Legal Definitions of Elder Abuse and Neglect

2.0 CANADA

2.1 Legislation

2.1.2 Federal Legislation—An overview of the Criminal Code framework

2.1.2.1 Offences related to elder abuse

With respect to criminal law in Canada, as in most of the countries we reviewed, there is no specific crime of elder abuse under the Canadian Criminal Code, the federal statute that creates criminal offences. Nor is there any other Canadian statute that criminalizes the mistreatment of elderly people in particular. In comparison, as discussed in later sections of this paper, most American jurisdictions have chosen to criminalize elder abuse by passing legislation creating specific crimes against older adults using the term "elder abuse". This does not mean it is legal to harm older people in Canada; it means that the mistreatment of older adults must be captured by general criminal law provisions within the Criminal Code in order to be considered crimes.

Criminal cases invoking the language of elder abuse for the most part involve the following criminal offences:

  1. Neglect cases prosecuted under the "failure to provide the necessaries of life" (s. 215);
  2. Manslaughter (s. 236);
  3. Home invasion cases prosecuted under the robbery and breaking and entering provisions of the Criminal Code (ss. 344(b) and 349(1));
  4. Sexual assaults (s. 271(1)); and
  5. Fraud (s. 380(1)).
2.1.2.2 Sentencing and older adult victims

Most of the reported criminal cases discussed in the next section of this paper involve a sentencing hearing where the age of the victim is a factor relevant to sentencing. Canadian judges maintain broad discretion with respect to sentencing; although the Criminal Code contains maximum and minimum punishments for various crimes, in Canada sentencing is fact driven and the judge is required to fashion a sentence tailored to the offender and the offence. Sentencing hearings generally involve consideration of the details of the crime, the history of the offender and of the impact of a crime on the victim and society at large.

According to section 718.1 of the Criminal Code, a sentence "must be proportionate to the gravity of offence and the degree of responsibility of the offender." The vulnerability of a victim by virtue of age, disability or other similar factors goes to gravity22 and thus has a significant impact on sentencing.

The Criminal Code further states under sentencing principles:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

  • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
  • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
  • …
  • (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim…23
2.1.2.3 Criminal neglect

The offence in the Criminal Code that comes the closest to creating an offence of elder neglect is section 215. Section 215(1)(a) of the Criminal Code creates an explicit duty on the part of a parent or guardian to provide a child under the age of 16 with the necessaries of life. Subsection (b) creates a parallel duty as between spouses. Although there exists no particular duty on the part of an adult child to provide for a parent or elder family member under the language of section 215, under s.215(1)(c) a duty of care arises when one person is under the charge24 of another and that person is unable to provide for himself/herself. The Criminal Code states:

Duty of persons to provide necessaries

215. (1) Every one is under a legal duty

  • (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
  • (b) to provide necessaries of life to their spouse or common-law partner; and
  • (c) to provide necessaries of life to a person under his charge if that person
    • (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
    • (ii) is unable to provide himself with necessaries of life.

Offence

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

  • (a) with respect to a duty imposed by paragraph (1)(a) or (b),
    • (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
    • (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or
  • (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

All the Canadian criminal neglect cases we unearthed in our research were prosecuted under subsection 215(2).

In Canada the meaning and scope of crimes are refined through judicial interpretation. These general crimes do not define elder abuse even indirectly. They figure as part of this study by way of background to understanding any judicial statements regarding the meaning of elder abuse, much of which has come out of the language of sentencing appeals on general crimes involving older adult victims. The following section fleshes out aspects of the definition of elder abuse and neglect that have emerged out of Canadian case law.