Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 28 - Evidence for December 6, 2012


OTTAWA, Thursday, December 6, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which were 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 10:30 a.m. to give consideration to the bills.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We will start our meeting today with clause-by-clause consideration of Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. Bill S-12 amends the Statutory Instruments Act to provide for the express power to incorporate by reference in regulations.

Following that, we will resume consideration of Bill C-36, An Act to amend the Criminal Code (elder abuse). This bill, according to its summary, specifies that any evidence that an offence has had significant impact on a victim considering their age and other personal circumstances should be an aggravating factor taken into account during sentencing for a crime.

As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees.''

I would note that we have Justice Canada officials present in the room, should members have any questions. If not, let us proceed.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 2 carry?

Senator Fraser: Chair, I have an amendment to propose. It is presented as one single amendment, but if colleagues preferred, it could be split. The first portion of it begins here. I would move:

THAT Bill S-12 be amended in clause 2,

(a) on page 1, by adding after line 13, the following:

"(1.1) In this section, "document'' means any federal or provincial legislation.'';

(b) by replacing lines 18 to 2 on page 1, and lines 1 to 7 on page 2, with the following:

"be incorporated only if it is a regulation''; and

(c) on page 4, by adding after line 7 the following:

"18.8 The Governor in Council shall, by order, publish guidelines establishing standards in relation to the following:

(a) which documents may be considered eligible for incorporation by reference in a regulation;

(b) which documents should be precluded from being incorporated by reference;

(c) how the content of incorporated documents is to be made available in both official languages;

(d) how incorporated documents are to be made accessible to the public; and

(e) how relevant information will be communicated to interested groups and the general public.''

Do you wish me to read the French version into the record, chair?

The Chair: Yes.

[Translation]

Senator Fraser: The amendment in French is as follows. I propose:

QUE le projet de loi S-12 soit modifié à l'article 2:

a) à la page 1, par adjonction, après la ligne 13, de ce qui suit:

« (1.1) Dans le présent article, « document » s'entend de tout texte législatif fédéral ou provincial. »;

b) par substitution, à la page 1, aux lignes 19 à 23, et à la page 2, aux lignes 1 à 8, de ce qui suit:

« le document où la partie en cause est un règlement. »;

c) à la page 4, par adjonction, après la ligne 7, de ce qui suit:

« 18.8. Le gouverneur en conseil publie, par décret, des lignes directrices établissant des normes concernant:

a) les documents admissibles à l'incorporation par renvoi dans les règlements;

b) les documents à exclure de l'incorporation par renvoi;

c) la manière de rendre le contenu des documents incorporés par renvoi accessible dans les deux langues officielles;

d) les moyens d'assurer l'accès public aux documents incorporés par renvoi;

e) la manière de communiquer les renseignements pertinents aux groupes intéressés et au grand public. ».

[English]

Shall I explain my proposal, chair?

The Chair: Yes. The floor is yours.

Senator Fraser: Basically, subsections (a) and (b) are one part of this proposed amendment and (c) is a second. I will address them separately, but they are both in response to either evidence we heard or to the proposals from the Standing Joint Committee for the Scrutiny of Regulations.

Subsections (a) and (b), particularly (a), are designed to address the joint committee's concern that it is worrisome to enable incorporation by reference of foreign material without some Canadian supervision. That supervision is now provided by the Standards Council of Canada, which testified before us last week.

What this would do is say that you can incorporate by reference, either static or ambulatory, anything that comes from a Canadian government. Our advice from the law clerk is that the word "legislation'' in (a), "document means any federal or provincial legislation,'' would include "regulation.''

For greater certainty, if colleagues wished, we could amend this proposed amendment to say "means any federal or provincial legislation or regulation'' so that it would be crystal clear that we were talking about the range of material that is put out by federal or provincial legislation or regulation; in other words, from sources that are readily accessible or comparatively readily accessible to Canadians.

Subsection (c), which is the second part of this proposed amendment, responds to the express desire by more than one witness — the consumer health products people, the standards council and I think someone else — that before this bill takes effect, everybody should understand how it will be implemented. There was a proposal that this be done through an amendment to the actual legislation.

Another view was that guidelines would do the job, and I believe that guidelines would in fact be preferable because, over time, if they needed to be adjusted, it is easier to adjust a guideline than to go back and reopen the legislation. The elements proposed here would be ''(a) which documents may be considered eligible.'' That is in reference to the consumer health products concern that, for example, guidance documents might become part of a regulation. They were very worried that that would be the case.

"Which documents should be precluded'' would be in response to the same concern. "How the content of incorporated documents is to be made available in both official languages,'' you will recall that the council told us that one of the things they do when they are checking to see if regulation of foreign material is suitable for incorporation in Canadian regulation is they check for the availability in both official languages.

"How incorporated documents are to be made accessible to the public,'' all witnesses agreed that accessibility was very important. There was a great deal of discussion about how accessibility would be achieved. This would require the government to make public some guidelines about how to make documents accessible.

"How relevant information will be communicated to interested groups and the general public,'' which is an elaboration on (d).

I think I have done my thing.

The Chair: Does anyone else wish to participate in this discussion?

Senator Baker: I was wondering, Mr. Chairman, the officials are here in the room, and of course I would not want the officials to express an opinion because they have not seen this amendment before now. If there is something that is plain on the face of the amendment as it first appears to any of the officials in the room that would not be desirable to put into law, if one of them could signify to the chair that that is the case. As I say, I am not asking for their opinion, because they have not seen this before, but there may be something there that would stand out.

The Chair: This is Philippe Hallée, who was here yesterday as well. He is Deputy Chief Legislative Counsel at the Department of Justice Canada.

Philippe Hallée, Deputy Chief Legislative Counsel, Department of Justice Canada: I was just reading through the motion. I am sorry if I am not exactly on point. In terms of the first amendment, the addition of section (1.1), the way I read it, is to limit the notion of "document'' to only federal and provincial legislation, which would essentially deny the capacity of regulators to incorporate by reference any standard, anything but legislation, but including particularly the standards that I think you have heard about at length in the testimony of Mr. Walter, I believe. This is a crucial element to be incorporated by reference in most modern legislation nowadays.

Senator Baker: You are saying that using the word "document'' by defining it as meaning "any federal or provincial legislation,'' you are saying this would then bar everything else — is this your point — that could include regulations, the standards?

Mr. Hallée: To be precise, it would only include the federal and provincial legislation. That would be the effect of it, but nothing else.

Senator Baker: What else?

Mr. Hallée: All the standards that typically are being incorporated by reference currently in most existing legislation.

Senator Baker: Normally you take a law and the regulations become the law under it. It is dealt with as a part of the law. Are you saying that the standards adopted under the regulations are not a part of the law?

Mr. Hallée: The standards, when they are incorporated by reference, by the use of the technique, they do become part of the regulatory scheme. They become part of the law. You are correct, senator.

This provision would actually prevent the use of the technique, without express authority, of course, to incorporate by reference such standards. Therefore they could not be part of the law at all.

