III. Addressing Ageism and Advancing Substantive Equality: Developing a Principles-Based Approach

At an early stage in this project, the LCO determined that its approach to the law as it affects older adults would be rooted in a set of principles, building on the foundations created by the International Principles for Older Persons (IPOP)[199] and the National Framework on Aging (NFA).[200] Although there are challenges in defining and grounding principles, a principles-based approach can provide a set of norms against which to evaluate existing or potential laws policies and programs.  

Based on the results of its consultations, the LCO decided that the principles should have their roots in an anti-ageist approach to the law and aim to advance substantive equality. That is, the norms which are identified through the principles should proactively address negative attitudes and approaches (at the level of both individuals and systems) to older adults as they are manifested in the law. Through research and consultations, the LCO has identified six guiding principles for the law as it affects older adults.  

In keeping with this approach, this chapter of the Report outlines some key features of ageism, and the values on which to base a framework for the law that is centred on substantive equality. The second part of this Chapter builds on this foundation to analyze and define principles for the law as it affects older adults, and to briefly consider some implications for their application.

 

A.    Understanding Ageism

Any systemic framework for the law as it affects older adults must incorporate an understanding of the barriers that older adults face, both in the law and in society at large, and must develop an approach that addresses those barriers and that is based on a positive understanding of and respect for older adults.

The concept of ageism provides a starting point for understanding how older persons may be marginalized, excluded or disadvantaged in the development or application of the law.  

 

1.               The Concept of Ageism

The concept of ageism developed relatively recently. Robert Butler, an American, pioneered an influential approach to the issue in the late 1960s. He defined ageism as

[a] process of systematic stereotyping or discrimination against people because they are old, just as racism and sexism accomplish with skin colour and gender. Ageism allows the younger generation to see older persons as different than themselves; thus they subtly cease to identify with their elders as human beings.[201]  

Butler pointed out that ageism manifests in a variety of forms, including stereotyping, negative attitudes, discriminatory behaviours, avoidance and social exclusion. Ageism may derive from ignorance – the lack of contact between younger and older persons – or from a profound fear of aging and death. It may also serve a rational purpose, in justifying preferential treatment of younger persons and excluding older persons from a share of societal resources.[202]

Ageism may also manifest as systemic disadvantage and exclusion of older persons in societal institutions. The Ontario Human Rights Commission (OHRC) has defined ageism as “a socially constructed way of thinking about older persons based on negative stereotypes about aging as well as a tendency to structure society as though everyone is young.”[203] 

For the purposes of this Project, ageism may be defined as a belief system, analogous to racism, sexism or ableism, that attributes specific qualities and abilities to persons on the basis of their age. Ageism may manifest with respect to older adults in attitudes that see them as less worthy of respect and consideration, less able to contribute and participate in society, and of less inherent value than others. Ageism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. 

There have been considerable efforts, both in Canada and internationally, to identify and address ageism and age discrimination. The United Nations declared 1999 the International Year of Older Persons, and there are now a plethora of international documents focused on inculcating respect for and addressing the needs of older persons.[204] Advocacy organizations like CARP[205] vigorously represent the views and needs of their constituencies, while Ontario’s Advocacy Centre for the Elderly (ACE) has been a major force in promoting law reform relating to older persons. In 2000, the OHRC undertook a high-profile endeavour to raise respect and awareness about the human rights of older persons and to advocate for reforms in law and policy.[206] The Senate Special Committee on Aging has recently completed a multi-year project on older persons in Canada.[207] Change is underway, and attitudes towards older persons continue to evolve.  

However, ageism and age discrimination are still frequently treated less seriously than other forms of prejudice and discrimination. It has been noted that

[i]t is the case … that age discrimination tends not to attract the moral outrage as do many other forms of discrimination. This may reflect in part the fact that we all can expect to be older, but we will not all be members of the other groups involving prohibited grounds for discrimination. Furthermore, age discrimination is often justified in the minds of some in that it involves more opportunities for others, such as jobs and promotion opportunities if, for example, mandatory retirement prevails.[208]

The OHRC has stated that it “is very concerned that ageism and age discrimination do not appear to invoke the same sense of moral outrage and condemnation as other forms of unequal treatment.”[209] 

Ageism has its basis in a set of pervasive stereotypes and negative attitudes towards older persons.

 

2.               Stereotypes and Negative Attitudes Regarding Aging and Older Adults

Negative attitudes towards aging and older persons are not inevitable. Some societies value their elders highly as sources of wisdom, knowledge and experience. The Madrid International Plan of Action on Ageing (MIPAA) points out, “[r]ecognition of the authority, wisdom, dignity and restraint that comes with a lifetime of experience has been a normal feature of the respect accorded to the old throughout history.”[210]

However, many have pointed to the lack of positive images of aging in our own society.[211] The Special Senate Committee on Aging stated that

[i]t is difficult to talk about aging in a positive way in a society which fights aging so vigorously. We are assailed with advertising which promises eternal youth. Changing this view will take a concerted effort.[212] 

The MIPAA, the OHRC and the Special Senate Committee on Aging have all recommended government initiatives to promote positive images of aging.[213]  

Some have identified the roots of negative attitudes and stereotypes in the significant age segmentation of our society, in which young, middle-aged and older persons occupy separate social and functional spheres. Associated with this is age segregation, where older persons are separated from the mainstream institutionally, culturally and spatially. Some academics have described old age as “a separate country”. The result is an “us and them” separation between older and younger persons.  

[A] key weapon against stereotypes and prejudices is intergroup contact, which allows individuals the opportunity to challenge homogenized categories and see beyond stigmatized characteristics to other relevant qualities of persons in a pivotal category. In our view, arenas that facilitate ongoing interaction, familiarity and personal knowledge across age categories are hard to come by. Institutional arrangements that segregate older and younger persons from each other, and from other age groups, restrict opportunities for individuals to form stable cross-age relationships.[214]

Others have pointed to the development of what some have termed a “youth cult” that associates youth with the future and new technology.[215] The Special Senate Committee on Aging noted in its Final Report that ours is a youth oriented society. Growing older is viewed as “something to be denied, avoided at all costs, and kept hidden”.[216] 

As well, there are commonly negative, even catastrophic, perceptions of the demographic reality of an aging society. An apocalyptic view of demographic trends and an assumption of intergenerational conflict for scarce resources is a common theme in media, fuelling fears about the sustainability of public programs such as medicare and the Canada Pension Plan (CPP).[217] Older persons are viewed as burdens, not only on individual family members, but on society as whole. They therefore become targets for resentment. The MIPAA notes that “older persons are disproportionately portrayed as a drain on the economy, with their escalating need for health and support services.”[218] ACE notes that stereotypes about older adults as sickly, and the belief that this group is responsible for increases in health care costs, may support policies to reduce social programs for care, and may send the message that older adults are not entitled to services.[219]

Older persons may internalize negative images of aging, which may lead to self-imposed limits on their activities. They may give up their independence or refrain from participating in society in conformance to expectations about what is “appropriate” for persons their age.[220] The Expert Panel on Older Workers noted that one of the barriers that older workers may experience in seeking re-employment is lack of self-esteem or self confidence: older workers may perceive that employers will not see value in them, saying, “who would want to hire me? I’m too old”.[221] Internalized ageism may result in older adults accepting the negative valuation placed on older persons, and rejecting any association with “old people”.[222]

There is a constellation of commonly found stereotypes and negative attitudes regarding older persons. The most commonly expressed are the following: 

• Older adults are homogeneous and age is the defining characteristic of older adults.
• Old age is a time of looking backwards, and older adults are resistant to change and unwilling to learn new things.
• Old age is a time of inevitable decline, and older adults are mentally or physically frail and incapable.
• Older adults have nothing further to contribute, and are simply waiting for death.
• Older adults are burdens, dependent on others and passive recipients of services. 

While these are stated in very strong forms, they exist, of course, in various shades and degrees, and may co-exist with other, more positive images and attitudes towards older persons.  It is also important to keep in mind that all older adults will not be subject to ageist attitudes and stereotypes to the same degree, so that those with greater economic power, or who live within communities where they have greater social capital may experience less ageism than other more disadvantaged older adults.[223]

As was highlighted in the previous Chapter, in considering stereotypes regarding older persons, it is important to take into account how these may be exacerbated or compounded for persons who are identified by other sources of disadvantage, such as gender, sexual orientation, disability, racialization or Aboriginal identity, citizenship or low-income. For example, stereotypes regarding the declining capacities of older adults may be exacerbated for older immigrants for whom English is a second language, who may be treated with very low levels of patience. Older women are particularly affected by negative attitudes about the attractiveness of older persons, and often assigned very low status. Older adults who have faced discrimination throughout their lives, such as LGBTQ or racialized older adults, and who have coped by trying to blend in and not be noticed, may be especially affected by the tendency to overlook older adults and their needs: the combination of their reluctance to complain and the tendency to ignore their needs may result in their complete invisibility to service providers and policy makers.   

The end result of these negative attitudes and stereotypes is the conclusion that older persons are worth less than other people, and are less deserving of respect, consideration and attention. An anti-ageist approach to the law must begin by replacing these stereotypes and negative attitudes with more accurate (and more positive) ideas about the realities of aging and of older adults.

 

3.               Valuing Older Adults

Stereotypes and negative attitudes regarding older adults are generally based on inaccurate ideas regarding older adults, as well as on a failure to appreciate our common humanity. Rather than stereotypes, the law as it affects older adults should be based on a positive set of ideas and values.

Older Adults as Diverse Individuals

Instead of getting more alike, as we age, we continue to get very different.

LCO Consultation Questionnaire Respondent 

As is clear from the brief outline of the circumstances of older adults in Chapter II of this Report, despite some commonalities in the experience of aging, older adults are an extremely diverse group, despite the societal tendency to view them, for many purposes, as a homogenous category. The Special Senate Committee on Aging, contemplating the diversity among older adults, commented as follows:

What is the common thread weaving through the lives of such diverse people? As a starting point, they are united by being in an age category which defines them as seniors. This categorization plays a large part in defining the roles they are expected to play in society. Too often, the categorization of “senior” overtly or subtly limits the horizons of the possible. This is ageism.[224]

The tendency to put an older person’s age first and foremost, and the corresponding inability to see older persons as individuals with widely varying life experiences, characters, likes and dislikes, hopes and fears, abilities and limitations, is perhaps the basis for all forms of ageism.  

We are people first, older adults second.

LCO Consultation Questionnaire Respondent

Academics have pointed out that categories, such as those based on age, are unavoidably homogenizing and foster tensions between social groups. As one writer describes it, “the prejudiced person exaggerates the extent to which members of the same group are similar to one another, and at the same time chooses to view people belonging to different groups as being very different”.[225] This leads to a perception that all older adults are the same and their older age is the most important of their attributes. The resultant assumptions and stereotypes may vary, from the image of all older adults as “wise elders” to, on the other end of the spectrum, images of older persons as uniformly frail, depressed and out-of-touch with contemporary society.  This frame of mind is most easily identified in the use of age-based categories in the law, an issue discussed at length in Chapter IV of this Report. 

