A principled approach to this area of law can assist in guiding and educating policy makers and provide standards against which laws, policies and programs can be assessed. In the Consultation Paper on Shaping the Project, the LCO requested feedback on the principles that should underlie any approach to the law as it affects older adults, seeking to identify principles that can advance an anti-ageist approach to the law and provide a foundation for standards in this area.

. Principles Adopted by the LCO

Based on the LCO’s research, and on the comments that were received during the consultation, the LCO has adopted the following principles as the basis for its approach to the law as it affects older adults:

1. Independence: This applies in all spheres of life, including rights to meaningful opportunities to work, to age in place, to access education and training, and to make choices and do as much for oneself as possible. Given entrenched paternalism and stereotypes, the presumption of ability is essential to the independence of older persons. This principle also includes measures to enhance capacity for independence, including ensuring access to information, provision of programs and policies that support independence, and the provision of adequate supports for those who provide care for older persons.

2. Participation: This includes the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Participation is enabled through inclusive design of laws, programs, policies and services. 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.

3. Security: Some frameworks refer to this principle as one of “care”. This principle includes the right to physical, financial, and social security, such as the right to be free from abuse or exploitation. It also includes the right to basic supports in terms of health, legal and social services.

4. Dignity: At its most basic level, this principle involves 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, and a right to privacy. It includes the recognition that all members of the human family are full persons, unique and irreplaceable, that all have inherent and equal worth, and capacity for growth and expression.

5. Respect for Diversity: Older adults are not a homogenous group, and their needs and circumstances may be affected by a wide range of factors. The LCO’s analysis of the law as it affects older adults will respect the diversity of older adults, and take into account the impact of this diversity on their relationship with the law. The LCO’s approach to, and understanding of diversity is further outlined below.

These principles must be read in the context of Canada’s human rights framework, including both the Charter of Rights and Freedoms and the Ontario Human Rights Code,[1] and with a focus on substantive, rather than formal, equality.

These principles are supported by, and in part derive from, existing international and domestic policy frameworks regarding older adults. These documents provide a starting point in developing a set of guiding principles for a coherent approach to this area of the law. While they vary in lexicon, emphasis and nuance, there is general agreement between these documents on some foundational principles for a policy approach to older persons.

On the international front, the most notable frameworks relating to older adults are the United Nations 1991 Principles for Older Persons[2] and the World Health Organization’s 2002 Active Ageing: A Policy Framework.[3] Recently, the United Nations has adopted the Convention on the Rights of Persons with Disabilities,[4] which is relevant to the situation of older persons in several respects. While Canada has not yet ratified this Convention, it is expected to do so. There are also a multitude of regional, issue-specific, or planning documents that identify relevant principles and perspectives.

Domestically, Canada produced a National Framework on Aging in 1999 for the International Year of Older Persons.[5] Also of importance are the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Ontario Human Rights Commission’s Policy on Discrimination Against Older Persons Because of Age.[6]

The principles adopted by the LCO were generally affirmed by organizations making submissions to the LCO’s consultation. The Ontario Human Rights Commission stated:

Law reform needs to incorporate a clear affirmation of the notions of dignity, independence, participation, fairness and security as guiding principles central to any consideration of the issues related to older persons. These principles mirror the words of the Preamble to the Ontario Human Rights Code and reflect the intent of its human rights protections.

The British Columbia Law Institute indicated that:

The five NFA principles and the values reflected in the WHO framework provide a good basis for promoting the status and well-being of the older population. They would also be useful as standards for assessing the terms of new and existing laws and policies to avoid disproportionate adverse impacts on older persons and the unintended creation of barriers to their full participation as members of society.

B. Implementation of Principles

While there may be general agreement on some broad principles, this does not simplify the difficulties of implementing them in law and policy. How can, for example, the principle of independence be advanced in institutional settings – noting that some commentators believe that institutional settings are antithetical to the principles of dignity, independence and participation? What type of approaches will ensure access to the law? How can the decision-making capacities of persons with significant cognitive disabilities best be supported? If the LCO adopts a definition of the principle of security that includes a right to basic supports, what supports are included and in what circumstances, and how can this be implemented? The challenges are numerous.

The principles identified above are clearly interdependent. 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, it is important to identify and carefully consider the potential conflicts among these principles. There are, for example, tensions throughout elder law between the principles of independence and security, or as some have phrased it, between autonomy and protection. The Advocacy Centre for the Elderly states:

It 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.

This tension may be inherent to this area of the law, arising from difficulties in addressing shifting levels of capacity and ability among some older adults as a result of aging process. Many of the ongoing policy debates in the area of elder law – for example, debates regarding the best approach to preventing and addressing elder abuse, or regulation of enduring powers of attorney and guardianship legislation, or the value of adult protection legislation – have at least some roots in this tension.

Tensions between the rights of older adults and those of other groups must also be acknowledged and addressed. These may raise difficult issues. For example, there may a conflict between the rights of support workers to work in a smoke-free setting and be protected from the health-risks associated with second-hand smoke, and the rights older persons living in institutional settings to make choices about their activities in what is, after all, their homes. Rules requiring mandatory retirement for police officers, firefighters and other safety-sensitive positions may be understood as attempts to balance the rights to independence, dignity and participation of older persons against safety risks for the community.[7]

C. Relations Between Generations

Some policy frameworks refer to the notion of “intergenerational equity”;[8] however, several organizations expressed concerns about this notion and its potential application to the law as it affects older adults. The notion of intergenerational equity has been expressed in a variety of forms. It has, for example, been conceptualized as part of an environmental sustainability framework, viewing the human community as a partnership across generations, with the current generation having a role as custodians of the earth for future generations. In a different approach, others have used this notion as a framework for analyzing the intergenerational effects of government expenditures and taxation decisions. Submissions to the LCO critiqued the notion that 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. Some have suggested that it may be more helpful to focus on intergenerational solidarity, a term that has been used in a number of recent international documents,[9] or on a lifecourse analysis of the impact of laws, policies and programs.

D. Respect for Diversity

Older adults are an enormously diverse group of people. The needs and circumstances of older adults may be affected by the following demographic factors:

  • Age (the experiences and circumstances of a 60 year-old and a 90 year-old are likely to diverge in significant ways);
  • Gender (including the experiences of transgendered older adults);
  • Sexual orientation;
  • Income;
  • Education;
  • Geographic residence (for example, the needs of older adults living in rural settings are likely to differ from those living in urban settings, and residents of Northern Ontario will face different challenges in accessing services than those in Southern Ontario);
  • Family and marital status (older adults must be considered as both providers and recipients of care);
  • Language (including the situations of francophone older adults, those for whom Sign Language is their first language, and newcomers whose first language is other than one of Canada’s official languages);
  • Immigration and citizenship status (keeping in mind that the experiences of recent immigrants will differ from those who immigrated during their youth);
  • Racialization and