Senator Baker: You are saying the word "legislation'' is the restrictive word?

Mr. Hallée: That is right. By referring only to federal or provincial legislation, my understanding is that would be the effect of this.

Senator Fraser: I had already noted that if colleagues wished I would be perfectly happy to expand that reference to say, "any federal or provincial legislation,'' to include "regulation'' explicitly.

The law clerk's view is it is not necessary, but I would agree that for clarity it would be perfectly acceptable. If colleagues wished, we could also include the word "standard.'' The goal of this is to limit to Canadian public institutions, if you will, the source of material that can automatically be incorporated by reference without any further reference to anyone else. The goal is not to prevent the system from working effectively and efficiently.

The Chair: Are you suggesting you want to amend your amendment?

Senator Fraser: If colleagues accept, we could amend it right now, I could move a sub-amendment to my own amendment, which would be to amend (1.1) to read:

In this section means any federal or provincial legislation, regulation or standard.

The Chair: Would that address the concern you have raised?

Mr. Hallée: Not exactly. I think the breadth of documents and indices and rates, and all you have heard in the testimony over the last couple of weeks, show the need for flexibility and comprehensiveness in terms of the documents and resource material that needs to be incorporated by reference generally. As a matter of fact, they are currently being incorporated by reference in federal regulations as we speak.

If we were to limit that, that could potentially put at risk also the incorporation by reference designed presently under the current regulations. I think it would be very limiting in terms of scope.

The Chair: It has been pointed out to me that example 18 that was given to us yesterday dealing with the Canada Consumer Product Safety Act, dealing with textile test methods, flame resistance, 45-degree angle test, that would be excluded under even your sub-amendment.

Senator Fraser: I did not get 18 examples, chair.

The Chair: They were circulated yesterday.

Senator Fraser: I got a bunch of examples. Would this be on page 7?

The Chair: It is example 1, cited as 18, but it is example 1 on page 1.

Senator Baker: If this amendment is defeated here — I hope it is not, but if it is — then this legislation goes to the other chamber. It would be nice to give the other chamber direction if they wish to move the same amendment.

Can the witness think of any word that can be used instead of "legislation'' which would accomplish the desired effects of the proposed amendment as outlined by Senator Fraser? Can the witness think of any one word or words? Of course, as I said before, he does not have to give his opinion if he does not wish to do so.

Mr. Hallée: I am not clear on what the goal is. I am reading the words here in the motion for amendment and I can only interpret what I have here. If the goal is to limit to Canadian legislation or to include regulation, that is a choice this committee will have to debate and decide.

Senator Baker: Is it a problem to limit it to Canadian?

Mr. Hallée: That would be limiting in terms of the use of the technique as it exists currently in the federal legislation and regulations. It would put at risk, I fear, much of the use of that technique as it has been used so far. It is really very limiting in comparison to what we understand to be the common law on this in terms of capacity to use the drafting technique in support of the exercise of regulation-making powers.

Currently the understanding generally is that the power to make regulations includes the power to incorporate by reference on external documents on an ambulatory basis.

As you have heard, through the testimony and this committee, senator, this is the understanding of the government and how it has been applied so far. This is essentially what the case law seems to suggest as well. There is not a lot of case law, and this is where there is disagreement, perhaps, with the standing joint committee on the interpretation of the scope of what is possible. This legislation is meant to confirm what we conceive as the state of the law on this.

If we were to proceed with this amendment, I think we would be fairly limited in the capacity to incorporate by reference and use the technique in the future.

Senator Baker: I think the word "legislation'' covers everything, but that is contrary to what the witness said. We could change it.

Senator Fraser: I repeat, the object is not to paralyze the system. The object is to make the system work properly within Canada.

"Any federal or provincial,'' I have already suggested "regulation'' or "standard.'' We could even include a rate or index that would allow for the CPI or the bank rate to be included.

The Chair: I think it is already protected under your amendment. Perhaps our analysts could comment with respect to the amendment.

Lyne Casavant, Analyst, Library of Parliament: The amendment does not affect proposed subsection 18.1(3) as it is written right now. The paragraph starts with "The power to make a regulation also includes the power to incorporate by reference an index, rate or number. . . .'' The rest of the paragraph does not seem to be affected by the amendment.

Senator Fraser: That is true.

The Chair: Do you want to withdraw that subamendment, based on the input?

Senator Fraser: I think a standard is not necessarily an index rate or number. I do not mind including "standards'' or for greater certainty "regulations.'' It may not be necessary, but I do not think there is anything wrong with doing that and it makes crystal clear what we are trying to do. Ms. Casavant is right, of course: Subsection (3) is not affected by this.

Senator Frum: I understand what you are trying to achieve here, which is to limit it to Canadian references. I think we did hear testimony that is not at all the intention of the bill and that there needs to be an openness and receptivity to international standards. Sometimes this is about ensuring we are in keeping with international standards.

I think the whole amendment is guided by a principle that is inappropriate.

The Chair: Is there any further discussion on this?

Mr. Hallée: I would like to add some other examples of documents that would not be incorporated by reference. My colleague was providing me with some very technical types of documents that we find in many incorporated documents currently. Specifications, test methods, maps — sometimes — and other technical documents that are really in support of existing regulations. They fall within the scope of the regulation-making power, because, as you heard, this is one very strong limitation on the scope of what can be incorporated by reference.

However, all these elements, as you can appreciate, are very technical for the most part, so they are not like redoing or granting any new power to legislate in a new area at all. They are a mere detailed source that is essentially in support of the regulation-making power.

The exercise has been done in developing the legislation to look at the variety of sources currently being incorporated by reference and also with a view to future developments on what could be useful to incorporate by reference, again with the same idea of technical support to the regulation-making power. This is why the choice of document, broadly defined, has been selected in this case; namely, so as to not overlay or unduly limit the scope of application of what is possible.

Senator Baker: If I am to read you correctly, if the amendment were changed to "In this section, 'document' includes any federal or provincial document,'' or if it read in the alternative, "In this section, 'document' means any federal or provincial document,'' your opinion is that the definition of "document'' would be unduly limiting — to not include certain things that would be encompassed without the inclusion of this definition of "document''?

Mr. Hallée: Without being too technical about the drafting principle, senator, I would say that when we use "means'' usually it is fairly limiting. When we use "includes'' it basically illustrates but is not limiting, necessarily.

I would add, though, that if we were to follow that and provide, as you are suggesting, a definition of "document'' to say "includes,'' it is a little tautological, because I think most people would understand —

Senator Baker: It is pretty common use; it is a pretty common phrase.

Mr. Hallée: — that a document suddenly includes legislation. It does not seem to be necessary at all to add this precision to the legislation. It is certainly fairly understood that legislation is a document.

Senator Fraser: Not to include some version of this formula retains the wide-open ability to incorporate by reference anything from any country that any regulator or civil service thinks might be convenient. In my view and in the view of the joint committee, that is going too far.