Recognition of the diversity of older adults is therefore central to combating ageist attitudes and ideas.  

Older Adults as Capable of Growth, Change and Learning

The stereotype of older persons as living in the past, resistant to change and unwilling to learn new things surfaces most frequently in the employment context. The Expert Panel on Older Workers noted that employer attitudes may create significant barriers for older workers, in that employers may perceive older workers as less adaptable, less learning-oriented or less amenable to adopting and using new technologies.[226]

The Supreme Court of Canada decision in Stoffman v. Vancouver General Hospital reflected some of these stereotypes about older workers. In considering the Hospital’s policy requiring physicians to retire at age 65, the Court commented that

[the Hospital] cannot be said to have acted unreasonably in concluding that the retirement, as a matter of course, of those who had reached the age of 65 would ensure the departure from staff of those who would generally be less able to contribute to the hospital’s sophisticated practice.[227]  

The OHRC has pointed out that these kinds of assumptions are simply stereotypes: 

These ideas about older workers are simply myths that are not borne out by evidence. In fact, there is significant evidence that older workers: 

• are highly-productive, offering considerable on-the-job experience;
• do as well or better than younger workers on creativity, flexibility, information processing, accident rates, absenteeism and turnover;
• can learn as well as younger workers with appropriate training methods and environments; and
• do not fear change but rather fear discrimination.[228] 

The OHRC goes on to note that as aging is an individual experience, it is wiser to evaluate people individually, rather than on their chronological age. Generalizations about ability based on aging are likely to lead to error.  

It is important not to lump seniors into one category. Most have interests, like to be independent and appreciated for their individual qualities. Many are active volunteers. Seniors are survivors and have experienced varied situations. Their knowledge needs to be respected. However, they also need opportunities to learn new things.

LCO Consultation Questionnaire Respondent

  

Challenging Assumptions About Health and Ability Among Older Adults

Despite the fact that health and ability vary widely among older adults, and that most older adults are in fact in good mental and physical health, older adults are often assumed to be frail or incapable, whether physically or mentally. Social science researchers point to the prevalence of “elderspeak” in which older adults, regardless of levels of health and ability, are spoken to in a manner similar to that used with small children, and the widespread phenomenon of “overhelping” older adults who are quite capable of caring for themselves, as two instances of this type of ageist thinking.[229]  

It`s very annoying when people talk down to older persons; e.g., calling them ‘dear’. People should not assume an older person requires help either physically, ask them if they need or would like help, or mentally. Don’t assume they didn’t understand or can’t answer because they took longer to respond.

LCO Consultation Questionnaire Respondent

During the LCO’s consultations, many participants raised concerns about the tendency of service providers to assume incapacity on the part of the older person, and to defer to younger family members or even fail to address the older person at all. 

The assumption that older adults are necessarily limited in their health and abilities can lead to under-treatment for actual illnesses or health care needs. Health care providers may take the approach that “this is what can be expected at your age”, or that “nothing can be done”. Mental health issues among older adults may go untreated because depression and cognitive decline are considered to be a natural part of the aging process.[230]  

Similar issues have arisen in the context of the provision of legal services. Lawyers are not immune from the effect of stereotypes regarding older persons and these may shape the ways in which legal advice and representation is provided. Whether through law school courses or otherwise, there is a dearth of training or education for lawyers on serving older clients.[231] The Ontario Bar Association (OBA) notes that there are guidelines for practitioners serving older clients, but many of the guidelines are out of date, their availability is not known to those who need them and they are often not followed.[232] For example, ACE has received complaints about lawyers failing to consult with their (capable) older clients, and instead seeking instruction from the older adult’s friend or family member.[233] The OBA recommended that the LCO consider whether there should be a minimum level of training in age-related issues in professional curricula and the promulgation of guidelines within each health and legal profession to address age-related rights and services.

A study reviewing American guardianship, will and trust decisions found that, with surprising frequency, advanced age was treated as synonymous with cognitive decline and the need for guardianship.  In a number of decisions, advanced age was the only reason given for the imposition of guardianship or was one of the factors considered in determining undue influence in will and trust cases. The researcher also pointed to these attitudes as a reason for the underutilization of limited guardianship provisions: advocates assumed it would be a waste of time and effort to craft limited guardianship agreements since it was assumed that the client’s condition would inevitably deteriorate and require further action.[234] Similarly, the OBA, in its submission to the LCO’s preliminary consultation, highlighted concerns regarding Ontario’s capacity and guardianship regime as examples of ageism in the law. The OBA pointed, for example, to concerns about the extent to which stereotyping, as well as a lack of education and training among health professionals, contributes to a misunderstanding as to the definition of capacity.[235]  

In emphasizing the capabilities of older adults, it is important not to stigmatize or fail to consider those older adults who are living with disabilities or health deficits. Here, concerns regarding ageism must also incorporate an anti-ableist approach. The existence of impairments or disabilities among some older adults should not relegate these individuals to lower levels of respect and consideration, lead to blanket assumptions about what they can or cannot do, nor obscure their rights to have their autonomy, dignity and individuality recognized. Negative attitudes towards older persons on the basis of assumptions about their health and abilities are also ableist attitudes, and must be recognized and addressed as such. 

For this reason, some have expressed concerns about emerging stereotypes and social pressures regarding “good” and “bad” aging, in which a “good” older age is healthy, self-reliant and active, as opposed to a “bad” older age characterized by sickness, dependency and premature death. As one focus group participant commented, “There is a pressure to be healthy, active, financially secure – to ‘have the yacht’. If you don’t have all that, then it’s like you’re a failure”.[236] 

The biggest problem with stereotypes of good and bad old age is that they marginalize the most vulnerable older adults, those with the fewest personal and economic resources, who are particularly likely to be unattached, female, in precarious health, and to have limited support networks. Stereotypes of good and bad may further devalue and segregate these more marginalized older adults, reinforcing the social, economic, and cultural differences between those who do and those who do not “age well”.[237]

Valuing the Contributions of Older Adults  

Related to the belief that old age is inevitably associated with incapacity and decline is the attitude that older persons have nothing further to contribute, and that they do not, in fact, make any worthwhile contributions – they are simply waiting for death.

The obvious example, of course, is the exclusion of older persons from the market place, either formally, such as through mandatory retirement policies and the laws that upheld them, or informally, through age-based discrimination by employers. 

While older adults can and do make valued contributions in the workplace, it is also important not to focus on economic productivity as the sole source of human contribution or value. Humans contribute to their societies in many other ways, such as volunteering in the community, providing care for loved ones, giving emotional support to friends and families, and the provision of advice and mentoring based on wisdom and accumulated experience. According to Statistics Canada, a significant portion of older adults help others, and they do so in a variety of ways, whether it is helping persons living outside their home with domestic work, home maintenance or outdoor work, providing childcare to family members, teaching and giving practical advice, or giving emotional support.[238] 

As our society ages, it is vital that all citizens, especially the elderly, are treated with respect, with dignity … Those of us who have retired have not withered away, but are a vital part of society with a vast wealth of experience and knowledge to pass on to the younger members of our society, even if we can’t come up with all of the advances in technology!

LCO Consultation Questionnaire Respondent

Even the non-economic contributions of older adults are often devalued, however. An example is a British Columbia case where a 77-year-old woman died due to the negligence of a nursing aide. The court declined to award damages to her children for loss of care and companionship on the basis that “their mother had long since ceased to be a companion for she had been physically, mentally and emotionally incapacitated for a considerable time before her death”.[239]  

Older Adults as Active Participants in Their Own Lives and Communities

Older adults are often conceived of as dependents, and as passive recipients of services. As noted above, discussions of Canada’s aging demographics frequently characterize this trend as a crisis and a burden, focusing on concerns regarding the costs of increased health care and social service entitlements.  

Older people are on a lifelong continuum of participation in the community and their contribution and participation does not diminish in importance as they age. They are part of the circle (cycle) of life and their needs must be considered to be important as those for all other ages and stages.

LCO Consultation Questionnaire Respondent

As a result of this mindset, the social and economic contributions made by older adults often go unrecognized. For example, discussions of caregiving needs often focus on older persons solely as recipients of care and consider how the “sandwich generation” can be better supported to provide eldercare. This is certainly a need and is an important issue. However, the role of older persons in providing care for others – whether for their aging spouses, for their adult sons and daughters with disabilities, or as primary caregivers for their grandchildren receives considerably less attention and discussion. Supports are inadequate for all caregivers; however, older caregivers are particularly invisible in these discussions. For example, despite the importance of the relationships between grandparents and grandchildren, grandparents may find themselves in a precarious situation and without legal status regarding access to their grandchildren upon the breakdown of the parent’s marriage.[240] Similarly, approximately 20,000 Ontario children are currently being cared for by their grandparents. Close to half of these caregivers are single grandmothers, and approximately one-third of these families are living in poverty. These grandparents have raised concerns regarding the lack of social supports and legal protections for their unique circumstances.[241] 

 

4.               Manifestations of Ageism

Negative attitudes towards older adults may be manifested in a variety of ways. The most commonly identified are invisibility and paternalism. 

Invisibility

Some social scientists have put forward the theory that ageism has its source in the natural human fear of our own deaths and physical frailty. Older persons are direct reminders of our own mortality. As one writer puts it,  

[a]geism exists precisely because elderly people represent our future in which death is certain, physical deterioration probable, and the loss of current self-worth-enhancing characteristics a distinct possibility.[242]

In a society that places great value on youthful looks, mental agility, competence, strength and quickness, the association of older persons with decline leads to distancing from and negative attitudes towards older persons.

Because older people tend to be associated with death, younger persons may adopt ageist attitudes and behaviors to distance themselves from older people. This may include blaming the older person for their state (e.g., external indicators of aging). Doing this may allow the younger person to deny the reality that they too will eventually become part of that outgroup.[243]

One of the most common forms of discrimination against older adults is social exclusion. Age discrimination and, in the past, mandatory retirement policies, have led to the exclusion of older adults from the workplace. Frequently, older adults are hived off into separate living spaces. Professionals like health care workers or lawyers are unlikely to choose to specialize in working with older persons: although geriatrics is a recognized medical specialty, there is an ongoing shortage of qualified professionals, and in Canada, elder law is a fledgling area. Service providers tend to spend less time with and overlook the needs of older persons. In this way, older persons become in many ways invisible.[244]

Too often elder people are removed from the general population, either in adult or seniors residences and communities or in nursing homes, and as such can be more easily forgotten by the public at large.

LCO Consultation Questionnaire Respondent

This exclusion has wide-ranging consequences for older adults. As one article has argued in the context of disability rights, invisibility can have a dramatic impact on the ability to access and enjoy civil and political rights, and on social policy:

To sum up, the relative or absolute invisibility of persons with disabilities has meant that the legal structures created to advance private freedom (protection against the abuse of power) and public freedom (participation in the mainstream) have either not been applied or have been applied with less rigour in the case of persons with disabilities.

