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KRISTA JAMES
Elder Abuse and Neglect Are they crimes?
A
CRIMINAL CODE PROVISIONS
lthough the Criminal Code sentencing provisions codify aggravating factors linked to age or disability (718.2), most crimes are age neutral. That said, many provisions could capture circumstances of elder abuse or neglect. Sexual and physical abuse can be prosecuted under the assault (265268) and sexual assault provisions (271-273). Emotional abuse could be criminal harassment (264) or intimidation (423). An abuser who threatens to harm a pet could be charged with uttering threats (264.1). An adult child who will not visit with grandchildren unless the older person pays for a new car could be charged with extortion (346). At least twenty different Criminal Code sections could be applied to financial abuse, including various theft and fraud provisions. There is also a crime of theft by a person holding a power of attorney (331).
align with various Criminal Code offenses. A 2011 study paper by the Canadian Centre for Elder Law analyzes a number of reported court decisions that apply the Criminal Code to elder abuse and neglect. CROWN COUNSEL POLICY
Elder abuse can be difficult to prosecute. Our adversarial justice system is not gentle with older victims who have health and disability issues. If a victim is living with dementia, they may struggle under crossexamination. If they have serious health issues, or a short life expectancy, they may be unable to testify. Crown might not be skilled in working with a witness who is living with dementia.
Neglect could be prosecuted as a failure to provide the necessaries of life (215) or criminal negligence (219) if there is a dependency relationship. If abuse or neglect leads to death, an abuser could be charged with murder (229-231), manslaughter (234, 236), or causing death by criminal negligence (220).
BC Crown Counsel Charge Assessment Guidelines require Crown to consider the likelihood of conviction and whether the public interest requires prosecution. Some public interest factors noted in policy can apply to elder abuse dynamics, including “the relative vulnerability of the victim,” “the alleged offender’s position of authority or trust,” and “evidence that the offence was motivated by bias, prejudice, or hate based on… age… mental or physical disability, or any other similar factor.”
The Advocacy Centre for the Elderly developed this helpful image to illustrate how different forms of abuse
Crown Intimate Partner Violence Policy is less discretionary, stating that where there is adequate evidence
to prosecute “it is generally in the public interest to proceed with a prosecution.” Of course, elder abuse and intimate partner violence are overlapping categories: many older people are abused by their partners. SHOULD A LAWYER CONTACT THE POLICE?
Even if an older person does not want their abuser — likely a family member — to be charged, police can play a role in responding to abuse if they are properly trained to support older adult survivors of violence and trauma. They can connect older people with helpful services, including victim assistance. They can work with Crown to consider whether a s 810 recognizance or peace bond is appropriate due to safety issues or risk of property damage. They can connect an older person with free legal assistance to get a civil protection order under the Family Law Act. They can provide safe transport. The criminal law is one of many elder abuse response options. The best approach boils down to each older person’s unique circumstances and what they want. As noted in the Practical Guide to Elder Abuse and Neglect Law in Canada, abuse can rob a person of freedom and independence. Lawyers should be conscious that their responses do not further undermine personal autonomy. This Decision Tree, published by Public Guardian and Trustee, summarizes the role of police and other agencies in responding to abuse. It may help lawyers identify next steps. Krista James is a staff lawyer and National Director of the Canadian Centre for Elder Law. DECEMBER 2021 / BARTALK 17