The summary of the bill does not say that it is designed to provide for the express power to incorporate by reference, et cetera; it does not say "the whole world.'' It is silent on the actual breadth of this.

I believe that the amendment is fully compatible with the spirit of the bill and with what our parliamentary colleagues who have studied this matter in far greater depth than we have believe would be appropriate. In fact, my amendment as subamended would be looser than what the joint committee recommends.

I take the point that you want the system to be workable. I do, however, strongly suggest that we should be allowing this very broad power only for Canadian material and that foreign material, which as we know is already largely used in our regulations, should be incorporated only after supervision, scrutiny, by the Standards Council and only with authorization. It should not just be automatic.

The Chair: Thank you.

We will deal with the subamendment first. Do you want to put that into the record once more, senator?

Senator Fraser: The subamendment would be:

In this section, "document'' means any federal or provincial legislation, regulation or standard.

The Chair: Is it your pleasure, honourable senators, to adopt the subamendment? All those in favour of the subamendment?

Some Hon. Senators: Yes.

The Chair: Opposed?

Some Hon. Senators: Yes.

The Chair: I am not sure we will have to do a roll call on this. We will proceed with a roll call. All in favour? Raise your hands if you are in favour, please.

Shaila Anwar, Clerk of the Committee: The Honourable Senator Runciman.

Senator Runciman: Opposed.

Ms. Anwar: The Honourable Senator Baker, P.C.

Senator Baker: Agreed.

Ms. Anwar: The Honourable Senator Boisvenu.

Senator Boisvenu: No.

Ms. Anwar: The Honourable Senator Cowan.

Senator Cowan: Agreed.

Ms. Anwar: The Honourable Senator Dagenais.

Senator Dagenais: No.

Ms. Anwar: The Honourable Senator Fraser.

Senator Fraser: Agreed.

Ms. Anwar: The Honourable Senator Frum.

Senator Frum: No.

Ms. Anwar: The Honourable Senator Jaffer.

Senator Jaffer: Yes.

Ms. Anwar: The Honourable Senator Joyal, P.C.

Senator Joyal: Agreed.

Ms. Anwar: The Honourable Senator McIntyre.

Senator McIntyre: No.

Ms. Anwar: The Honourable Senator Ngo.

Senator Ngo: No.

Ms. Anwar: The Honourable Senator White.

Senator White: No.

Ms. Anwar: Yeas, five; nays, seven.

The Chair: The motion fails; the subamendment is defeated, and we will move on to the amendment.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: In agreement? I would like to see hands on this.

Opposed?

The amendment is defeated. We return to the clause itself. Shall clause 2 carry?

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 3 carry?

Hon. Senators: Agreed.

The Chair: Carried. Shall clause 4 carry? I am assuming clause 4 carries.

Hon. Senators: Agreed.

The Chair: Carried. Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Carried. Shall the title carry?

Hon. Senators: Agreed.

The Chair: Carried. Shall the bill carry?

Some Hon. Senators: On division.

The Chair: Carried, on division.

Is it agreed that I report this bill to the Senate? I am not sure if I should ask for observations at this stage.

Senator Fraser: I would like to discuss observations, chair.

The Chair: Is there an interest in appending observations?

Senator Fraser: Are we to go in camera to discuss observations?

The Chair: There is no significant resistance, so we will move in camera. Anyone not associated with the committee should depart at this point.

Senator Baker: It will be just for a few moments.

The Chair: We need a motion for staff to stay.

Senator Fraser: So moved.

The Chair: All in favour?

Hon. Senators: Agreed.

The Chair: Carried.

(The committee continued in camera at 11:02 a.m.)

——————————-

(The committee continued in public at 11:06 a.m.)

The Chair: Is it agreed that I report this bill to the Senate with observations?

Hon. Senators: Agreed.

The Chair: For our second hour, we will continue with witnesses on Bill C-36.

Appearing today representing the Canadian Council of Criminal Defence Lawyers, is William Trudell, Chair; from the Ottawa Police Service, Maria Neill, Detective, Elder Abuse Unit; appearing by video conference from New Brunswick and on behalf of the Canadian Association of Social Workers is Morel Caissie, President; finally from the Registered Nurses Association of Ontario is Doris Grinspun, Chief Executive Officer. Welcome all. I am not sure who wants to lead off.

Doris Grinspun, Chief Executive Officer, Registered Nurses' Association of Ontario: Thank you. I am here today representing the Registered Nurses' Association of Ontario, often known as RNAO. I am a registered nurse and RNAO's CEO. RNAO is the professional association representing registered nurses wherever they practice in Ontario. Since 1925, the association has advocated for healthy public policy, promoted excellence in nursing practice, increased nurses' contribution to shaping the health care system and influenced decisions that affect nurses and the public we serve.

Let me begin by acknowledging Josephine Santos, RNAO Program Manager for the Long-Term Care Best Practices Initiative, who could not be here with us today due to a back injury. Ms. Santos is the one truly leading our association's work on the prevention of elder abuse.

Elder abuse has always been a priority and we appreciate the opportunity to provide feedback to the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-36. Nurses know in the core of our being that no person ever deserves to be abused or neglected. All seniors should be able to live out their final days and enjoy a sense of respect, dignity, safety and security. As individuals and as a society, we must deliver on our duty to protect and fully eliminate elder abuse.

RNAO fully supports the amendment of the Criminal Code to include age and other personal circumstances, such as health and financial situation. In itself, however, this amendment will not produce the changes needed to end elder abuse and neglect.

Given that many instances of elder abuse and neglect go unreported, RNAO urges a multi-facetted approach that also includes effective prevention of the root causes that make people more vulnerable to elder abuse and neglect, such as poverty, discrimination, social isolation and lack of affordable housing. RNAO's recommendations on addressing these social determinants of health are available in more detail in our formal written submission to this committee.

From November 2011 until April 2012, RNAO participated in Ontario's Long-Term Care Task Force on Resident Care and Safety. This task force was created in response to media reports of incidents of abuse and neglect, some of which were unreported, specifically in long-term care facilities. In 2011 alone, there were more than 3,200 incidents of abuse and neglect reported to the Ontario Ministry of Health and Long-Term Care. That works out to about 3.5 older persons per 100 nursing home beds.

We learned through surveys, submissions and a review of the evidence that the top factors leading to abuse and neglect in this sector include staffing issues; for example, not enough staff, heavy workloads, inadequate training and skills. Factors such as dementia, mental health and addictions linked with responsive behaviours such as being aggressive or violent was another factor. A resident may sometimes be a victim of abuse and represent a danger to themselves, other residents or staff. In fact, about half of the incidents reported in 2011 were resident-to-resident abuse. This means that residents with specialized needs must be better supported to ensure safety for themselves and all others in that environment. Areas that need to be addressed for improved safety include funding for specialized facilities, dedicated specialized units with long-term care homes, appropriate physical plant conditions, specialized programs and appropriately trained and knowledgeable staff in sufficient numbers to care for vulnerable residents with high needs.

I would suggest the same type of education is required in the community for the public, families and older persons themselves.