This has produced a category of person who, while being dependent on the public sphere for survival, lacks access to or influence over public policy. Such persons are denied full admission to public power and full control over their individual destiny. They remain outside the mainstream of society. This lack of presence – or invisibility – serves to reinforce stereotypical assumption about persons with disabilities. It encourages a lack of respect for people with disabilities as rights holders on an equal footing with others.[245]

The authors go on to suggest that the human rights movement be conceptualized as a “visibility project”. While the issues for older adults and for persons with disabilities diverge in many ways, this perception about the effects of invisibility on the ability to fully participate in the community and to claim rights is equally applicable to older adults, particularly for those who have withdrawn from the workforce, have significant health or ability limitations, or are living in congregate settings where they are often physically as well as psychologically removed from the mainstream.

Paternalism

Philosopher Gerald Dworkin defines paternalism as follows:

When [rules, policies and actions] are justified solely on the grounds that the person affected would be better off, or would be less harmed, as a result of the rule, policy, etc., and the person in question would prefer not to be treated this way, we have an instance of paternalism.[246]

The concept of paternalism raises questions about individual autonomy and its limits, respect for personhood, and the tradeoffs between regard for the welfare of others and regard for their right to choose for themselves. Some may consider paternalism necessary or justified where the persons in question have limitations in their rationality and questions are raised about their ability to exercise their autonomy.

I think at times others try to do too much to help, and as a result one occasionally feels useless.

LCO Consultation Questionnaire Respondent

As it applies to older persons, paternalism may often manifest in the removal of decision-making opportunities for older persons under the guise of protecting their “best interests”. Older persons may be assumed to be less capable of exercising their autonomy, and in greater need of protection.  

Paternalism towards older persons as a group is therefore based on the stereotype of older persons as vulnerable, incompetent and declining. 

This type of paternalism is linked to what some call “compassionate ageism”.  This type of ageism takes the form of trying to protect older persons from harm and to improve their lives. While this conjunction of paternalism and benefits may respond to the needs of some older adults, this kind of ageism, like any other, may damage older persons by removing their opportunities for self-determination and undermining their dignity.[247] 

The prevalence of paternalistic views towards older persons is the reason why older adults and their advocates generally place independence and autonomy at the centre of any approach to law and policy relating to older persons. ACE states that 

[i]t is the opinion of ACE that the overarching principle that should guide the law as it affects older adults is that seniors are people. They are presumed to be capable of making decisions and they have the right to make foolish decisions, if they so choose. The government must be careful not to create laws, in its overzealousness to protect so-called vulnerable older adults, which actually limit their rights.[248]

 

B.    Developing Principles for an Anti-Ageist Approach

1.               The Value of Principles in an Anti-Ageist Approach

Given the pervasiveness of stereotypes and negative attitudes regarding older adults and their negative impact on this group, the MIPAA recommends that states should:

Develop and promote a policy framework in which there is an individual and collective responsibility to recognize the past and present contributions of older persons, seeking to counteract perceived biases and myths and, consequently, to treat older persons with respect and gratitude, dignity and sensitivity.[249] 

In its 2008 submission to the LCO, CARP pointed out that all principles must be considered and interpreted in light of the larger goal of developing an anti-ageist approach to the law:

We strongly endorse all the principles outlined by the Commission. While slightly different, they do not differ in substance. The important issue is what goal the principles serve. The common thread through all the stated principles is anti-ageism. The principles embraced in law should be conducive to people living active, independent and purposeful lives as they age without having to face legal and social barriers as they age.[250]  

In developing its policy framework, the LCO has therefore adopted a principles-based approach grounded in a set of principles that can be applied to counteract negative stereotypes and assumptions; reaffirm the status of older persons as equal citizens and bearers of both rights and responsibilities; and that encourages the government to take positive steps to secure the well-being of older adults.  

Such an approach builds on the work already done at the domestic and international level, through policy documents such as the NFA and the IPOP. As a foundation for an approach to the law, a principles-based approach is grounded in the values underlying the Charter of Rights and Freedoms and human rights law.   

Based on the preceding section of this Chapter, in identifying and interpreting principles for the law as it affects older adults, consideration must be given to how the principles can promote valuing the worth, contributions, abilities, diversity and participation of older adults.  

Building on the analysis in Chapter II, it is the LCO’s view that a framework of principles must be flexible enough to take into account the evolving circumstances of older adults themselves, and be interpreted in such a way as to incorporate the voices and experiences of older adults themselves.

 

2.               Sources for the LCO’s Principles

The LCO has reviewed existing international and domestic policy and legal frameworks to identify key principles and how they have been interpreted in various settings. This section provides a brief introduction to the most important of these source documents.  

It is important to note that while most of these sources are not legally binding on Canadians, they were created through extensive research and consultation with older adults and the organizations that represent them, and so have significant persuasive value.  

International Documents

In addition to numerous international instruments setting out broadly based rights and principles, such as the International Covenant on Social, Economic and Cultural Rights[251] and the International Covenant on Civil and Political Rights,[252] there are a significant number of international documents devoted specifically to the rights and needs of older persons. A Draft Resolution on a Declaration of Old Age Rights was developed as early as 1948. Beginning in the 1980s, there has been considerable work done to develop and implement an international plan of action on aging, with a first plan developed through the first World Assembly on Ageing[253] in Vienna in 1982, and a second plan put forward through the second World Assembly on Ageing in Madrid in 2002. There have been numerous General Assembly Resolutions related to the implementation of these action plans, and a variety of other documents developed in support. The most relevant of these international documents are described below.  

United Nations International Principles for Older Persons (IPOP) (1991)

Perhaps the most important of the international documents related to older persons, is the IPOP.[254] These were adopted in 1991, pursuant to the United Nations International Plan of Action on Ageing.[255] The IPOP do not have the same status as a Convention: they are not ratified by states and do not impose obligations. However, the principles identified in the IPOP provide a broad and general framework of principles that are applicable across a wide range of cultures and circumstances, and that can guide states in their policy and program development.  

The IPOP are based on the recognition of

• the contribution of older persons to their societies;
• the fundamental worth and dignity of all persons, as articulated in the various human rights documents of the United Nations;
• the diversity of older persons, which requires a variety of policy responses;
• the unwarranted stereotypes regarding their capacities and abilities to which older persons are subject; and
• the strains on family life which may arise on those providing care to frail older persons.

The IPOP adopts and elaborates on five principles: independence, participation, care, self-fulfillment and dignity.  

 

Madrid International Plan of Action on Ageing (MIPPA) (2002)

The MIPAA[256] arose from the Second World Assembly on Ageing, a follow-up and re-evaluation of the outcomes of the 1982 Assembly in Vienna. MIPAA calls for changes for attitudes, policies and practices in all sectors so that the potential of an aging society may be achieved. It identifies a number of central themes, including 

• the full realization of all human rights and fundamental freedoms of older persons;
• the achievement of secure aging, which involves eradication of poverty in old age;
• empowerment of older persons to fully and effectively participate in the economic, social and political lives of their societies;
• provision of opportunities for individual development, self-fulfillment and wellness throughout life, including in later life;
• ensuring the enjoyment of economic, social, cultural, civil and political rights;
• recognition of the crucial importance of families and intergenerational interdependence; and
• provision of health care, support and social protection for older persons.  

MIPAA emphasizes the importance of mainstreaming aging into policy and program agendas, and linking aging to frameworks for social and economic development and human rights. Three priority directions are identified: ensuring that older persons are full participants in the development process and share in its benefits; advancing health and well-being into old age; and ensuring enabling and supportive environments.

 

World Health Organization (WHO) Active Ageing Policy Framework (2002)

The WHO developed its policy framework on active aging as its contribution to the 2002 Madrid International Assembly on Ageing, at which MIPAA was developed. Through this framework, the WHO adopted a vision of “active ageing”, which it defined as “the process of optimizing opportunities for health, participation and security in order to enhance quality of life as people age”. The WHO states 

[a]ctive ageing … allows people to realize their potential for physical, social and mental well-being throughout the life course and to participate in society according to their needs, desires and capacities, while providing them with adequate protection, security and care when they require assistance. [257] 

The WHO framework shifts away from a needs-based approach, which assumes that older persons are passive targets, to a rights-based approach that recognizes the rights of people to equality of opportunity and treatment in all aspects of life as they grow older. 

It also adopts a life course perspective on aging, recognizing that older people are not one homogeneous group, and that individual diversity tends to increase with age.

 

The Charter of Rights and Freedoms  and Human Rights Laws

The specific provisions of the Charter and the Ontario Human Rights Code that are particularly relevant to the law as it affects older adults are discussed at some length in Chapter IV of this Report.  

As well as their specific legal import, the Charter and the Code are important expressions of values and principles which may help to shape an approach to the law as it affects older adults. The discussion in this section focuses on the Charter and the Code as sources of potential principles for the law as it affects older adults, leaving other issues for later discussion.

 

The Canadian Charter of Rights and Freedoms 

The Charter rights most important to the identification of principles for the law as it affects older adults are those set out in sections 7 and 15.

Section 15(1) of the Charter provides for equality before and under the law, and for equal protection of the law without discrimination on the basis of a number of enumerated grounds, including age, sex, physical or mental disability, religion, colour, race and national or ethnic origin. Section 15(2) of the Charter shields laws, programs and activities that aim to ameliorate the conditions of disadvantaged groups or individuals, including those experiencing disadvantage due to their age”As a whole, section 15 promotes a vision of substantive equality, as briefly discussed in Chapter II of this Report. In R. v. Kapp, a decision interpreting section 15(2), the Supreme Court of Canada stated that, “Section 15(1) and 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole.” [258] In the Supreme Court’s interpretation of section 15 and the right to equality, the principle of dignity has played an important role. This role reached its highwater mark in Law v. Canada, but following the decision of the Supreme Court in Kapp, it has had a less predominant place in equality rights analysis, reflecting concerns that the principle had become a hurdle to applicants.[259]  The Supreme Court in Kapp reaffirmed, however, that “there can be no doubt that human dignity is an essential value underlying the section 15 equality guarantee. In fact, the protection of all the rights guaranteed by the Charter has as its lodestar the protection of human dignity.” The principle of dignity means that the affected individual or group feels self-respect and self-worth, and is concerned with physical and psychological integrity and empowerment.[260]  

Section 7 of the Charter guarantees the life, liberty and security of the person, and the right not to be deprived of these except in accordance with the principles of fundamental justice. The right to liberty has been interpreted as including the right to make fundamental personal decisions, as well as freedom from physical constraint and interference with physical freedom.  Liberty includes the right to an irreducible sphere of personal autonomy regarding matters that “can properly be characterized as fundamentally or inherently personal such that, by their very nature, they might implicate basic choices going to the core of what it means to enjoy individual dignity and independence.”[261]  Within that sphere, individual choices must be free from state interference.  Security of the person has been interpreted by the Supreme Court of Canada as including an individual’s “psychological integrity”[262] where the interference is sufficiently serious. 

