of social vulnerability — and all older adults are not — in many circumstances it can have a life and death effect. There is evidence to suggest that if a crime of financial abuse of more than $20,000 is perpetrated against an older adult, it can have an effect on morbidity. We also know that if there is a fall pursuant to such a crime, not necessarily a violent crime but with a violent effect, it can also have a significant life or death effect.

In sum, I think it will be interesting to see how the courts interpret this. Our research would show that it might be an appropriate and impactful way for the court and Crown to consider this. If I may respond to some of the questions earlier, it does not have to be the older person — in my understanding or in the reading of our organizations — providing information in a victim impact statement. Rather, Crown counsel, substitute decision makers and the judges themselves could provide an objective and subject consideration of the impact. I do not think it has to be the older person themselves. There are circumstances that can reflect the malfeasance of the situation.

The Chair: Ms. Spencer, do you wish to respond to this issue as well?

Ms. Spencer: In terms of the General Social Survey, theft of household property was the most common nonviolent form of crime reported among older households. About 31 per cent of the crime was represented by this segment.

We need to be mindful of what crimes are being perpetrated against older adults. Do those circumstances warrant an aggravated sentencing in the circumstances, and looking at it from multiple perspectives in terms of justice to older adults and justice to people who are in some cases first time offenders as well.

[Translation]

Senator Boisvenu: Between 1999 and 2005, the number of invasions of seniors' homes rose by 38 per cent.

[English]

Senator Joyal: My question is in relation to the issue of reporting. I raised this with the previous witnesses. I would like to get your reaction to the mandatory reporting that exists in some provinces and states, as I understand from Ms. Spencer. What is your stand on that? Do you support that, or do you think it is merely window dressing that does not change the reality?

Ms. Watts: The Canadian Centre for Elder Law has done a substantial piece of research for about a decade on the question of mandatory and voluntary reporting. I had the benefit of hearing the responses from the previous experts.

I would offer that each jurisdiction in Canada has a different approach. Regionality is important. I think it is important to say that there are different cultural norms in different locations. In particular, in the North we may have different Aboriginal organizations in communities for whom mandatory reporting would have a different effect. I call that out as a regional question as well.

There is no evidence that mandatory reporting makes it better; none — not in Canada, not in the United States, not internationally. What we do have is some evidence to say that it can actually hinder. That does not mean so to say that we should not report and that in certain professions, organizations or circumstances mandatory reporting is not appropriate.

In particular, I had the benefit of hearing Ms. Lithwick speak about the question of in care and incapacity. What I would offer is that across the country there is certainly difference around that issue, but there is the greatest commonality around reporting for elder abuse for persons who have cognitive impairment or who may be in long-term care.

It is extremely confusing for the average Canadian to understand the Canadian approach, but they mostly live in their own jurisdictions. One hopes that they are best able to understand their own jurisdiction.

In brief, there is no evidence that mandatory reporting makes it better. In certain positions of power, control and trust — for example, for people who have cognitive impairment or long-term care — there is much greater consensus across the country that that is appropriate.

Third, it is difficult for the average Canadian to understand each jurisdiction and that knowledge mobilization, such as those tools created by the National Initiative for the Care of the Elderly, has made great leaps in educating around that issue.

Ms. Spencer: I would like to reinforce the statements made by Ms. Watts in this regard. Last year, we comprehensively studied compulsory reporting in the context of older adults and the underlying rationale for it in Canada and the United States as well as looking at its use in the area of child abuse. As Ms. Watts has pointed out, there is absolutely no evidence that it leads to better outcomes or a better situation. We try to focus on ensuring that there is a mandatory response when an older or other person voluntarily reports, that is, that people act on what is being told to them and look into the situation. Those are the circumstances that we think are more important in this area.

Senator McIntyre: Thank you for your presentations. As all three of you are lawyers, you should not have any problem answering my question.

I note that the term ``elder abuse'' does not appear in the text of Bill C-36 and it is not defined in the Criminal Code. In your opinion should the term ``elder abuse'' appear in the amended legislation and should it be defined in the Criminal Code?

Ms. Watts: We have had some robust discussion within our organizations on this question. It is not an easy one to answer.

It is the opinion of the Canadian Centre for Elder Law and, I am pleased to say, the National Initiative for the Care of the Elderly that the concern around elder abuse disappearing from the section is real. We do want to support it as a provision that our criminal justice system can use appropriately in some circumstances for cases where there is a combination of age and some other type of social vulnerability.

However, we do agree that it is elegantly drafted to avoid some of the challenges associated with a particular age number. I would offer that in different organizations and in different regions an older adult may be defined differently. As an example, the notes speak about older Aboriginal adults. I would offer as well that many organizations consider homeless people to be older when they are 45. Adults who have intellectual disabilities or are genetically challenged may have a different life course span as well. For instance, people with Down's syndrome may genetically age more rapidly. As a result, a 55-year-old person with Down's syndrome may have a different life course.