In May 2012, the Long-Term Care Task Force on Resident Care and Safety released its report along with a list of 18 actions to improve care and safety that are not only relevant to Ontario, but of value from coast to coast to coast. In addition to supporting these action items, RNAO recently submitted feedback to our provincial government to help inform Ontario's Seniors Care Strategy. RNAO has brought along copies of this submission for the standing committee because it includes our evidence-based recommendations on how to improve seniors' health, health care and safety across all sectors, including minimum standards of nursing care in long-term care.

With funding from the federal government, RNAO and the Canadian Nurses' Association launched the Prevention of Elder Abuse Centres of Excellence, or PEACE, in 2010 in 10 long-term care homes across the country. Positive outcomes of the PEACE initiative included behavioral changes and increased confidence of staff in responding to instances of abuse. Building on the success of this project, RNAO again, thanks to federal funding, is now developing a best practice guideline that will focus on addressing awareness, prevention, identification and strategies for intervention when instances of abuse or neglect are known or suspected. This guideline will complement other evidence-based RNAO clinical best practice guidelines such as client-centred care, screening and caregiver strategies for older adults with delirium, dementia and depression, promoting safety, alternative approaches to the use of restraints and preventing and managing violence in the workplace.

All of these evidence-based guidelines, as well as implementation resources, are available to be downloaded from the RNAO website without charge, along with information on the long-term care best practice initiatives. We brought copies for you to browse, if you wish. This is part of the program on clinical best practice guidelines that the RNAO is internationally known for and is specifically targeted to the older care population.

William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Thank you chair and members of the committee. On behalf of the Canadian Council of Criminal Defence Lawyers, it is an honour to be here again. I noted as I was flying in that the Canadian Council turned 20 years old in September, and we have been invited and appeared before this committee over 40 times since 2001. We are grateful for the opportunity to continue to assist.

We respect the role of parliamentarians to pass legislation that they feel is important in response to a need. As a council, we express some concerns about how big the Criminal Code is getting. When I first started coming here I could put it in my back pocket. Now I think I need to put it in the back of the van. However, as you reflect and decide what needs to go in the Criminal Code, what changes are to be made, that is your decision. We are only here to help if we can.

First, we are very grateful that government has reached out to bring to the public's attention the very important issue of elder abuse and vulnerable elders. We think that is important. We think that it would have been wrong, with respect — a strong word, but wrong — to introduce a separate section of the Criminal Code or even to suggest that a mandatory minimum with this type of offence would have affected or been in any way helpful. Adding it to section 718 of the code in relation to the principles of sentencing is, in our respectful submission, acceptable, you having decided that this bill is necessary to pass. I would respectfully submit that there might be some suggestion that it is already covered in the Criminal Code. The protection of vulnerable persons is already something that is on the radar of the courts. In any event, it is an important statement being made and these are important considerations. I echo the comments of my friend that just addressing it in the Criminal Code is only the tip of the iceberg.

In looking at the bill itself, I would offer this on behalf of the CCCDL. We think that it might be — and we offer this for your consideration — somewhat vague because it is not the age you want to address in terms of aggravating circumstances; it is the vulnerability of that person who is an elder.

For instance, the bill says "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 would respectfully submit that you consider at least this, "had a significant impact on the victim considering their age-related vulnerability and other personal circumstances, including their health and financial situation.'' That is what you want to protect, from all the submissions, the papers, the background, the comments of the minister and the comments of representatives from CARP, which started this; the vulnerability of elders, not the fact that they are elders.

We respectfully submit that if you deem this bill should be passed, you look at tightening up the words so that the guidance that the courts will get is clear, succinct and not vague. In talking to my colleagues across the country, this was the main feature of the bill that we were concerned about, that it is the vulnerability of elders, not the elder who might be in a certain circumstance that you need to address.

Having said that as my opening statement, I am now happy to try to answer any questions that you might have and not take any further time up.

The Chair: Thank you. Ms. Neill, did you have some comments?

Maria Neill, Detective, Elder Abuse Unit, Ottawa Police Service: I very much welcome this opportunity to address the committee. I am a detective constable with the Ottawa Police Service and I work in a specialist unit that deals with nothing but crimes that have allegedly been committed against vulnerable adults. That includes seniors, anyone of the age of 18 and over who is vulnerable by reason of some form of disability, whether it is physical or they have a learning need; anything that makes them vulnerable. These are incredibly long and complex investigations. It is very difficult for me to come here and tell you our exact numbers because the definition between agencies differs so much from what elder abuse actually is. For example, with age, one jurisdiction may say 60; another may say 65. I have noted in the summary of Bill C-36 that it can even be considered 55 with some Aboriginal groups who may have additional needs.

It is important to remember that not all elder abuse is criminal. A certain amount of what is reported to us in Ottawa is considered wrong, despicable, and some would certainly describe it as criminal when they call us, but when you actually look at what the Criminal Code has to offer us, we are not able to lay charges because of what we are actually seeing.

Additionally, for many cases in the past that have been determined to be civil or family matters, when we revisit them and look at them now and have similar cases coming through, there are clear grounds for us to lay charges of theft by power of attorney, for example, and criminal breach of trust. Cases are now going before the courts for decisions on matters which in the past would have been seen as private family matters.

The abuse is wide-ranging. We have heard already from Ms. Grinspun within the nursing environment. The abuse we investigate includes physical, sexual, emotional, psychological and financial cases. The solution is not to criminalize everything. There is a real need for a social welfare and multi-agency approach.

We look at teams ideally consisting of police, mental health, health, social services, housing, probation all coming together, with information exchange protocols in place, to allow us to make a swift, multi-agency approach to any of the things coming our way.

We have to remember that our suspects and our charged accused people sometimes have addiction issues, including gambling, drugs and alcohol, and our victims are generally unable to recoup their financial losses in the case of financial abuse because the money is gone and they are at the end of their working lives and all their money has been taken. In the majority of cases it is a trusted family member or friends who have committed this huge breach of trust.

In some of the cases, a lot of our victims say that they do not want criminal charges; they are looking for another way for the abuse to end. They do not want criminal charges laid as they fear that their child, in some cases — and we could be talking about an adult of 50 or 60 who is the child — might go to prison. They do not want their child to go to prison and they want them to get help with their addictions or sometimes the mental health issues that have prompted the abuse in the first place.

I agree with Mr. Trudell that the abuse is more than age related. It is about vulnerable adults. Unfortunately, with the demographics the way they are, we have a large amount of elders coming through who are now reporting abuse, but predominantly the reporting is coming in as a third party. They are still too frightened to come forward for a variety of reasons.

This bill will not end elder abuse. Will it act as a deterrent? We will only know if the bill is passed to its full, but I think it should be expanded to include the vulnerability part more than specifically an age so that we can truly support and protect the most vulnerable members in our communities. Thank you.

The Chair: Thank you. Mr. Caissie, did you have any comments?

[Translation]

Morel Caissie, President, Canadian Association of Social Workers: Thank you for inviting me to appear before your committee. I will first make my presentation on behalf of the Canadian Association of Social Workers.