 

The Ontario Human Rights Code

The purpose of the Ontario Human Rights Code, as expressed in its Preamble, is to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.[263] 

The Code prohibits discrimination on the basis of age, as well as of sex, sexual orientation, disability, family and marital status, race, ethnicity, place of origin, and several other grounds. Where it is necessary in order to ensure equal treatment without discrimination on the basis of age, older persons have the right to accommodation up to the point of undue hardship for needs associated with their older age.  These rights extend to the social areas of employment, housing, goods and services, professional and occupational associations, and contracts. Like the Charter, the Code permits special programs to alleviate hardship or economic disadvantage or that are designed to assist individuals or groups to attempt to achieve equal opportunity.[264] 

The OHRC has broad powers to advance the purposes of the Code as expressed in the Preamble. These powers include the ability to develop statements of policy, interpreting the provisions of the Code. The OHRC has developed a Policy on Discrimination against Older Persons because of Age,[265] which was released in 2002 and updated in 2007. The Policy outlines a principled analysis of the  application of human rights protections related to older age. Based on its research and public consultation, the OHRC adopted the principles of the NFA as part of its policy analysis. It harmonized these with the fundamental human rights principles of dignity, participation and inclusion, and individualization. The Policy emphasized an anti-ageist approach to human rights, and adopted an intersectional approach to the diversity among older adults. 

Domestic Policy Frameworks

National Framework on Aging (NFA) (1998) and Seniors’ Policy Handbook

The NFA[266] was released in 1998, and updated in 2009 through the Seniors’ Policy Handbook.[267] It was a joint product of the Federal/Provincial/Territorial Ministers Responsible for Seniors (with the exception of Quebec, which supported the Vision and Principles, but which intended to assume full responsibility for the entire range of activities relating to health and social services). This voluntary framework was intended to assist governments in responding to the needs of seniors. It was based on extensive public consultation. At the core of the NFA is this vision: “Canada, a society for all ages, promotes the well-being and contributions of older people in all aspects of life”.  The NFA adopted five interrelated principles with which to guide actions to achieve the vision: dignity, independence, participation, fairness and security.

 

Senate Special Committee Report on Aging (2009)

In 2006, the Canadian Senate struck a Special Senate Committee on Aging. The mandate of the Committee was to review a wide range of issues, with the purpose of determining whether Canada is providing the right programs and services at the right time to the individuals who need them. The Committee reviewed public programs and services for older adults, identified gaps, and examined the service delivery implications of an aging population. The Committee released its final report in the spring of 2009.[268] In addition to making numerous specific recommendations with respect to policy and program options and implementation, the Committee emphasized the importance of the following: recognizing the place of older adults as active and engaged citizens; affording older adults the opportunity to age in place; placing as much importance on adding life to years as on adding years to life; and recognizing the aging population as an opportunity for Canada.

 

Health Equity Impact Assessment Tool (HEIA) (2011) 

This tool was developed by the Ministry of Health and Long-Term Care in collaboration with Ontario’s Local Health Integration Networks as a means of supporting improved health equity and reducing avoidable health disparities between population groups. It provides a step-by-step approach to analyzing how a particular program or policy may affect population groups in different ways.[269] 

Reports on Specific Issues

There are, of course, a plethora of reports and policy initiatives addressing specific issues related to older adults. Particularly interesting for the purposes of this Project is the Seniors’ Mental Health Policy Lens that was developed for the British Columbia Psychogeriatric Association.[270] The Lens is intended to guide analyses of current and planned policies and programs from a seniors’ mental health perspective. It is designed to identify ageist biases in policy that may result in negative impacts on the mental health of older adults, and to foster a social, rather than biomedical, model of care. It is based on older adults’ perspectives and values about their mental health. The Lens identifies 10 factors to consider when developing or evaluating policies relating to the mental health of older adults, including process factors (such as whether the program or policy was developed in a collaborative and participatory fashion), diversity, recognition of the multiple determinants of health, accessibility, promotion of participation and relationships, independence, security, dignity, fairness, and a life course analysis. 

This Lens was adapted to create the Prevention of Elder Abuse Policy and Program Lens,[271] which was developed by the Prevention of Elder Abuse Working Group in partnership with the Ontario Seniors’ Secretariat and the Elder Health Coalition. The intent of the Lens is to strengthen the capacity of government, non-government organizations and service providers to prevent, detect and respond to elder abuse. The Lens adopts eight guiding principles: collaboration between the full range of stakeholders and persons affected by any policies, programs or practices that are developed or implemented; consideration of the specific needs of marginalized/vulnerable subgroups among older adults; accessibility; social inclusiveness; independence and self-determination; respect and dignity; fairness and equity; and security, meaning the reduction of the susceptibility of older adults to risk, danger, doubt, anxiety and fear.[272]

Substantive Equality as an Underlying Value for the Framework

Equality is identified as a value or a principle in some of the documents discussed above. In particular, equality and non-discrimination are central to the Charter and to the Ontario Human Rights Code.  

Rather than identifying equality as a discrete principle, the LCO has concluded that substantive equality is more appropriately described as “an underlying value” or a goal that observance of the principles will advance and that should influence the interpretation of the principles. As such, the advancement of substantive equality is the overarching aim of the Framework in its entirety.  

The interpretation of the concept of equality is subject to on-going debate and discussion and the case law relating to equality continues to evolve.  

“Equality” is often linked with “non-discrimination” and in certain respects they are intended to achieve similar results. Anti-discrimination theory has become intertwined with the notion of equality, and as a result even the broader “equality” tends to carry with it the notion that particular groups (and not necessarily others) have been treated unequally and deserve to be treated equally. There is a major difference between the two, however. “Non-discrimination” requires a comparison with others who do not share distinctive characteristics with a person denied a benefit or opportunity, for example. There is an implicit assumption that the way the comparator group is treated or the opportunities available to the comparator group is the standard to meet. Both the claimant and the comparator group might be treated “badly”, but nonetheless equally and without discrimination, even though the way they are treated is at a low standard. Accordingly, governments required to extend benefits to a group previously excluded because the exclusion constitutes discrimination can decide not to provide the benefit rather than extend it. 

Following Supreme Court of Canada jurisprudence, the LCO’s approach to the concept of equality is substantive, rather than formal. The Supreme Court of Canada, in a recent case dealing with age-based criteria, stated that 

Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment.  It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.[273]  

Substantive equality requires government and private actors to take the steps necessary to advance access by all citizens to benefits, supports, programs, goods and services in a way that is responsive to their particular needs. Its goal might also be thought of as full “social citizenship” in society. It incorporates but is not limited to non-discrimination, meaning that no distinctions are imposed upon disadvantaged persons that, in purpose or effect, withhold or restrict access to opportunities, benefits or protection from the law, or impose burdens, obligations, or disadvantages that are not imposed on others. It also means, however, that older persons are not defined by their age, but are recognized as members of society who are able to make contributions and have obligations, as do other members. Substantive equality is about intangible concepts such as dignity and worth, but also about concrete opportunities to participate, have needs taken into account and have society and its structures and organizations develop in a way that does not treat older persons as outside mainstream society.  

In this way, an anti-ageist approach is a tool for advancing substantive equality in the law.

 

4.               Principles Adopted by the LCO

Based on its research and consultations, the LCO has adopted the following six principles for its framework for the law as it affects older adults, each of which is considered in some detail below: 

1. Respecting dignity and worth;
2. Fostering independence and autonomy;
3. Promoting participation and inclusion;
4. Recognizing the importance of security;
5. Responding to diversity and individuality; and
6. Understanding membership in the broader community. 

The six principles are dealt with separately below. However, to some degree, the separation of these principles is artificial. To a significant extent, the principles are inter-related, in the sense that, for example, autonomy is often considered a component of dignity. Further, the principles are interdependent: for example, independence is predicated on a minimal level of security, and older adults who do not have sufficient autonomy to be able to make their own choices and to advocate for themselves are at risk of losing their security. For example, one group of focus group participants connected the ability to participate in the community with the level of dignity and respect accorded older adults in that area: 

There are so many people  of different [older] ages that are involved in so much work here, which is volunteer, because there aren’t enough people to do everything in this town that we are looked on as necessary people, but also we contribute an enormous amount of work that could not be done without us. We are contributing. The fact that there are so many volunteers helps them to integrate and find friends. It’s a really good thing.

LCO Focus Group, Rural Older Adults, November 16, 2011

  

Respecting Dignity and Worth

Dignity is identified as a key principle for older persons in several source documents, including the IPOP and the NFA. It is also at the core of values incorporated into the Ontario Human Rights Code and the Charter. The Preamble of the Code states that its purpose is to “recognize the inherent dignity and worth of every person”.[274] In Miron v. Trudel the Supreme Court stated that the purpose of section 15 of the Charter is “to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity or circumstance”.[275] Although the concept of dignity has a core role within all of these source documents, there is considerable variance in how they define it.  

The IPOP identify two key aspects to the principle of dignity:

1. the ability to live in security and free from exploitation and abuse, and
2. fair treatment regardless of age, disability, ethnicity, gender, race or other status. 

The NFA takes a different approach, identifying as core aspects of dignity the right to be treated with respect as a worthy human being and accepted as one is, regardless of one’s status, and the right to be appreciated for one’s contributions. 

The OHRC has adopted a very broad definition of dignity, which bears some resemblance to that of the NFA:

Human dignity encompasses individual self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. It is harmed when individuals are marginalized, stigmatized, ignored or devalued. Privacy, confidentiality, comfort, autonomy, individuality and self-esteem are important factors as well… [276] 

The Canadian Association of Community Living, in its 2008 submission to the LCO, forcefully argued for the approach to dignity adopted by the NFA and the OHRC, in which dignity is associated with the very nature of humanity, and is inherent, inalienable, and equal for all humans regardless of their status: 

• All members of the human family are full persons. Our human essence cannot be reduced to words, labels, categories, definitions or genetic patterns.  Every person is unique.  No one can be replaced or copied. All persons are ineffable.
• All persons are entitled to respect. Respect requires recognition of and concern for the dignity of every person.  Dignity is fragile. It must be protected from all harm.
• All persons have inherent dignity.  Dignity belongs to us just because we exist.  It is not something we earn or receive.
• All persons have inalienable dignity. Dignity cannot rightfully be ignored, diminished or taken away. 
• All persons have equal dignity.  Dignity does not depend upon physical, intellectual or other characteristics.  Neither does it depend upon the opinions that other people have about these characteristics.
• All persons have inherent and equal worth. Our value as persons is neither earned nor accumulated.  It is unrelated to health status or any genetic or other personal characteristic.
• All persons have inherent capacity for growth and expression. Every person has the right to be nourished physically, intellectually, socially, emotionally and spiritually.
• All persons are entitled to equal access and opportunity.  Equality demands protection from all forms of discrimination or harm, and access to the supports necessary to enable equal participation.[277]

This notion of dignity, ascribing a unique moral worth to human beings by virtue of their simple humanity is an old one, and is often raised as a contrast to an approach to dignity that is founded on the capacity for rationality and autonomy (as is discussed in the following section on the principle of independence and autonomy).  