It is important that we have a dedicated system in our criminal justice system in addition to police, Crown counsel and judges, comprised of victim support services and social workers, who understand that competencies are required, as we have for domestic violence, intimate partner violence, child abuse and Aboriginal issues.

The name is not as important as the government's and the criminal justice system's commitment to supporting forensic evidence gathering and the opportunity to prosecute these cases when appropriate.

In short, I think the drafting is elegant. I do hope, however, that the notion of elder abuse is not lost.

Ms. Spencer: If this is intended as an aide-mémoire for judges of the various circumstances, there is no need to make reference to elder abuse or anything along that line.

When we talk about abuse, we are talking about something very specific. We are talking about mistreatment in the context of relationships, while this provision is potentially talking about victimization or any kind of crime affecting an older adult. If you actually use the term ``elder abuse,'' are you limiting its provision in terms of the aggravating sentences specifically to those familial types of relationships? I do not think that is the intention of the sentencing guideline, so I would offer a caution there.

Next, although in some jurisdictions in Canada the use of the term ``elder abuse'' has gained a bit prominence over the last few years, it has not been the language in the field. Abuse and neglect of older adults, of older women and older men, has been the preferred terms. When the public talk about elder abuse, they think of elderly, by which they mean people who are 75 and older. They are not thinking of people who are in their sixties or late fifties. All of those different kinds of interpretations muddy the waters quite a bit in this area.

Senator Dagenais: We have a problem with crimes against older people. I understand the work to prevention this and to support these people, but here we work on the legal aspect. You said that older people are not preoccupied by sentences given to criminals. Can you explain to me your position on this?

Ms. Spencer: Certainly. Older adults who are victims of crimes perpetrated by family members will quite often have concern for their family members. They want the harm to stop. They want the financial abuse and the assault to stop. They want to be safe. At the same time, however, they frequently would like to be able to maintain a relationship with the offender. They would like to seek help for their son, grandson or niece for their underlying problem, which may be a gambling problem or a mental health problem that is not being adequately addressed at the community level, resulting in that person living with them as they cannot afford their own housing. They may be looking for help for a person who has a substance abuse problem. Those are the concerns. They want the problem fixed but they do not necessarily want their son threatened or put into jail. That is a significant consideration.

A variety of mechanisms in the area of mediation and through alternatives within the justice system are being considered to address the issues legally before things become violent or excessive harm is done. We need to be thoughtful in our approaches to those and to give them proper consideration.

Senator Joyal: Ms. Drillis, on page 2 of your brief you make three specific comments. I would like to come back to the third one. You state that in relation to this bill you proposed that the definition of the term ``vulnerable'' be defined in the context of the British Columbia strategy document.

I do not see how we would introduce the word ``vulnerable'' or the term ``vulnerable'' in the context of this bill, unless you are talking about a general approach of a policy.

Ms. Drillis: Exactly.

Senator Joyal: As I was trying to determine the scope of this bill, I could not see at first blush how we could introduce the concept of vulnerability in this bill precisely the way it is worded.

Ms. Drillis: That is true.

Ms. Watts: If I could build on that piece, my understanding is that the drafting of this particular section speaks to the notion of social vulnerability. Professor Spencer has been involved in this work, as well as a number of leaders across the country, of exploring what social vulnerability means. I believe the nurses also spoke about the notion of social vulnerability, that people themselves by age or by physical challenge are not necessarily socially vulnerable. When we interpret the section around health, economics, age, et cetera, it should be within a context of understanding that all people can be vulnerable because of economics, because of health, because of poverty, because of social circumstances, because of violence.

It is a reading, if you will, for judges and for Crown counsel and for the criminal justice system to make sure that they do not label older people socially vulnerable but that the context of the health and social situation is how it is interpreted.

Senator Joyal: Yes. That is the way I understood the philosophy behind the bill. The bill addresses itself to persons who are vulnerable because of their age and because of personal circumstances, quoting health and financial situation, for instance, but there might be other factors taken into consideration.

Ms. Watts: I would also offer to you that my understanding is this is language that is built upon by the World Health Organization's indicators of social vulnerability. That is another framework that can be read into this interpretation.

Senator Joyal: Do you care to comment, Ms. Spencer, on the concept of vulnerability in law?

Ms. Spencer: No, I think that Ms. Watts has covered the points nicely. Thank you.

The Chair: Thank you, witnesses. We very much appreciate you contributing to the committee's deliberations and appreciate you being here.

(The committee adjourned.)

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