The association is made up of provincial and territorial associations. I speak to you today also as a social worker, who worked with clients for 40 years in public agencies that were mandated to protect children and adults.

Bill C-36 is of particular interest to social workers because of its implication for older persons who are victims of abuse and criminal neglect. Social workers are often the first responders and advocates for abuse victims, both adults and children, because of the mandate conferred upon them by the provincial and territorial authorities, in accordance with the legislation that applies in the respective jurisdictions.

Most legislation that applies to the health, social service and guardianship of children and adults comes under provincial or territorial responsibility.

I am not currently aware of any specific legislation that identifies the abuse and neglect of older persons as an offence. In fact, there are actions that constitute crimes, regardless of the victim's age, including physical or sexual assault, forcible confinement, theft, fraud, counterfeiting, extortion and sometimes neglect that endangers the other person's safety.

We understood that Bill C-36 amends the Criminal Code by adding certain aggravating factors that a judge must take into account during sentencing when proof of those aggravating factors has been established.

We also understood that sentences would be harsher based on evidence that the offence had a significant impact on the victim, considering the victim's age, health and financial situation, or other personal circumstances. We find the wording of the proposed clause interesting, given that in the case of elder abuse, a combination of these factors is often at play. The victim's age is already considered an aggravating factor for victims younger than 18 years of age, which is really because of their vulnerability. Without concluding that all older persons are vulnerable, we know that a good number of them become vulnerable because of their health, financial situation or other personal circumstances.

Unfortunately, based on my experience, and I know there are studies to back this up, a very low percentage of these incidents of abuse or severe neglect are reported to police and, of that number, few of them result in criminal prosecution or a conviction. One of the reasons why a lot of older persons hesitate to report abuse or neglect is that they think the social agencies or the police will not really be able to help them and that there is nothing to be done.

This bill sends the message that elder abuse will be severely punished. Our hope is that the message could be used to encourage victims, their families and all Canadians to condemn these acts of abuse. We can also hope that the severity of the consequences will have a deterrent effect on people who commit these acts of neglect and abuse.

Another aspect I would like to talk about, which is related to Bill C-36 and criminal prosecution, is criminal record checks for people who apply for jobs in health care facilities or who become home caregivers. In my province—in most jurisdictions, to my knowledge—anyone found guilty of a violent offence or anyone who might endanger a client cannot obtain employment in those facilities. Procedures and verification mechanisms are in place to ensure that these people do not become caregivers to vulnerable individuals. The sentence is an important consideration in checking these criminal records.

Basically, we—social workers—support Bill C-36, but we will no doubt all agree that the bill itself will not eliminate elder abuse or neglect and that there is more to be done.

We hope that more people will trust the legal system and that more abusers will be brought to justice. However, it is important to focus on why too few cases of elder abuse and neglect are reported to the authorities. Quite simply, the victims are afraid that their situation will get worse. The victims are afraid of losing the person who is providing care. Victims do not want to accuse their family—a good number of cases involve close relatives who abuse family members—for fear of the consequences and, even more so, the shame they feel. Victims even think they sometimes deserve the mistreatment because they are putting them out and demanding too much attention. Victims are often afraid of being placed in a nursing home or other facility. Victims and even people who suspect there is abuse going on think that proof must be provided to file a complaint.

Social workers who work with these victims of abuse and neglect have long been asking for investments in abuse prevention. Criminal prosecution and protective intervention are remedies of last resort. We are aware of the social factors that contribute to the risk of abuse and neglect, including poverty, isolation, lack of safe and affordable housing, and lack of accredited health care facilities. We cannot respond to the growing needs of home care, which is much less expensive, including hospitalizations and placements in health care facilities. Systematic problems exist in the development of these health care agencies, whether in institutions or at home.

We have difficulty recruiting and keeping qualified individuals to be health care attendants. Access to training, compensation and the regulation of these health care attendants are all obstacles to overcome in order to meet the need and ensure that the elderly have the quality care desired and that they will not continue to be victims. All the stakeholders, all the political parties will agree that they deserve better than that.

The Canadian Association of Social Workers recommends that the provincial and territorial ministers of social services discuss with their federal counterpart the issues regarding social programs. We must share best practices to improve the health and well-being of all Canadians, including elderly people, obviously.

No such meetings have been held since May 2006. Discussions and meetings about the Canadian health transfer were held with the ministers of health. But we respectfully suggest that the renewal of the Canadian health and social transfer be on the agenda for future meetings of ministers of social services.

It has been well-established, with research to support it, that there is a direct connection between an individual's economic and social situation and his or her health. If our goal is to ensure the viability of our accessible and universal health care system, we cannot do so without taking into account the growing gap between rich and poor, and without improving access to social programs that meet the needs of Canadians.

[English]

The Chair: Thank you, Mr. Caissie. I know it is awkward being in a remote location. If you wish to respond to a question that is not directed at you, just raise your hand, and one of us will spot you and ensure that you are able to participate.

Senator Jaffer: Thank you very much for your presentations. I understand, from all of your presentations that there is some congratulating of the government. I agree that this is important, but the bill itself will not make the changes. I heard from you, Ms. Neill, that you need more. What would that look like? For me, this identifies the risk factors. We need to build a safety net if we are really going to deal with the issue of elder abuse.

Ms. Neill: Prevention is always the best thing. Prevention is always better than cure. For us, it would be to be able to intervene at an early stage and dovetail what we do with other agencies, to do an early intervention on something before it gets to a point where a senior is in such distress, where a vulnerable adult has gotten to the point that they need to be hospitalized. For us, it would be the opportunity to get in earlier and to be able to work with the other agencies freely. We are very constrained at the moment in how we can share information and approach another agency with what we know. They might be able to act more quickly and do something that we cannot. For us, the best situation would be to work as a multi-agency team.

Senator Jaffer: Mr. Trudell, if I understood you correctly, you said that what this bill covers is covered elsewhere in the code. Can you expand on that?

Mr. Trudell: Bill C-36 is an aggravating factor added to the principles of sentencing in section 718. It may presume that judges, for instance, are not already taking into consideration the abuse of vulnerable victims. There are two cases that are in the government's own backgrounder that talk about how the courts are becoming aware of them. One of them is a decision of the Ontario Court of Justice, Mr. Justice West, in the case of Banks. I do not want to waste your time on it, but I will refer to the following comment:

Mr. Banks' fraudulent conduct respecting his elderly clients, who could not afford to lose any of the money they entrusted to him, demands a denunciatory sentence which will not only deter Mr. Banks but, more importantly, deter other like-minded individuals and reflect the community's abhorrence for this type of criminal behaviour.

In the other case the government has in their backgrounder, which is from the Supreme Court of British Columbia, we find the same type of concern, referring to the Ontario Court of Appeal's decision in paragraph 31:

The fraud committed. . . warranted a significant penitentiary term. Three considerations mentioned by the trial judge supported a substantial sentence. They need to deter and denounce those who prey on the elderly and vulnerable.