The notion of dignity as connected to independence and autonomy appears in human rights policy as the principle of the “dignity of risk”. This notion of “dignity of risk” has developed in the context of disability rights, and asserts that persons with disabilities have some right to choose to assume risks in order to maximize their opportunities and options.  

People who are not diagnosed [with a psychosocial disability] have the “right” to make risky and potentially self-defeating choices without intervention from authorities, clinicians or service providers wishing to protect them from the consequences of their choices.  The concept of the dignity of risk acknowledges the fact that accompanying every endeavour is the element of risk and that every opportunity for growth carries with it the potential for failure. All people learn through a process of trial and error. We learn through taking risks and trying new things and we often learn as much from our mistakes as we do from our successes. When people living with a mental illness are denied the dignity of risk, they are being denied the opportunity to learn and recover.[278]

The concept of “dignity of risk” has had some application as a principle of disability law. Where a disability-related accommodation creates health and safety risks, whether to the person with a disability, or to others, the Code specifies that this may amount to “undue hardship”. Employers, landlords and service providers are not required to implement accommodations that will result in undue health and safety risks. However, the OHRC Policy and Guidelines on Disability and the Duty to Accommodate asserts that in some cases, where making an accommodation to permit a person with a disability to participate will result in some risks to the safety of that person, the person with a disability may have a right to assume the risk to themselves in the pursuit of equality.[279]  For example, the Ontario Human Rights Tribunal, in Turnbull v. Famous Players Inc., upheld the right of persons who use wheelchairs to assume some reasonable risks to their own safety (for example, those associated with being carried up and down stairs) associated with attending movies in a non-accessible building, so long as they were fully informed regarding those risks.[280] 

As noted above, the principle of dignity plays a considerable role in the interpretation of the equality rights provision of the Charter, reaching its highwater mark in the decision of the Supreme Court in Law v. Canada,[281] where the Court gave a central place to dignity in the equality rights analysis – an approach since modified in R. v. Kapp.[282] Importantly, the Law v. Canada case dealt with an age-based distinction under the CPP, in which survivor benefits were denied to able-bodied surviving spouses under the age of 35 who were without dependent children. The Court found that while these provisions did create differential treatment, they did not violate human dignity, and therefore were not discriminatory. 

While autonomy and independence are essential to an anti-ageist approach to the law as it affects older adults, the LCO will consider autonomy and independence as a separate principle, rather than subsuming them into the principle of dignity and respect. To conflate the two risks making respect for the dignity of older persons contingent on their ability to exercise their independence, thereby potentially eroding respect for some older adults. The focus of the LCO’s approach to dignity will be on the inherent worth of older adults, and respect for the range of contributions that they make. Thus conceived, the principle addresses ageist notions of older adults as burdens and old age as a time of decline. 

The LCO adopts the following definition of the principle of dignity and respect:

This principle recognizes the inherent, equal and inalienable worth of every individual, including every older adult. All members of the human family are full persons, unique and irreplaceable. The principle therefore includes the right to be valued, respected and considered, to have both one’s contributions and one’s needs recognized, and to be treated as an individual. It includes a right to be treated equally and without discrimination. 

 

Fostering Independence and Autonomy

The principle of independence and autonomy is widely accepted as a foundation for policy related to older adults. It is adopted by the NFA and the United Nations IPOP.  The WHO’s Active Ageing Policy Framework emphasizes that “Maintaining autonomy and independence as one grows older is a key goal for both individuals and policy makers”.[283]

The centrality of independence and autonomy to policy frameworks relating to aging is a response to the persistent paternalism towards older persons, and the stereotypes and assumptions associated with aging. The view that older persons are incapable of managing their own affairs and of contributing to society, that they are naturally dependent on others for care and support, that they must be protected in their own “best interests” – these attitudes, and the social structures that are based on them, have created significant barriers to the ability of older persons to remain engaged in the labour force, to make choices about their own living arrangements and health decisions, and to have their contributions recognized. The principle of independence and autonomy is therefore central to advancing substantive equality through law and policy. 

The content of this principle, however, differs somewhat depending on the context in which it is used. For example, the NFA defines independence as 

[b]eing in control of one’s life, being able to do as much for oneself as possible and making one’s own choices e.g., decisions on daily matters; being responsible, to the extent possible and practical, for things that affect one; having freedom to make decisions about how one will live one’s life; enjoying access to a support system that enables freedom of choice and self-determination.  

On the other hand, the IPOP focus on functional indicators of independence: access to adequate food, water, shelter and clothing; opportunity to work or generate income; ability to participate in decisions about withdrawal from the workforce; access to appropriate training and education programs; and ability to reside in their homes in the community as long as possible. 

These two approaches to a definition of independence point to two key facets to this principle. These are reflected in the distinction that the WHO makes between the terms “independence” and “autonomy”. The WHO defines these the two terms as follows:[284] 

Autonomy is the perceived ability to control, cope with and make personal decisions about how one lives on a day-to-day basis, according to one’s own rules and preferences.

Independence is commonly understood as the ability to perform functions related to daily living – i.e., the capacity of living independently in the community with no and/or little help from others. 

The first aspect – the aspect that the WHO refers to as autonomy – is the notion that individuals have the right to make choices about their own lives. This notion is sometimes tied, in a line of thought which may be traced back to Kant, to the nature of human dignity. Rationality and autonomy, in this approach, are the basis for a capacity-oriented, individualist “dignity as self-possession”.[285] 

The Charter provides some recognition and protection for individual autonomy. Section 7 of the Charter protects the “life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There has been some division of opinion on the scope of “liberty” under the Charter, with some advancing the position that liberty includes only freedom from physical restraint by the state, and others advancing the notion that liberty includes the right to make fundamental personal decisions without state interference.[286] The latter view was adopted by the majority of the Supreme Court in Blencoe v. British Columbia, in which the Court included the “right to make fundamental personal choices free of state interference” in section 7.[287] In R. v. Clay, in which the Supreme Court rejected a challenge from a recreational marijuana smoker, the Court stated that: 

[T]he liberty right within s. 7 is thought to touch the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can properly be characterized as fundamentally or inherently personal.[288] 

It is not clear, however, the degree to which this Charter right to personal autonomy extends outside the administration of justice.[289]  

The second facet of the principle – that of independence –  relates to the kind of life that may be led – to the ability, not only to choose for oneself, but to do for oneself. This may mean, for example, the opportunity to earn one’s own living, or to live on one’s own in the community. In this sense, the principle of independence is closely related to the principle of security, since, for example, without basic economic security, one may not be able to aspire to live in an independent fashion. 

The two facets are of course, closely allied, as both rely on notions of control over one’s own destiny. The International Federation on Ageing’s Declaration on Rights and Responsibilities of Older Persons balances both approaches in its interpretation of the principle of independence. For example, in the area of employment, the principle of independence requires both the right “to work and to pursue other income-generating opportunities with no barriers based on age” and the right to “retire and participate in determining when and at what pace withdrawal from the labor force takes place.” In terms of education, the principle of independence includes the right to “access educational and training programs to enhance literacy, facilitate employment and permit informed planning and decision-making.” That is, access to education is important in its own right as part of the ability to live as one chooses, but also important insofar as it enhances the ability to make choices.[290] 

This points to something important: a precondition to the exercise of autonomy is access to the information necessary to make meaningful choices. This is also relevant to the principle of participation and inclusion, discussed below. The MIPAA identifies access to knowledge, education and training as a “crucial basis for an active and fulfilling life” and as a key policy priority in the area of aging.[291]

The NFA approach to independence touches upon an interesting point: in some cases, independence can only, or can best, be achieved with support from others. For example, persons whose cognitive functioning has diminished due to age-related diseases such as Alzheimer’s may lose the capacity to independently make some types of decisions. However, advocates of supported decision-making frameworks point out that, with decision-making supports, these persons may continue to exercise their autonomy. Similarly, persons with mobility or sensory disabilities may find it increasingly difficult to age at home and in their communities as they begin to require assistance with household tasks or personal care. However, the provision of assistive services may enable these persons to continue to live on their own in their communities.

Legal scholar Martha Fineman argues that we must understand the concept of autonomy in the broader context of a vision of substantive equality:

[W]e must begin to think of autonomy as possible only in conjunction with the meaningful and widespread attainment of equality. For example, some degree of equalization of resources, so that there is a floor below which no citizen shall fall, would seem to be a prerequisite for the achievement of autonomy … Autonomy in this sense concedes that all individuals have an inherent dependence on society. While some, having benefited from history and circumstances, may have the current means and methods that make it fair to expect them to achieve autonomy, others have been disadvantaged and are thus deserving of some compensatory or supplementary social support.[292] 

The LCO approach to this principle includes both the concept of independence and that of autonomy, as well as the recognition that independence and autonomy are realized in a social context, and their exercise may require support from, or benefit from others. 

The LCO adopts the following definition of the principle of independence and autonomy, noting that it applies to all spheres of life, including rights to meaningful opportunities to work, to age in place, to access education and training and engage in other spheres of activity:

This principle recognizes the right of older persons to make choices for themselves, based on the presumption of ability and the recognition of the legitimacy of choice.  It further recognizes the right of older persons to do as much for themselves as possible. The achievement of this principle may require measures to enhance capacity to make choices and to do for oneself, including the provision of appropriate supports. 

Promoting Participation and Inclusion

The principle of participation and inclusion responds to the pervasive exclusion of older adults, and has several elements. 

The first element, identified in the IPOP and the NFA is the right of older adults to be consulted on issues that affect their well-being. In their 2008 submission to the LCO, Canadian Pensioners Concerned stated: 

We support the principles cited in the United Nations Principles for Older Persons (1991), the Canadian National Framework on Ageing, and the goals set out by the World Health Organization in its Active Ageing Policy Framework. However, we have a particular concern that, despite these excellent principles and goals, older persons are rarely engaged in planning public policies or programs or changes to the law.[293]  

Representation and inclusion in the law and policy-making process was a key theme in the LCO’s focus groups and in responses to the consultation questionnaires. 

What I’ve got to say is that the people that make the laws are generally much younger than we are. They have no idea of the type of life and problems that we go through, nor do they consider the amount of funding that needs to be in this growing population. And the problem is getting worse, but it’s the legislation, the legislators that have to be told about where they will be in 30 or 40 years and all of the problems that go with it.

LCO Focus Group, Older Adults in Long-Term Care, October 31, 2011

 

The MIPAA sets out three actions that are necessary to the fulfillment of this element of the principle of participation: 

• taking into account the needs of older persons in decision-making at all levels;
• encouraging the development of organizations of older persons to represent older persons in decision-making; and
• taking measures to enable the full and equal participation of older persons, particularly older women, in decision-making at all levels.[294]

This list highlights that this element of the principle of participation has a political component, insofar as it seeks to encourage the active participation of older persons in advocacy organizations and in government decision-making processes. For example, several participants in the LCO’s consultations spoke highly of the effects of the Residents’ Councils in long-term care homes, both on the ability of these older adults to have a say in the running of their homes, but also in terms of the well-being of participants:

If I was home in my condition, I would be house-bound, whereas I’m socializing, I’m on Council , I’m getting involved with the other residents and it’s a good feeling when you see the smiles on their faces or families coming up and saying thank-you. That’s worth a lot.

