Sentencing in Elder Abuse Cases

• Canada

By Heather Campbell

In Canada, there is no specific crime of “elder abuse” identified in the Criminal Code. Instead, crimes committed against older people must be prosecuted under other criminal provisions, such as failing to provide the necessaries of life (s. 215), manslaughter (s. 236), assault (s. 265), sexual assault (s. 271), unlawful confinement (s. 279), uttering threats (s. 264.1), theft (s. 334), theft by power of attorney (s. 331) and fraud (s. 380). This contrasts to the U.S. approach, where many states have criminal legislation that specifically define “elder abuse” as a crime.

This is not to say that Canadian courts ignore a victim’s advanced age. Courts, for example, may take into account the victim’s age when sentencing an offender. In particular, if the crime was committed against a vulnerable elder, a sentencing judge may consider this to be an aggravating factor. Generally speaking, aggravating factors increase the severity of an offender’s sentence. These factors are in contrast to mitigating circumstances (e.g., no previous criminal record), which may result in a judge imposing a lesser sentence.

In recent years, the federal government has made two amendments to the Criminal Code’s sentencing provisions that specifically address the age of victims. The first amendment was in 2011. Under Bill C-21, An Act to amend the Criminal Code (Sentencing for Fraud), the government added four aggravating factors that judges must consider when sentencing someone convicted of fraud. One of the aggravating factors is that the fraud “had a significant impact on the victims given their personal circumstances including their age, health and financial situation” (s. 380.1(1)(c.1)).

The second—and broader—amendment came in 2012. Under Bill C-36, An Act to amend the Criminal Code (Elder Abuse), the government included vulnerability due to age and other personal circumstances as an aggravating factor to the general sentencing provisions (i.e., not just specifically to fraud cases). As a result of Bill C-36, the Criminal Code now states that when sentencing an offender, a judge must take into account “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation” (s. 718.2(a)(iii.1)).

According to the federal Department of Justice, Bill C-36 would “help ensure that sentencing for crimes against elderly Canadians reflects the significant impact that crime has on their lives.”

Bill C-36 was generally seen as a positive step; however, it was met with some resistance from several elder advocates who stressed that greater emphasis ought to be placed on the underlying social dynamics of elder abuse. There was concern that the amendment did not tackle the root causes of elder abuse, and that it may further complicate and disrupt already complex relationships of love, dependency and vulnerability.

As NDP MP Irene Mathyssen stated, “One of the things that bothers me about this [amendment] is this government is going to say ‘well, we have introduced this into the Criminal Code and we’ve done our job.’” Mathyssen continued, “They have not done their job. They are ignoring all the social aspects of elder abuse that we must address.”

To a large degree, criticisms of Bill C-36 are well-placed. Prior to Bill C-36 coming into force, sentencing judges were already taking into account the vulnerability of elder victims. In R v Kralik, for instance, the judge stated that “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.” This case was decided in 2006, six years before Bill C-36.

Another example is found in R v Peterson, a 2005 Ontario Court of Appeal decision. In this case, the court noted that “[t]he sentence must bring home to other like-minded persons that abuse of elderly helpless parents in their care will not be tolerated.”

Earlier, in 2001, the Ontario Court of Appeal acknowledged “[t]he need to deter and denounce those who prey on the elderly and vulnerable.”

In R v Linton, a 1999 decision by the B.C. Supreme Court, Justice Singh listed a number of aggravating circumstances, including the fact that the “victims were aged, infirm, suffering from progressive dementia and physically and mentally disabled.”

Thus, sentencing judges have long been taking into account the victim’s age and other personal circumstances, even though these were not specifically identified in the Criminal Code as aggravating factors.

Indeed, courts have stated that the aggravating circumstances set out in the Criminal Code are examples. That is, the list is not exhaustive. When determining a sentence, judges also consider other aggravating factors that are not specifically listed. For instance, in R v Grant, another pre-Bill C-36 decision, the court observed that the case involved only one statutory aggravating factor (that the accused abused her position of trust in relation to the victim); however, the court went on to note that the victim’s age and severe health conditions that needed medical attention were also aggravating factors. The court reviewed the sad facts, observing that:

“In cases like this one, the impact of the offence on the victim needs to be examined with particular attention. Put bluntly, the accused left her elderly sick mother sitting in a living room chair to die without offering her any meaningful care or help. The evidence established that her mother had been sitting on that same chair for at least three to four months. During that time, her gangrene wounds became so bad that liquid was oozing from the rotting flesh of her legs. She had not been washed nor had she been properly nourished. At the time of her admission, she was found to be in a profound malnutrition state. I cannot begin to imagine the pain and suffering that [her mother] endured prior to her admission to the hospital on January 10, 2007. How can anyone leave an elderly sick person suffer to that extent, never mind your own mother! Her acts and omissions towards her mother are so cruel that, in my opinion, they amount to serious violence.”

In R v Foubert, a case also decided before Bill C-36, the sentencing judge noted:

“Fundamental to my decision is the recognition that Canada has an aging population. Each year increasing numbers of elderly persons are being placed in long term care facilities. Many of these care facilities have locked wings for patients suffering from Alzheimer's disease and dementia, similar to the locked wing reserved for the war veterans who were under Mr. Foubert’s care. Studies filed by the Crown demonstrate that elder abuse is a growing problem in our society that must be seriously addressed.”

These cases beg the question: has Bill C-36 helped ensure that sentences in elder abuse cases reflect the significant impact the crime has on older victims’ lives? The answer is unclear.

In a recent 2015 case, for example, the accused appealed his conviction and sentence from events that occurred in 2011. With respect to sentencing, the accused argued that the trial judge erred by including the victim’s age and other personal circumstances in the list of aggravating factors because that factor was not added to the Criminal Code until Bill C-36 came into force in 2012—after he committed the offence. However, the appellate court agreed with the Crown that Bill C-36 “did not represent a change in the law but merely a codification of a common law principle which applied prior to the enactment of the provision.”

At a minimum, Bill C-36 has brought greater awareness to crime’s impact on vulnerable elders. However, it remains to be seen whether the statutory recognition of the victim’s age and other personal circumstances has resulted in stiffer sentences in elder abuse cases—since courts were already taking these factors into account. And again, as critics argue, harsher sentences may further disrupt the often complex dependency relationship between victims and offenders.

Further Reading

Case Law

• R v Davy, [2015] OJ No 939.
• R v J.A.L., 2005 CanLII 47835 (NL Prov Ct).
• R v Lamsen, 2014 ONCJ 670.
• R v Lozada, 2013 ONCJ 770.
• R v Nanfo, 2008 ONCJ 313.
• R v Okumu, 2006 ABQB 856.
• R v Piche, 2014 ABPC 93.
• R v Webb, 2011 SKPC 181.

Publications

• Canadian Centre for Elder Law. “Moving from Scrutiny to Strategy: An Analysis of Key Canadian Elder Abuse and Neglect Cases”
  (The Counterpoint Project—Discussion Paper) (2011).

• Echenberg, Havi & Cynthia Kirkby. “Bill C-36: An Act to amend the Criminal Code (Elder Abuse)” Publication No 41-1-C36-E, Parliamentary Information and Research Service, (Ottawa: Library of Parliament, 3 December 2012).
  
  
• James, Krista. “Legal Definitions of Elder Abuse and Neglect” (A Report prepared for the Department of Justice Canada, Family, Children and Youth Section) (May 2009).

Heather Campbell is a B.C. lawyer and master of laws student at the University of Saskatchewan.
You can follow her on Twitter @SeniorsLaw