The courts are very much aware of this and the government even notes the trend. It does not really add anything in my respectful submission. If we are looking at prevention and awareness, the really enlightened comments of my colleagues are the things we ought to put front and centre.

Having said that, the other concern I have has already been raised here. That is whether adding this as an aggravating circumstance in section 718 will invite people to step forward or will it have people step back into the darkness? Some of this abuse that we see is, unfortunately, cultural, environmental, addiction-based, or it may be mental-health based. My respectful submission is that persons who are not first educated and aware, and we have not spent the time on prevention, will not be particularly interested in coming forward because they will have to go back into the setting they were in. Frankly, a victim may say to the court, by way of a victim impact statement, "You know what, this is my caregiver, it was a bad day, and I do not want you to punish them.'' Therefore it is almost cyclical.

I would be a little concerned, frankly, and starkly concerned if there had been a new offence that this may push people backward as opposed to trying to shed some light on the problem.

Senator Frum: Mr. Trudell, I wanted to understand better your suggested amended wording. I think I understand your concern is that if you have a victim who is in good financial stability and in good health, but whether the victim is 50 or 75, that the perpetrator would get a harsher sentence potentially for the older victim than for the younger victim. What scenario are you afraid of without this proposed word change?

Mr. Trudell: Let me try this: Let us say I came here and I said, "Look, this bill adds nothing and you parliamentarians have no business doing this and it is wrong.'' The abuse that I may get from saying that and being so bold might be looked upon as elder abuse because I am 66, but I am not vulnerable. The key here is not just to protect the elderly, but to protect the elderly who are vulnerable. Adding that vulnerability, on which we have all focused, just makes the bill clearer.

Senator Frum: I totally understand that and agree, but I am not clear why the wording here, "other personal circumstances, including their health and financial situation,'' does not cover that concern, and that that implies some regard for their state of vulnerability.

Mr. Trudell: You might be right. If a judge is looking at this and trying to decide whether this fits, do we want them to have to say look at other personal circumstances, including their health and financial situation, to determine whether or not that is what parliamentarians meant here? Is it clear for a judge who reads the word that this person has an age-related vulnerability as a result of mental health, as a result of health, as a result of finances, and the person who takes advantage of that and abuses them will fall under the aggravated circumstances?

It does not take away, it only makes it clearer in terms of what you are trying to address. It is the vulnerability because of age that is the key.

Senator Frum: I totally agree. I am not sure it not is covered but I hear what you are saying.

Mr. Trudell: It may be. When we canvassed people across the country, this is the first thing that came up. Does it address what the background seems to be trying to address, or does it leave it open to deciding what is elder, whether 50, 40, whatever? We think it might help make it clearer for judges interpreting the section.

Ms. Grinspun: Our colleague, Mr. Trudell, spoke about the cultural issues. I would speak about cultural norms that enable ageism. I think the addition you are proposing could be taken in two ways, and both positive. One is as a tool to lay charges if need be. Another is a tool to promote prevention; not in itself, not alone, but the fact that is in there puts the issue of ageism, not only the vulnerability of the abused, to the forefront of the agenda.

We need to look at what we would call in nursing a psychological model, where you look at the individual aspects, you look at relationships, community, societal factors and, as our colleagues mentioned, and Ms. Neill specifically, an interdisciplinary, multi-sectoral approach that is science-based. There is quite a bit of scientific evidence, hence why we were funded to develop an evidence-based guideline on detection, prevention and dealing with the issue of elder abuse. It holds a lot of promise and we need to use all the tools available to actually put an end to elder abuse.

Senator Fraser: I am interested that Mr. Trudell, Ms. Neill and Mr. Caissie all stressed this element of vulnerability, that that is the core object. I am following on a bit from Senator Frum here. I find it interesting that the summary of the bill actually says it is addressing vulnerability due to age, but the bill itself does not say that.

I have a question for Mr. Trudell. I am 68. I think I am a spring chicken. How likely is it that judges, with this addition to the sentencing principles, would respond by increasing the severity of a sentence simply because the victim was 85? There are 85-year-olds who are fit, and compos mentis and in control of their affairs, but they get mugged on the street. How likely is it that a judge would say the mere fact of comparatively advanced age means that the sentence should be more severe? Do you think that judges looking at the totality of the wording, as Senator Frum suggests, would say that this particular 85-year-old is perfectly capable of being treated like any other victim?

Mr. Trudell: It would be my suggestion that as much guidance as you can give to a jurist to decide the issue and to reflect what Parliament's intention is, the better it is. Judicial discretion is important and sacrosanct. Adding the specific age vulnerability, which is how this started, can only assist. It takes out speculation. Is this what Parliament was talking about? It is not. It is a vulnerable sector that we are talking about here. We can use those examples of the 90-year-old who runs the marathon, but that is not what this bill is about. That is not what this section is about. It is about those persons who have age vulnerability and are taken advantage of. The age vulnerability is around financial, health, isolation, whatever. I respectfully submit that it might make it a little clearer; that is all.

Senator Fraser: Ms. Neill, you said that there are cases of genuine elder abuse where you cannot lay charges. Could you give us an example of what you are talking about?

Ms. Neill: We have instances where a third party will call us about things they are observing. Maybe the person is a neighbour or an extended family member and we do not have enough information to lay a criminal charge. We have seen the advertising on television about elder abuse in an effort to raise awareness.

Senator Fraser: It is a good initiative.

Ms. Neill: We see a lady being shouted at by a male — we do not know who he is — and handing over money to him. There could be times when the victim — and I use the term to identify who we are talking about — may say, "I do not want anything done about this.'' A senior always has the right to self-determination. We have to respect that. There are times when I willingly would have laid a charge because I had all the evidence available to me to lay a charge under the Criminal Code. However, the senior has absolute capacity to make the decision that it is not what they want and that it will not be the best thing for them. Therefore, I have respected their wishes and have done everything I can to work with other agencies to protect the senior. That includes working with banks, social services, health agencies and other agencies to protect them.

There are cases where someone will come forward to say what has happened, for example someone has been encouraged to change a document or to leave money to someone they do not want to leave it to. I cannot always lay charges under the Criminal Code because those decisions are being made by someone who has the capacity to make them.

Senator Fraser: As Mr. Caissie said, there is also the question of fear.

Mr. Trudell: May I make a quick comment?

The Chair: No, we will come back to you, if we have time. I want to make sure all senators have an opportunity.

[Translation]

Senator Dagenais: I have a comment: certainly all crimes against elderly people are serious crimes. We only need to think about all the financial planners who swindled seniors out of their pension plans.

Now, my question is for Ms. Neill. I obviously accept the fact that the victims, as you said, hesitate to file complaints and are sometimes inexplicably compassionate toward their abuser, and we certainly cannot regulate everything all at once. And even though the legislation is not perfect, Bill C-36 will try to right this wrong. Now, do you not think that the sentence has a significant impact on deterring the abusers of vulnerable adults, whether the abusers are strangers or family members?