LCO Focus Group, Residents of Long-Term Care Homes, October 31, 2011

A second element is the right to be included in the mainstream of society and to have society’s policies, programs and structures designed in a way that takes into account and includes the needs and experiences of older persons. This element finds a strong basis in human rights laws. The OHRC’s Policy highlights the need to structure society to promote inclusivity and participation: 

The Commission has defined “ageism” to mean, in part, “a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons”.  Ageism occurs when planning and design choices do not reflect the circumstances of all age groups to the greatest extent possible. The Supreme Court of Canada has recently made it clear that society must be designed to be inclusive of all persons. It is no longer acceptable to structure systems in a way that assumes that everyone is young and then to try to accommodate those who do not fit this assumption. Rather, the age diversity that exists in society should be reflected in the design stages so that physical, attitudinal and systemic barriers are not created.[295]

The Supreme Court has made the principle of inclusion by design a central aspect of its approach to human rights laws.[296] One element of this inclusion is attention to the accessibility of structures, programs and services. The importance of this element is highlighted by the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).[297] The purpose of the AODA is to develop, implement and enforce accessibility standards in order to remove barriers and achieve accessibility for Ontarians with disabilities across a range of contexts by 2025. The AODA defines a barrier as “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice”.[298] 

A third element of participation is the right to continue to contribute to society, whether through paid employment, volunteer work or in other capacities, and to share knowledge, skills, values and life experiences with younger generations. Contributions are not limited to those that may be made through the labour force: the WHO’s Active Ageing Policy Framework explicitly notes that older adults who have retired from work or who are ill or living with a disability can remain active contributors in many ways. The right to contribute is central to the approach of the IPOP. The MIPAA states that

[a] society for all ages encompasses the goal of providing older persons with the opportunity to continue contributing to society. To work towards this goal, it is necessary to remove whatever excludes or discriminates against them. The social and economic contribution of older persons reaches beyond their economic activities. They often play crucial roles in families and in the community. They make many valuable contributions that are not measured in economic terms: care for family members, productive subsistence work, household maintenance and voluntary activities in the community. Moreover, these roles contribute to the preparation of the future labour force. All these contributions, including those made through unpaid work in all sectors by persons of all ages, particularly women, should be recognized.[299]

MIPAA’s statement highlights that this element of participation is dependent for its realization on the second element described above: the removal of barriers to older persons and the development of an inclusively designed society. 

The fourth and final element of the principle of participation is the right to be active in all elements of community life. The WHO, in its Active Ageing Policy Framework, notes that “[t]he word “active” refers to continuing participation in social, economic, cultural, spiritual affairs, not just the ability to be physically active or to participate in the labour force”.[300] 

MIPAA recommends that governments take steps to “provide opportunities, programmes and support to encourage older persons to participate or continue to participate in cultural, economic, political, social life and lifelong learning”.[301] This aspect of participation includes the right to continue to participate in the workforce, to access education and to be involved in community activities. Participants in the LCO’s focus group for newcomer older adults spoke with pain about the isolation that they experienced due to poverty and distance:

The only problem that older people have in our community is that they are lonely. Back home there are neighbours to talk to and mosques to visit. But they are all far away. This is the problem. Government should encourage people to come to the community centre. [contemporaneous translation]

LCO Focus Group, Newcomer Older Adults, October 20, 2011

One facet of this commitment to the inclusion of older persons in the community is the widely endorsed concept of “aging in place”, the idea that older persons should not need to move from their homes in order to access necessary support services in response to changing needs. Aging in place was one of the core concerns identified in the Senate Committee Report on Aging.[302]  

All of these elements of the principle of participation are premised on a fundamental recognition: that older persons have worth and that they have something valuable to contribute to their families, their communities and their society. That is, the principle of participation is profoundly connected to the principle of dignity and respect. The Senate Committee on Aging  took as a starting point for its work on aging the recognition that the aging of society should be viewed not as a burden, but as an opportunity, and that older persons make many and valuable contributions to Canadian society. 

The LCO has adopted the following definition of the principle of participation and inclusion: 

This principle recognizes the right to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Inclusion and participation is enabled when laws, policies and practices are designed in a way that promotes the ability of older persons to be actively involved in their communities and removes physical, social, attitudinal and systemic barriers to that involvement, especially for those who have experienced marginalization and exclusion. An important aspect of participation is the right of older adults to be meaningfully consulted on issues that affect them, whether at the individual or the group level.

 

Recognizing the Importance of Security

What the LCO refers to here as the principle of security has, in some documents been referred to as a principle of “care”. The LCO prefers the term security, as a principle of “care” may connote a passive reception of services and a notion of older adults as frail and dependent. The principle of security must be interpreted and implemented in a way that does not abrogate the other principles of dignity and worth, independence and autonomy, and participation and inclusion. In its submission, ACE stated that the principle of security should 

[address] possible vulnerabilities of older adults, whether short-term or long-term, without discounting the principles of dignity, independence and participation. The LCO is discouraged from recommending a framework based on the notion of vulnerability and a perception that older adults lack capacity and need protection.[303]  

The notion of security is central to the WHO’s Active Ageing Policy Framework. The WHO emphasizes that social and economic environments of older adults are key determinants of active aging. The presence or absence of social supports, violence and abuse, education and literacy, income, social security and opportunities to work will have a significant influence on the ability of older adults to remain active, engaged members of their communities.[304]  That is, security is essential to the achievement and maintenance of the other principles of dignity, inclusion and independence. 

The principle of security (or care) is acknowledged in all key policy documents: MIPAA, the NFA, and the IPOP. There is, however, little consensus on the breadth of the principle of security. 

International documents generally take a broad approach to security, including in it a range of socio-economic elements. The IPOP include, as part of the principle of care, rights of older persons to 

• access health care to help them maintain or regain their optimum level of well-being;
• access social and legal services to enhance their capacity for autonomy and to provide protection and care; and
• access appropriate levels of institutional care, and to enjoy the full level of their human rights and freedoms while in such facilities. 

MIPAA sets out a wide range of objectives related to the economic, physical and social security of older adults. For example, it sets as objectives the reduction of poverty among older adults, the promotion of programs to ensure income security and social protection/social security, and universal access to health care services.  

As one of its key policy proposals, the WHO recommended that governments “[e]nsure the protection, safety and dignity of older people by addressing the social, financial and physical security rights and needs of people as they age”.[305] This requires policy attention to such areas as social security, consumer protection, elder abuse, shelter and social justice. 

Domestically, the principle of security has been given a more restrictive interpretation. The NFA defines security as 

[h]aving adequate income as one ages and having access to a safe and supportive living environment e.g., financial security to meet daily needs; physical security (including living conditions, sense of protection from crime, etc.); access to family and friends; sense of close personal and social bonds; and support. 

This approach to security notably omits reference to access to health, legal or social services.  ACE notes that 

[t]he notion of security in the National Framework on Aging is a good concept that resembles care in the Principles for Older Persons. Unlike the United Nations document, there is no entitlement to services which ensure security of the person, such as health care, institutional care or specialized care. The principle of security could be strengthened if it was expanded to include access to legal and social services, as well as legal definitions of program eligibility for health care and community based long-term care services, such that a person who meets eligibility criteria is entitled to fully participate in the program regardless of scarce resources.[306] 

While section 7 of the Charter provides protection for “security of the person”, it is far from clear whether this extends to the provision of basic necessities. The Supreme Court of Canada considered this question in the case of Gosselin v. Quebec (Attorney General),[307] but did not finally determine it. While the Court did not make such a finding in this case, it left the door open for future arguments that section 7 might be the basis of an affirmative right to basic subsistence. The Chief Justice, writing for the majority, stated that: 

The question therefore is not whether s. 7 has ever been – or will ever be – recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.[308] 

In Nova Scotia (Workers’ Compensation Board) v. Martin, a case under section 15 of the Charter, the Supreme Court stated that in section 15 cases involving economic interests, economic disadvantage or deprivation may be related to a loss of human dignity.[309] However, the Court has also been clear, most recently in Auton (Guardian ad litem of) v. British Columbia (Attorney General) that legislatures are under no obligation to create benefits (though neither are they restricted from doing so). They may target programs to be funded on the basis of their policy decisions, so long as the resulting benefits are not delivered in a discriminatory fashion.[310] 

The lack of security was a recurrent theme of the LCO’s public consultations. Older adults repeatedly expressed fear for the future, and anxiety about their financial, physical and social independence. They feared slipping into poverty, exploitation by unscrupulous family members or service providers, losing the ability to contribute and be treated with respect, or losing dignity and control over their own bodies due to illness or disability.

There is also financial vulnerability, and I think a lot of us fear that too. And it’s possible that you may have a cracker jack lawyer daughter who’s going to look after your interests totally competently, but the chances are no, you’re going to be on your own and really have very little idea, many people, of whether they are being cheated or whether they are getting what they’re entitled to, and there’s no system of advocacy.

LCO Focus Group, Older Women, October 21, 2011

 

This is a crucial issue for women because we live longer. We are entering the hospital system in our final days at a greater age and in greater frequency. Our sense of helplessness and powerlessness increases with our age. If you don’t have really good people to help you, you are very much victimized by the system.

LCO Focus Group, Older Women, October 21, 2011

The LCO adopts the following definition of the principle of security:

This principle recognizes the right to be free from physical, psychological, sexual or financial abuse or exploitation, and the right to access to basic supports such as health, legal and social services.

Responding to Diversity and Individuality

As noted earlier, the diversity among the Canadian population as a whole is mirrored in the population of older adults. Older adults will differ depending on their age, gender, sexual orientation, language, income, education, area of geographic residence, family and marital status, language, immigration and citizenship status, racialization and ethnic origin, Aboriginal identity, status with respect to health and disability, and other factors. To assume that older adults are a homogenous group, and reduce their diversity of needs, experiences, identities and outlooks to a single status based on age is itself a form of ageism. To emphasize that older adults are first and foremost individuals, and that in many, if not most, circumstances, their age is not the most important aspect of their identities is key to combating stereotyping, paternalism and ageism. MIPAA emphasizes that one of the most important actions that governments can take to combat ageism is to “encourage the media to move beyond portrayal of stereotypes and to illuminate the diversity of humankind”.[311] 

The OHRC adopted individualization as a key principle in its Policy on Discrimination Against Older People because of Age, noting, “[i]n the past, many standards, factors, requirements and qualifications that discriminate on the basis of age have been justified on the basis of presumed characteristics associated with aging.”[312] 

You need to feel that each person is an individual. Therefore, we need to be treated that way. What is right for one person may not be right for any other person.

LCO Consultation Questionnaire Respondent

The WHO’s Active Ageing Policy Framework recognizes the principle of diversity as part of its adoption of a life course perspective on aging, stating that “[a] life course perspective on ageing recognizes that older people are not one homogeneous group and that individual diversity tends to increase with age”.[313] That is, an application of the principle of diversity must incorporate a life course approach to understanding issues associated with aging.  

