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- Published: 01 November 2015
By Heather Campbell
Far too often, financial elder abuse victims and their advocates are told by police that the situation “is not a criminal matter. It’s civil.” Sometimes this may be true; frequently, however, the police response is wrong. Theft by a person holding a power of attorney (POA), for example, is identified as a criminal offence under s 331 of the Criminal Code (the Code).
Writing in 2007, Sgt. Brian Trainor (Ret.) suggests that part of the problem is that “very few police officers have heard of [s 331].” This can partly be explained because s 331 is not the actual charging provision; that is, when an attorney is charged with stealing, they are charged under s. 334, not s 331.
Section 334 sets out the punishment for theft. It states that if the value of what was stolen exceeds $5,000, the person is guilty of an indictable offence and faces up to 10 years in jail. If the value does not exceed $5,000, the person is either (1) guilty of an indictable offence and faces up to two years in jail or (2) guilty of a summary offence. (Summary offences are less serious crimes, while indictable offences are more serious. Hybrid offences can be dealt with as either summary or indictable.)
To be sure, police forces are improving their knowledge of financial elder abuse. For an example of police training material, see the presentation by A/Sgt. Christina Wolf of the Ottawa Police Service entitled “Theft by Power of Attorney Police Tool”.
Despite the greater awareness among officers, financial elder abuse victims and their advocates still encounter the “it’s a civil matter” response from some police.
If police refuse to lay a charge (or recommend to Crown counsel that a charge be laid), there may be the option of initiating a private prosecution. In these situations, private citizens bring criminal charges (or in legal terms, “lay an information”).
Under s 504 of the Code, anyone who has reasonable grounds to believe that a person has committed an indictable offence may lay an information in writing and under oath before a justice. Private prosecutions are also available for summary offences (s 795; Reece v Edmonton (City), 2011 ABCA 238 at para 114).
In Gouriet v Union of Post Office Workers, (1977) 3 All ER 70 at 5 (HL), Lord Wilberforce recognized private prosecutions as “a valuable constitutional safeguard against inertia or partiality on the part of authority.”
Private prosecutions, however, are subject to the Crown’s right to intervene and take over the case. Sometimes, the Crown may decide to withdraw the charge. In B.C., for example, the Crown Counsel Policy Manual states that its general policy “does not permit a private prosecution to proceed. Crown Counsel will usually take conduct of the prosecution or direct a stay of proceedings after making a charge assessment decision.”
Whether a private prosecution is a suitable avenue to pursue in financial elder abuse situations remains to be seen. There is a dearth of research on the topic. It is an area which requires further discussion and analysis.
*This post was edited May 16, 2016*
Additional Resources
Publications
- Alberta Justice and Solicitor General, “Private Prosecutions” (20 May 2008).
- JusticeBC, “Understanding Charges: Types of Offences.”
- Law Reform Commission of Canada, “Private Prosecutions (Working Paper 52)” (Ottawa: Law Reform Commission of Canada, 1986).
- National Initiative for the Care of the Elderly, “Theft by Person(s) Holding Power of Attorney – Officers Investigation Guide.”
- New Brunswick Office of the Attorney General, Public Prosecutions Operations Manual, “Private Prosecutions” (1 September 2015).
- Ontario Ministry of the Attorney General, “Private Prosecutions.”
- Peter Burns, “Private Prosecutions in Canada: The Law and a Proposal for Change” (1975) 21 McGill L J 269.
Case Law
R v Kaziuk, 2012 ONCJ 32 (CanLII) (used POA to defraud mother of $20,000).
Interested in Power of Attorney matters?
Sgt. Brian Trainor (Ret.) will be speaking about Establishing a National Power of Attorney Registry: A Pan-Canadian Approach to Minimizing Financial Elder Abuse and Fraud during the 2015 Canadian Conference on Elder Law in Vancouver (November 12-13, 2015). This Day 1 debate will also feature Professor Doug Surtees, Kimberly Azyan (Director, Services to Adults, Public Guardian and Trustee of BC) and Clare Burns (WeirFoulds LLP). Jay Chalke, QC, the Ombudsperson of British Columbia, will moderate the debate. Conference information and registration.
Heather Campbell is a B.C. lawyer and master of laws student at the University of Saskatchewan.
You can follow her on Twitter @SeniorsLaw