[English]

Ms. Neill: That is a difficult question to answer because it is a matter of each case on its own merit. There are cases where I firmly believe that, no, it would not have affected the decision of the charged person because many of them do not even believe that they are committing a crime. For example, many accused persons have the attitude of inheritance — it will be mine one day, so I may as well take it now. They do not see that what they are doing is theft. Sometimes it is theft by power of attorney or they are committing fraud. They do not see it as a crime. In cases such as those, I do not think an increased deterrent will stop them. I can speak only from my experiences within our service; but it is not my belief that that would be the case.

Mr. Trudell: We are talking about dealing with someone found guilty in the system. The whole criminal justice system is trying to front-end manage, and so a lot of effort will be made. Let us say that someone is charged at the front end. In terms of putting the pieces back together and finding out what the victim wants, that is happening in the criminal justice system increasingly. We do not rely on the trial or the penalty, but we try to address preventive diversion at the front end, especially in this kind of situation. I am not talking about someone who takes financial advantage of a vulnerable person. The courts address that, but not some of the other cultural issues that arise. For those, the front-end management is important.

Senator McIntyre: Mr. Trudell, in passing sentence a judge takes into consideration the offence, the offender, the victim and the community. Defence counsel is always looking for loopholes in the law. In this case, it appears that loopholes are rather difficult to find. Section 718 already has six aggravating factors, and Bill C-36 will add a seventh factor. When representing a client charged with elder abuse in court, one can argue that the onus of proof is on the Crown — the Crown must prove its case beyond a reasonable doubt. The options might be to either plead the client guilty or proceed to trial. If you plead the accused guilty, you hope for the best on sentence and embrace the trial judge. If you decide to go to trial, you have a few options, not many, for example, putting the client on the stand.

Mr. Trudell: You are trying to embrace the judge for sure in that circumstance.

Senator McIntyre: You can put your client on the stand but then again he is subject to cross-examination or you can cross-examine the witness. It is difficult to cross-examine a vulnerable or elderly person.

Each case runs on its own facts, but what approach do defence attorneys take in situations where they have to represent a client charged with elder abuse?

Mr. Trudell: Every case is different, but defence counsel do not come from Mars. We all have parents and relatives and we see terrible things in the system, just as police officers and judges do. Our responsibility is twofold. The first is to ensure that the evidence is there before someone is found guilty of an offence. We do not always look for loopholes. Oftentimes a loophole is a failure of the evidence to exist.

The most important job a defence counsel can do in terms of trying to protect the public and their client is to put the best picture before the court. In other words, many cases, including many cases of abuse, are situational and you want to correct or address the situation. If the client is guilty and the evidence is there, then you will move on to trying to put the best package together for the court so that this does not happen again, so that people will get the help they need. We do not simply try to find loopholes. Our responsibility is to the public, the court, and to our clients first.

In terms of a vulnerable victim, I will not get anywhere by trying to cross-examine such a victim. I will forget about my client standing behind me if I am interested in the show. It will not help at all in front of a judge or a court.

If I have a vulnerable victim but I feel that my client is not guilty of the offence, I will try to agree on what factors are important and focus on them as opposed to an attack on a vulnerable person.

Defence counsel do not do that. There may be a couple of bad defence counsel in Canada, but on the whole our job is a bigger one and we look at the bigger picture. I do not think you would use a strategy to cross-examine a vulnerable victim. That is not going to get you anywhere.

Defence counsel have to take a complete approach. It does not help to run the trial and then have the person go back to the same circumstance they were in before. We have a responsibility not only to our client but also to the victim and the court. We are officers of the court.

It is not a simple question and I do not think that defence counsel get up in the morning to win at any cost.

Senator McIntyre: Generally speaking, I would think that a lawyer would invite his client to plead guilty in a case of elder abuse. However, defence counsel are sometimes faced with clients who want to proceed to trial. They simply do not want to plead guilty and that is very difficult for defence counsel.

Mr. Trudell: My job is not to tell the client what to do. My job is to put the X-rays before them. If they feel that they want to have a trial in spite of my opinion that the evidence is overwhelming, I will educate them, but it is their right to go to trial. I will not have people perjure themselves on the stand, but the client has an absolute right to be presumed innocent and to have their trial. However, if you explain the circumstances, put the X-rays before them and help people understand how the system works, oftentimes you will not have a trial.

Senator McIntyre: But they do not always understand.

The Chair: This reminds me of a case in my hometown a few years ago. There was a very wealthy lady in her late 80s from a nationally prominent family and family members accused the caregiver of stealing some very valuable jewellery. The defence from the individual charged was that the lady had gifted it to her. Of course the elderly lady was suffering from Alzheimer's.

I know you are on the other side of the fence here and that is why I think Ms. Neill might want to comment on this too. It seems to me that the onus is to a greater degree on the prosecution with many of these cases, especially when dealing with people suffering from some form of dementia.

I would like to hear from both of you briefly on that.

Ms. Neill: It is very difficult for us, particularly as in our unit we only deal with people who are incredibly vulnerable. We will do our best to capture as much evidence as we can. We take video cameras and commissioners of oaths with us to get as much information as we can because, as highlighted in the summary, many of our seniors die, unfortunately, before their case comes to court, and we then have to make applications for their evidence to be heard.

We tread a fine line when determining whether we have a criminal offence. Did the woman gift the jewellery? Should the caregiver have been aware that that person did not have the capacity to give a gift like that? It takes skilful questioning. The investigations are long and complex and take a considerable amount of time.

We work well, I believe, with defence counsel at judicial pre-trials to try to come to an agreement on where we are long before the matter comes before a judge and jury. It is incredibly difficult to work out who is at fault. Should the caregiver in that instance have known that this senior did not have the capacity to give away large amounts of jewellery? Should her professional body have given her direction on that type of conduct? All of those sorts of things are drawn into an investigation. We fully disclose everything we have to defence counsel and have meaningful discussions about them.

The Chair: I think that was the main thrust of the prosecution. She was found innocent, by the way.

Mr. Caissie, do you wish to comment?

Mr. Caissie: As the previous speaker said, many situations of abuse are circumstantial, for lack of a better word. I think this bill addresses specifically vulnerable senior citizens who are targeted for fraud or for home invasions for the purpose of robbery and sometimes violence. Those who suffer from Alzheimer's disease have less defence in nursing homes. They are specifically targeted because of their vulnerability often related to their age and to their health circumstances.

In that sense, it helps judges with sentencing when people come before them charged with fraud of senior citizens or with home invasion. In social work we do not see too many of those cases because those cases go before the criminal courts. Those are very specific circumstances that Bill C-36 would address.

Senator Joyal: Mr. Trudell, I have the perception that Bill C-36 is very objective in determining what I call the reverential element. It says:

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

Their age can be objectively established. Health can be objectively established through the production of a report of a doctor or a nurse who cares for the person. Financial situation can also be objectively established.

