1. The LCO’s Project on the Law as It Affects Older Adults
This is the Final Report for the LCO’s project on the law as it affects older adults, and sets out the results of the LCO’s research and consultations.
This project is based in part on a proposal received by the LCO soon after its inception from Professor David Freedman, a professor of Elder Law at Queen’s University, Faculty of Law.
Demographic changes have in recent years drawn increased attention to the needs and circumstances of older adults. As has been widely noted and as is further detailed in Chapter II of this Report, Canada’s (and Ontario’s) population, along with that of many other nations, is aging significantly. The number of Canadians over the age of 65 is expected to increase from 4.2 million in 2005 to 9.8 million in 2036, and their share of the population will almost double, from 13.2 per cent to 24.5 per cent. This demographic shift has significant implications for all areas of public policy. As the Senate Special Committee on Aging has stated,
[t]he challenge of an aging population goes far beyond the responsibilities of the federal level of government as defined in the Constitution. It must be a concern for every Canadian, for every province, territory and municipality, for every business large and small, for every volunteer organization and NGO.
With the aging of Canada’s population, the importance of developing sound legal and public policy approaches to issues affecting older Canadians will continue to grow.
Despite pioneering work done by organizations such as the Advocacy Centre for the Elderly (ACE) and the Canadian Centre for Elder Law (CCEL), relatively little attention has as yet been paid to the overall relationship of older Canadians with the law. While substantial and important work has been done on specific elder law issues, such as consent and capacity laws, mandatory retirement and elder abuse, there is generally a dearth of Canadian research on how older adults access the law and the barriers they face in doing so, and on how the law as whole might be made more effective, fair and accessible for older adults. As well, research and policy development related to older adults and the law has focused on laws that explicitly or obviously disproportionately affect older adults, such as age-based drivers’ license requirements or legal issues regarding long-term care, while less attention has been paid to how laws affecting the general populace may also have a differential impact on older persons.
The LCO’s Board of Governors therefore concluded that this is an area of law that would benefit from a comprehensive analysis, and the development of a more holistic and principled approach. A coherent evaluative analysis for this area of the law can assist in raising the profile of under-examined issues and in spurring and supporting law reform in the many areas where it is needed.
As the Federal/Provincial/Territorial Committee for Seniors pointed out in their Seniors’ Policy Handbook
[a]pplying a seniors’ policy lens can help to ensure that:
the needs and values of seniors are respected
the contributions of seniors in all aspects of life are acknowledged
the diversity of the seniors’ population is taken into consideration
activities that affect seniors are approached in a holistic manner that considers linkages and interactions with other policies and programs
the cumulative impact of change and the implications for seniors have been thoroughly considered
the concerns and issues of today’s seniors and of coming generations of seniors are considered.
Based on the proposal and the LCO’s internal research, the LCO’s Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of the LCO’s project on the law as it affects older adults is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas. Rather, the purpose of the project is to articulate a set of principles and considerations that may form the basis of a coherent analytical framework for this large and diverse area of the law. Given the barriers that older adults face in accessing justice, the principles and considerations adopted should not only systematize this area of the law, but also make it fairer, more accessible and more effective. The ultimate aim of this project is to build on work that has already been done to develop a sound basis for evaluating current laws and policies and developing new ones, to ensure that they respect the rights and circumstances of older persons.
The Framework developed through this project may be of assistance to those who develop laws and policies, such as legislators, policy-makers and private actors who develop policies and programs affecting older adults; to those who interpret laws, such as courts and tribunals; and to those who identify needs and advocate for reforms.
As is further described below, this project is closely related to the LCO’s similar project on the law as it affects persons with disabilities. A significant minority of older persons live with disabilities, whether because they have aged with disabilities or because they have developed disabilities as they aged. As well, there is a rich literature in the area of critical disability studies and the law, some facets of which can inform the development of an anti-ageist approach to the law, as can equality theory more generally. Therefore, while there are many areas where the two projects diverge, they have been developed in tandem and have shed light on each other during that process.
2. Shaping the Project: The Process
Given the broad and multi-faceted issues raised by this project, it was planned as a multi-year, multi-stage project.
Older adults are an extremely diverse group, ranging widely in histories, identities and circumstances. Every law that affects the general populace will affect older adults, sometimes in ways that are similar to how it affects others but often differently, and, importantly, often in very different ways for various groups of older adults. The area of “elder law” itself – that area of law dealing specifically or disproportionately with older adults – is extremely complex. As just one example, the law relating to capacity and substitute decision-making has itself been the subject of numerous law reform endeavours and voluminous reports.
Recognizing the challenges inherent in this project, the LCO therefore commenced its work with a “Pre-Study” process, aimed at identifying themes, issues and approaches for the overall project. In May of 2008, the LCO launched the Pre-Study with a Consultation Paper: Shaping the Project. This Paper was posted on the LCO website and distributed to a range of academics and researchers, legal clinics, community organizations and government bodies. The pre-study Consultation Paper provided a brief overview of themes and issues identified through its preliminary research, and requested feedback from stakeholders on the scope and design of the Project, including key issues and principles. The LCO received written submissions from 21 organizations, and held meetings with six organizations and individuals.
The LCO reported on the results of this Pre-Study and its initial research in a second Consultation Paper issued in December 2008. In this Consultation Paper, the LCO adopted five preliminary principles: independence and autonomy; dignity and respect; participation and inclusion; security; and respect for diversity. It also identified several thematic areas for focus, including ageism and the law, the relationships of older adults, and the living environments of older adults. This input shaped the considerable research undertaken by the LCO for this project.
In January 2009, the LCO issued a Call for Research Papers on these themes, in order to supplement its own research and to gather diverse perspectives on key issues. Through this Call for Papers, the LCO funded three research papers: one from ACE on access to the law and congregate living; a second by Margaret Hall on developing an anti-ageist approach to the law in the context of elder abuse and substitute decision-making frameworks; and a third by Charmaine Spencer on ageism and age discrimination in health and housing law. These papers are available on the LCO’s website at http://www.lco-cdo.org.
In the fall of 2010, the LCO co-hosted the 2010 Canadian Conference on Elder Law, in partnership with the CCEL (affiliated with the British Columbia Law Institute) and ACE. The Conference brought together a wide range of academics and experts, professionals, service providers, and community and advocacy organizations to consider the themes of ageism and the law, law reform and older adults, and access to justice for older adults. Approximately 100 presenters and speakers shared their research and ideas, and the Conference resulted in a significant number of new papers, which are available through the LCO website at http://www.lco-cdo.org.
To guide its work, the LCO formed an Advisory Group which provides advice on outreach and on approaches to the substantive issues at stake in the process.