Another aspect of the principle of diversity is the recognition that the intersections between various aspects of identity may produce unique forms of marginalization, discrimination and exclusion. International documents recognize the importance of bringing gender, cultural and disability lens to policies and programs related to aging. The OHRC’s Policy notes that: 

The experience of age discrimination may differ based on other components of a person’s identity. For example, certain groups of older persons may experience unique barriers as a result of the intersection of age with gender, disability, sexual orientation, race, ethnicity, religion, culture and language … This understanding of the complexity of how people experience age discrimination means that, where appropriate to the circumstances of the alleged discrimination, all relevant grounds must be considered along with age … It may be necessary to examine any stereotypes as well as the historical, social and political context associated with the particular combination of grounds. In some cases persons may be put at a ‘double disadvantage’ as a result of age combined with other grounds of discrimination.[314] 

The LCO has adopted the following definition of the principle of diversity and individuality: 

This principle recognizes that older adults are individuals, with needs and circumstances that may be affected by a wide range of factors such as gender, racialization, Aboriginal identity, immigration or citizenship status, disability or health status, sexual orientation, creed, geographic location, place of residence, or other aspects of their identities, the effects of which may accumulate over the life course. Older adults are not a homogenous group and the law must take into account and accommodate the impact of this diversity.

 

Understanding Membership in the Broader Community

As the previous section makes clear, all of us have many identities, roles, ties, networks and communities. For older adults, their membership in a particular generation or age-grouping is only one, and not necessarily a defining, characteristic; it is may not be the most central.  

Older adults are members of the broader community, with which they have a wide range of ties, as well as reciprocal rights and obligations. The well-being of older adults – as citizens, as parents and grandparents, as employees and volunteers, as taxpayers and recipients of services – is connected, and to some extent, reflective of the wellbeing of the broader society. The reverse is, of course, true as well. Older adults, and the law as it affects older adults, cannot be considered as separate from the population as a whole.  

If we expect to get good care, we should be concerned about the people that we expect to care for us. I’m talking about the paid caregivers and we should support the laws that are trying to strengthen [the PSWs, the caregivers], their wages and their working conditions. My impression is that there are not very many laws or regulations around helping the caregivers, especially people, girls, women who come from other countries who care for the elderly and are they being protected.

LCO Focus Group, Older Women, October 21, 2011

Employing a life course approach adds another dimension, in that the laws and policies and environments shaping the life of children, young adults and those now in middle-age shape the nature and experience of growing into older.[315] An age-friendly society takes into account the well-being and resources available to individuals of all ages. 

The vision of the NFA of “Canada, a society for all ages …” highlights the importance of considering the needs and experiences of older adults in the broader context of ensuring that society is inclusive for all ages.  

The emerging international concept of “intergenerational solidarity” presents another way of understanding and addressing the connections between generations.[316] The concept of intergenerational solidarity has been described in this way:

Solidarity between the young, the active and the elderly must not be approached solely from a financial perspective, but must be viewed in a wider way, encompassing the promotion of mutual cooperation and exchange between the generations. It must encourage a better mutual understanding of the needs and expectation of other age groups and explore new forms of coexistence. The way in which our society is organised must be reviewed completely in order to rebuild the social fabric and the links between and within the different generations so that all can find the place that suits them where they can flourish and make their contribution to the general well-being as best they can.[317] 

The LCO has adopted this definition of the principle of membership in the broader community: 

This principle recognizes the reciprocal rights and obligations among all members of society and across generations past, present and future, and that the law should reflect mutual understanding and cooperation and work towards a society that is inclusive for all ages.

 

5.               Applying the Principles

Relationships Between Principles

As these brief discussions of the principles indicate, the principles cannot be neatly separated from each other, and are interrelated in multifaceted ways.  Dignity and independence, for example, cannot be achieved without security. Security is based on respect for the inherent worth and dignity of older persons.

However, there may also be tensions between the principles.  There are a number of scenarios in which tensions between principles might arise in the context of older persons. In some cases, two principles may be in tension in relation to the same older adult.  For example, an older woman could be living in unsafe and unsanitary conditions in her own home but would like to remain there rather than be moved.  Here the principle of autonomy – the woman’s right to choose where to live – may come into tension with the principle of dignity – her inherent worth to have the minimum standards for her existence to be met. As an additional complication, the unsafe or unsanitary conditions for this individual might in some circumstances raise concerns about risks to others, thereby implicating the principle of understanding membership in the broader society. There may also be instances where principles may be in tension in relation to two different persons or groups of older persons.  Although not insurmountable to resolve, it is important that we develop a framework for resolving such tensions when they do in fact arise.

In assessing tensions between principles, it is essential to be sensitive to the contexts in which those tensions arise.[318]  What specific rights or outcomes are at issue in that particular situation? Who might be affected? How might a reduced implementation of one principle affect the achievement of other principles? That is, the tensions must be examined in a nuanced and holistic manner.  

As well, an examination of tensions, particularly between the principles of security and of independence and autonomy, should be sensitive to the larger social context in which such tensions may arise. In the example cited above of an older woman who wishes to remain in her home despite the unsafe and sanitary conditions there, one of the factors at play may be the policy decisions that continue to result in a lack of adequate home care supports for older adults. In such a case, the real issue may not be a tension between autonomy and security, but the impact on both principles of the limited available appropriate resources to maximize both. That is, we should not be too quick to reduce a challenge or difficulty to an instance of tensions between the principles.  

One potential pathway to resolving tensions that arise between principles is to create a hierarchy among the principles in order to determine which principle should prevail in the event of a tension with another principle.  One advantage of such an approach is that it is predictable, as well as simple, to apply.  However, the mechanical nature of such an approach ignores the complexity of the issues where such tensions arise.[319] It also ignores the interrelatedness of the principles. To elevate the principle of dignity, for example, above all other principles ignores the potential that restrictions in the fulfillment of other principles, such as autonomy or participation, might contribute to an overall lessening of respect for the dignity of older persons. Hierarchical approaches have generally been rejected in the area of rights for this reason: for example, the preamble of the Convention on the Rights of Persons with Disabilities reaffirms “the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms”.[320] 

The concepts of “reconciling” or “balancing”, which have been explored in the context of “competing rights”, might be useful to consider in this context.[321] Reconciliation is an approach that attempts to give proper recognition of both principles to the greatest degree possible.[322]  Balancing may involve the weighing of one principle against the other. Using a balancing approach may have the disadvantage of creating the impression that the principles are actually competing and need to be considered hierarchically.[323]

An important element of addressing tensions that may arise between principles, is to recollect that the principles themselves have been developed as a means of responding to the marginalization, exclusion and oppression of older persons. That is, in considering how to resolve tensions between principles, one might consider the particular types of barriers that the principles were intended to address, and how any specific approach to resolving the tensions might impact on the achievement of the broader goals of an anti-ageist approach to the law.[324] 

It is also important to realize that the principles in tension should not be viewed in isolation: in trying to resolve tensions, it is often helpful to ask how the other principles that might not be so obviously implicated may help to inform an appropriate resolution.

The case example below highlights approaches and analyses where principles are in tension, in the context of mandatory reporting and adult protection laws. 