However, if you introduce the element of vulnerability, it becomes subjective. As my colleague has been saying, someone who is 75 years of age might be autonomous, as we say in Latin, sui compos, in full control of his or her condition, but someone the age of 62 that suffers from any kind of mental disability can be very vulnerable.

The way I read your proposal for an amendment, it introduces a subjective element into the context of an overall expression of objective criteria. The age of a person is easily established. Their health condition can easily be established. The financial situation of a person can be established objectively. When you introduce the subjectivity, which is the vulnerability of a person, then it becomes left to the appreciation of another external source of proof, because someone can be vulnerable to a certain point but not to the point of.

Do you not think it is more dangerous for you as a defence lawyer or Ms. Neill as an investigator to have that kind of subjective element introduced into the bill?

Mr. Trudell: Senator Joyal, we have to operate on the basis that this bill is going to pass. It cannot go back on the basis that we do not need it. It calls for a subjective, aggravating sentence for a particular offender. That is what this is. It is already happening, but this is going to say, "In this specific circumstance, given the specific circumstances of this victim, we are going to consider increasing the sentence because it is an aggravating factor.'' In that way, because we are talking about an individual case and perhaps even upping a sentence that might otherwise be appropriate, I see that as less dangerous for defence counsel because it will have to be a factor that this person has an age vulnerability.

I do not know whether that answers your question, but I am less concerned if it is specific to age vulnerability than I am to an interpretation that is more objective and open. We are talking about the individual case and an individual sentence and an individual aggravating factor, and that is that the client took advantage of a vulnerable, elderly person.

Senator Joyal: As my colleagues around the table have said, you can be 68 and be vulnerable if you are not fully in control of your own condition psychologically, and you could be totally invulnerable at 75 years of age because you are fully in control of your physical and financial condition.

You are introducing an element of appreciation of the level of vulnerability, at which level the vulnerability becomes a triggering element for an increased sentence. That is where we are in the code. Section 718 states quite clearly "other sentencing principles.'' We are in the sentencing principles. The person has already been found guilty. We are making representations to the court that that person should in fact have an additional element in the consideration of a judge to impose a sentence on the basis of an additional vulnerability of the person.

It is a very subjective element if you introduce the concept of vulnerability in front of a judge. That is why I am concerned about your stand. Normally, it is much better to have objective criteria established. It helps to frame the discretion of the judge rather than introducing an element of discretion that can itself be the objective of proof before a judge. It is not because you are 65 that you are vulnerable. You can be vulnerable at 62, depending on your physical and mental condition. It is a subjective concept, according to a certain level of criteria that you would have to establish.

Mr. Trudell: As always, we appreciate your guidance in relation to the specific issues, but I do not want to say that this section creates a loophole as written. Let us go back to point one, which was, I thought, that the government wanted to make a statement because of persons who suffer from an age vulnerability. When I read the early debates that is what I thought we were talking about.

Senator Joyal: Yes, that is what my colleagues state in the summary of the bill.

Mr. Trudell: Keeping up with the purpose of this, it seems to be missing from section 718. The intellectual exercise you focused on is one that will probably be carried out in the courtroom, no matter what you do with it.

The Chair: We will have to move on. We are running out of time here. I would ask the witnesses to be as concise as possible in their responses.

[Translation]

Senator Boisvenu: My question is for Mr. Caissie definitely and perhaps Mr. Trudel, as well. But if the others want to comment, they are welcome to.

Mr. Caissie, you spoke about home invasion, which is an issue that concerns me greatly. A little like Senator Joyal said, I am very concerned when we give judges subjective criteria for determining the severity of a sentence.

I will tell you about a case in Montreal a few years ago: an elderly woman was beaten by a man in the metro. That man then assaulted two other women the same day. And since that individual appeared before the judge and was repentant —one of the steps toward rehabilitation — he was sentenced to two years less a day, to be served in the community. I find that subjectivity just makes the sentences more flexible. And that concerns me a great deal.

A typical example of this is the sex offender registry. Since 2004, we have let judges decide on how dangerous the criminals before them are in order to determine whether they should be added to the sex offender registry. What that means is that, from 2004 to 2010, only 38 per cent of men convicted of a sex offence were added to the registry. That led to a review of the registry in 2005, to ensure that 100 per cent of people committing certain sex offences are added.

The notion of subjectivity that judges often have means that a lot of sex offenders will get through loopholes in the Criminal Code. I agree with you when you say that the Criminal Code is very loaded, and other associations like yours could put pressure on the government to review it.

Mr. Caissie, when we see that home invasions increased by 38 per cent between 1999 and 2006, and that they were property offences and not crimes against the person, I would like you to tell me whether this notion of subjectivity should be limited as much as possible. Along those lines, does the bill before us include fairly objective elements to ensure that we do not give more importance to criminals than we do to elderly persons who will be victims of home invasion, among other things? In the case of this poor woman scarred for life, the element of "vulnerability'' was not considered in the criminal trial, just the criminal's "rehabilitation''.

So, do you think that Bill C-36 will ensure that these kinds of criminals will not get off as lightly in court?

Mr. Caissie: I think it is important for legal experts to consider the circumstances from the victim's point of view as well, and not just from the perspective of the person who committed the offence.

I spoke about home invasion earlier, where seniors are specifically targeted, people who live in housing that is less secure or in a nursing home, for example. That is why I believe that this must be recognized, which is what this bill is trying to do. It is sending a message. It is also sending a message to the judge who has the opportunity to take the circumstances into account.

I do not know if there is as much subjectivity. The objectivity includes the circumstances and not just the person's age. If we only considered age, well, what would that age be? It is not just a matter of age; it is a matter of other circumstances, as well, including health, financial situation and other things. In that context, home invasions of elderly persons have greatly increased because they are vulnerable. I repeat: vulnerable.

Senator Boisvenu: Since home invasion is not a crime against the person, but a property offence, the criminal is at an advantage during his trial. I am not sure if you agree with me, Mr. Caissie. Do you? Is it perhaps that this type of offence is poorly classified in the Criminal Code and we should consider home invasion of elderly persons a crime against the person and not a property offence?

Mr. Caissie: Thirty per cent of cases of elder abuse involve financial abuse. We say that it is a property offence, but it is against the elderly person as well. How that should appear in the Criminal Code, I do not know. That is not my area of expertise.

[English]

Ms. Grinspun: In relation to the previous comment on vulnerability, notwithstanding that we believe this amendment alone will not produce the changes we are looking for, we continue to be fully supportive of the bill as written. I believe the word "vulnerabilities'' is already in the code when it says added personal circumstances, including health and financial situation. That is the vulnerability. It is the whole package. I think introducing more subjectivity is enough to interpret the intent of what is trying to be done here.

The Chair: Thank you all for being here today. It was very helpful for our deliberations. We appreciate it very much.

I want to mention to members that we are calling a short special meeting at 8:30 a.m. this coming Tuesday for clause-by-clause consideration of this legislation. I hope everyone will keep that in mind. We will let you know what room it will be in. We will have our regular meetings on Wednesday and Thursday.

That concludes today's meeting.

(The committee adjourned.)