CASE EXAMPLE: TENSIONS BETWEEN AUTONOMY AND SECURITY Mandatory Reporting and Adult Protection Laws One example of the ways in which tensions between principles may manifest in law may be found in considering mandatory reporting and adult protection laws. These are often cited as examples of the tensions between protecting the security of older adults and respecting their autonomy. A careful examination of these laws reveals a more multi-faceted relationship between these principles.  Some provinces have put in place comprehensive adult protection legislation. This legislation aims to address the risk of abuse and neglect for older adults, and creates institutional structures to address instances of abuse and neglect. It generally covers physical, sexual, emotional and financial abuse, as well as self-neglect. To achieve this objective, this type of legislation provides for intervention by third parties. The primary objective of adult protection legislation is to connect individuals with necessary social and medical services.   The application of adult protection legislation varies. Newfoundland’s Neglected Adults Welfare Act, applies to adults who: 1) are incapable of properly caring for themselves because of “physical or mental infirmity”; 2) are not suitable to be in a suitable treatment facility under mental health laws; 3) are not receiving “proper care and attention”; and 4) refuse, delay or are unable to make provision for proper care and attention. [325] Nova Scotia’s Adult Protection Act similarly applies to victims of abuse or neglect (or self-neglect) who are incapable of protecting or caring for themselves due to physical disability or “mental infirmity”.[326] That is, the scope of the legislation is not necessarily limited to those who are legally incapable of making decisions for themselves: physical disability or lesser levels of mental disability may also provide a justification for unwanted intervention. Manitoba’s Vulnerable Persons Act is rather different in approach, in that it restricts its focus to persons with intellectual disabilities who are in need of assistance to meet basic needs with regards to personal care or financial management.[327] Adult protection legislation focuses on protection from abuse and exploitation by granting broad powers to an agency to intervene. The Manitoba Law Commission notes that in these statutes “[t]he focus thus shifts from competence and legal disability to vulnerability and agency intervention, removal of the victim from the home, and case planning.”[328]  All three statutes require mandatory reporting of abuse or neglect of an adult who falls within the protective scope of the legislation.[329] Agencies have investigative powers, and may have broad remedial powers to, for example, remove the older adult or some other person from the home, place the older adult under agency supervision, require a person to provide financial support to the older adult, or do anything else that the designated authority considers appropriate.  One key difference between the Manitoba legislation and that of Newfoundland and Nova Scotia beyond the more restrictive scope, is the emphasis in the Vulnerable Person’s Act on maintaining and supporting, wherever possible, the ability of the vulnerable person to be involved in decisions that affect him- or herself. The preamble to the Act sets out a presumption of capacity to make decisions and a recognition that vulnerable persons should be encouraged to make their own decisions and that they should have the support and assistance to do so to the degree possible, and this emphasis is reflected throughout the Act.  Adult protection legislation has been, and remains, controversial. [330]  ACE has always opposed adult protection legislation of the type in place in Nova Scotia, on the basis that such legislation: (a) limits the Charter values of liberty and security of the person without providing the same substantive rights and procedural safeguards that would be found in alternative criminal justice and mental health legal procedures; and (b) marginalizes already disadvantaged adults, often without providing anything constructive in the way of rights or resources that might assist them in overcoming neglect and abuse.[331]  A key element in the negative response to mandatory reporting legislation in the Atlantic provinces is the very broad scope of that legislation, which permits unilateral and potentially heavy-handed intervention in the lives of older adults, who, in other contexts, would be considered quite capable of making their own decisions. There are obviously some adults who, due to the nature of their disabilities, are not able to speak or act for themselves or to make decisions to protect their own safety and security, and who may need others to assist them to take action or to simply take action for them. The scope of the legislation in Nova Scotia and Newfoundland, however, goes far beyond this, and in doing so, permits paternalistic decision-making, potentially influenced by age-based stereotypes or attitudes.   In considering responses to elder abuse, it is worthwhile to consider the views of older adults themselves, and the reasons that capable older adults may have for not reporting elder abuse.[332] They may, for example, be unaware of their rights and of their legal avenues for securing them. They may fear that the authorities would not take them seriously, or would not provide them with assistance. They may have been intimidated by their abusers, or prevented from contacting others. This may be particularly the case for older immigrants, who may face serious immigration consequences if their relationship with their sponsor is undermined. Older adults may also be reluctant to report their children if they are abusive, for fear of seeing them subjected to criminal penalties that will have life-long impact and destroy the relationship.   Circumstances involving the abuser as being someone in a position of trust also have a negative impact on report rates. A relationship with the abuser can discourage an elderly person to report abuse because many seniors perceive legal intervention as too severe. Some individuals indicated a preference for less formal or community-based response, similar to a restorative justice approach to elder abuse. Restorative justice appealed to group participants because of the belief it could provide an opportunity for victims to speak with their abusers, for the abusers to receive education about appropriate and acceptable behaviours, and present a way to repair the harm without family or loved ones facing serious legal repercussion.[333] Where older adults are reliant on their abusers for caregiving supports, they may fear that prosecution of their abusers will leave them without the supports they need to continue to live in their homes or communities. They may also fear that interventions may be made under the law that will reduce their independence.  In considering these reasons, some conclusions become apparent.   First, because of the complex roots of elder abuse, legislation can, in any case, provide only a partial response (although a vital one) to the problem of elder abuse. [T]he [Manitoba Law Reform] Commission is of the view that legislation per se cannot be a complete answer to social problems. No legal regime can anticipate all eventualities in an area as diffuse and complex as adult protection, where problems take multiple forms and are deeply insinuated into social and familial relationships. Attempts to do so have created, in the Commission’s view, blunt and intrusive legal instruments. The extreme protectionism at the heart of such statutes is at odds with the value placed in Canadian society on self-determination.[334] In some cases, older adults are vulnerable to abuse because a lack of social supports places them in a position of dependency with respect to their abusers. Addressing the abuse may worsen other aspects of their situation. The older adults in these situations must weigh a trade-off between their security from abuse and other values and goals. In such cases, older adults, so long as they are capable, are in the best situation to weigh what is the best for them, or at least have the right to make their own decision as to what will maximize their security, dignity, autonomy, and participation. Mandatory intervention in the lives of older adults who are capable of unassisted decision-making may not in fact lead to better outcomes for those older adults. Further, the optimum response is not necessarily to make choices on behalf of the older person, but rather, to ensure that older adults have the supports and services they require to avoid becoming dependent on their family caregivers and to make choices for themselves.  Manitoba’s Vulnerable Persons Act in part addresses these concerns regarding the impact on autonomy by including in its preamble a number of principles, including a presumption of capacity, a recognition that vulnerable persons should be encouraged to make their own decisions, and a recognition that assistance with decision-making that is provided to vulnerable persons should be provided in a manner which “respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances”. In addition, Manitoba Family Services has adopted a number of principles with respect to the protection of vulnerable persons, including the following: The vulnerable person has the right to refuse protection services, where he or she understands why such services are offered and appreciates the danger or reasonably foreseeable consequences of his or her refusal. The vulnerable person’s wishes, beliefs or values are to be considered so the vulnerable person’s independence and self-determination can be maintained, and where these are not known or may endanger the vulnerable person, his or her best interests should be considered; and Protective action should be the least restrictive and least intrusive to ensure reasonable safety and security under the circumstances and to maintain the vulnerable person’s independence, privacy and dignity.[335] Greater training and education to ensure that authorities are able to respond appropriately and sensitively to older adults in situations of abuse, and to make sure that older adults are aware of their rights and how to access them, would reduce barriers to addressing elder abuse. Public education that emphasizes valuing elders and addressing ageist attitudes may reduce some of the root causes of elder abuse.  While intended to enhance the security of older adults, broad adult protection schemes are paternalistic in approach and may unduly compromise the autonomy of older adults when put into place.  While comprehensive adult protection regimes may give agencies a necessary “foot in the door” in cases of suspected or actual adult abuse or neglect, such regimes would appear to compromise individual autonomy and due process rights, which rights may not be recognized until long after an adult and his or her intimates have experienced significant loss of liberty and legal repercussions. It is this compromise of rights that is the most serious failing of comprehensive adult protection regimes.[336]  It is tempting to analyze the tensions regarding mandatory reporting and adult protection laws as a straight-forward instance of tension between autonomy and security for older adults, but it is important to resist a simplistic analysis. Mandatory reporting laws, while intended to enhance the security of older adults, may in fact compromise their security by leading older adults at risk to isolate themselves or by exposing them to excessive intervention in their “best interests”. Further, legislation may not be the best avenue for enhancing the security of older persons, at least not as an isolated strategy. A holistic approach which considers the social contexts of the issue may yield solutions which may both respect the autonomy of the older adult and enhance security.  There are situations where older adults may genuinely be unable to act to protect themselves because the nature of their disability renders them unable to understand their options or the potential consequences of their choices. Mandatory reporting and intervention may be necessary in such situations. However, it may still be possible to recognize the autonomy of such older adults, albeit to a more limited extent. This can be done for example, by offering supports and resources prior to resorting to unwanted intervention or by ensuring opportunities to voice concerns even where they may not be determinative in a decision. In this way, to the degree that such legislation can be seen as a balancing between principles of security and of autonomy, the Manitoba approach to adult protection and mandatory reporting, with its restriction of scope to those whose decision-making abilities are affected by disability and its recognition of the importance of maintaining autonomy where possible, appears to strike a better balance between the two.

6.               The Challenge of Application

As important as it is to identify principles for the law as it affects older adults, these principles, without more, are an insufficient basis for an evaluative framework for this area of the law. They must be first paired with a close attention to the lived experiences of older adults as this will ground the principles. Principles which do not incorporate and reflect the lives of older persons will lead to ineffective programs, policies and laws. Attention to the lived experiences of older adults, as outlined in the previous chapter, can provide a context for application of principles. 

As well, in order for principles and considerations to provide sufficient practical guidance, a deeper understanding of their practical implications must be developed in the particular context of the law as it affects older adults. How might the principles apply in a context where the abilities and understanding of individuals may be shifting or fluctuating due to illnesses or impairments related to the aging process? How can the principles be applied in a way that meaningfully reflects the great diversity in characteristics and circumstances of older adults? What might principles such as autonomy or participation or security mean in specific settings such as long-term care homes? 

The principles and considerations may apply differently depending on the type of law involved. For example, it is easier to identify and analyze potential issues arising in laws that directly target persons with older adults than with laws of general application. Law and policy-makers may have more difficulty determining whether and how older persons may be differentially affected when developing general laws. Often, problems arise in implementation rather than the substance of these general laws, making issues even harder to identify and address. As well, challenges may arise in reconciling general needs or constraints with the particular needs of older persons. 

A framework must take into account the different ways in which various types of laws will shape the lives of older persons, and how the practical implications of the principles and considerations will vary as a result. This will be considered further in the next Chapter of this Report.

 

7.               Addressing Evolving Realities and Recognizing Constraints

The application of the principles cannot be static. The circumstances of older adults will continue to change as laws, attitudes, demographics and other aspects of the broader environment change. As well, understandings of the experience of aging continue to evolve, and new perspectives are heard. What might be considered conducive to attainment of the principles at one time may appear unhelpful or inadequate at a later date. 

Further, as part of a principles-based approach, one must recognize that even where one would aspire to implement all the principles to the fullest extent possible, there may be other constraints that might limit the ability of law and policy makers to do so.  These constraints may include policy priorities or funding limitations among others. That is, it may be necessary to take a progressive realization approach to the full implementation of the principles.  A progressive realization approach involves concrete, deliberate and targeted steps implemented within a relatively short period of time with a view to ultimately meeting the goal of full implementation of the principles. 

One approach to the progressive realization of the principles may be to draw upon the international concept of “respect, protect, fulfill”. In the realm of international human rights law, this framework is used to analyze and promote the implementation of human rights obligations. In this analysis, states must address their human rights obligations in three ways:[337]

1. The obligation to respect – States parties must refrain from interfering with the enjoyment of rights. For example, states must not exclude older persons from access to employment or education on the basis of their age.
2. The obligation to protect – States parties must prevent violations of these rights by state actors and third parties. For example, states must require private employers to refrain from discriminating against older persons in employment because of age.
3. The obligation to fulfil – States parties must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights. For example, states might create special programs to provide supports for older workers who face particular barriers to re-employment after layoffs.  

This approach can be useful in analyzing and promoting the realization of the principles in the law as it affects older adults. As part of progressive realization of the principles, government might immediately take steps to ensure that no laws interfere with the principles (respect) and pass laws to prevent interference with the principles (protect). That is, as a first step, government might ensure no actual violations of the principles are occurring. As a progressive step, laws might be passed over time to actively promote the realization of the rights.   

There may also be situations where the realization of the principles for older persons may have an impact on the rights of other individuals or groups. During public discussions of the rights of older persons, it is almost inevitable that concerns are expressed about the impact of respecting the rights of older persons on other age groups. The debate regarding mandatory retirement is a case in point, with concerns repeatedly raised that the elimination of protections for mandatory retirement policies would have a negative effect on the employment opportunities of younger persons.[338] In this view, there exists an intergenerational struggle for access to scarce resources, in which the rights of older adults must be balanced against the competing interests of other generations.  

One must be cautious about assuming the widespread existence of such conflicts. As with any set of rights, there may be circumstances where respecting and promoting the needs and rights of older adults may have a clear and direct effect on the rights of others. Where such is the case, the competing needs, interests and rights must be clearly articulated and transparently addressed. However, perceptions of such competition or conflicts may be rooted in negative assumptions about the worth and contributions of older adults, and based on stereotypes of older adults as burdensome, passive dependents rather than on objective research and analysis. 

Further, as the principle of membership in the broader community emphasizes, an analysis of the impact of laws, policies and programs that employs a life course approach and understands older adults as part of their larger communities, can illuminate the common interests that bind the generations. In a discussion of laws and policies, a rapid recourse to the discourse of intergenerational struggle may obscure as much as it illuminates.

 

C.    Conclusions: Developing a Principled Approach to the Law as It Affects Older Adults

Principles can provide a set of norms to counteract tendencies towards ageism in the development, substance and implementation of laws that affect older adults. Principles for the law as it affects older adults should aim to promote the worth, participation, individuality and diversity, and contributions of older adults. From this anti-ageist perspective, the LCO has reviewed and analyzed key international and domestic sources for principles, and has identified six core principles for the law as it affects older adults, with substantive equality as a core value underlying all of the principles.

The key challenge with a principles-based approach to the law is to develop definitions and interpretations of the principles that are sufficiently detailed, nuanced and grounded to provide practical guidance to legislators and policies makers. Account must also be taken of the inevitable tensions between principles and the constraints on application. 

The next Chapter of this Report will begin to tackle these challenges with an examination and analysis of the law as it affects older adults, and the ways in which ageism may manifest in the law.

 

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