Indeed, the very definition of “elder abuse” has been and remains controversial although some consensus has formed around identifiable categories and types of abuse:
The lack of a generally acceptable definition has spawned a wide variety of definitions of abuse and neglect, which, to this day, still generates controversy and debate. Nevertheless, most would agree on three basic categories of abuse and neglect: (1) domestic elder abuse; (2) institutional abuse; and (3) self-neglect or self-abuse. Most would also agree on the major types of abuse—physical, psychological, and financial abuse. Beyond this classification, however, there is little agreement.
Elder abuse includes, but is not confined to, a number of Criminal Code offences where the victim is an older adult. Relevant criminal offences include theft; assault; sexual assault; false imprisonment; failure to provide the necessaries of life to a dependent; fraud; misappropriation of funds by a person in a position of trust; and theft by power of attorney (section 331). The sentencing provisions in section 718 of the Criminal Code, providing that evidence that the offence was motivated by bias, prejudice or hate, based on age shall be deemed an aggravating factor for sentencing (718.2(a)(i)), are also important in this context. Section 718 also recognizes intimate partner abuse (718.2(a)(ii)) and abuse of a position of trust or authority in relation to the victim (718.2(a)(iii)) as aggravating factors.
The criminal law has unique and significant attributes as a response to elder abuse, but also important limitations. Treating instances of elder abuse as crimes, where the elements of the criminal definition are met, denotes the seriousness of the offence and the social opprobrium that attaches to it. The criminal law can also provide meaningful protection for victims by removing, restraining or incarcerating offenders and/or providing restitution. Unless a relatively narrow definition of elder abuse requiring legal response is adopted, restricted to the elements of the offences set out in the Criminal Code, the criminal law alone may not be able to respond to the complexity of elder abuse, however. The “transactional model of crime that isolates and decontextualises violence… conceals the reality of an ongoing pattern of conduct occurring within a relationship characterised by power and control.” The criminal paradigm, and the criminal law, cannot provide a complete response to elder abuse.
Unlike some American states, no province currently has an “elder abuse” statute. The types of elder abuse referred to above fall within the scope and application of a range of statutes that may apply to older adults but are not specific to the older demographic. The applicable provincial legislation may be categorised as follows:
· Domestic violence legislation (applying in the family context and to physical, sexual and emotional/psychological abuse and, less frequently, material exploitation/financial abuse, depending on the particular statute in question). The objective of domestic violence legislation generally is to “reduce and prevent family violence and facilitate legal protection for victims by providing speedy civil remedies.” Intervention in cases of domestic violence (as provided for in the legislation) will be self-generated by the victim.
· Adult protection legislation (applying in the family and non-familial context, to physical, sexual and psychological abuse and to self-neglect, and to material exploitation/financial abuse depending on the particular statute in question). Applicability is generally limited to adults who are incapable or who cannot otherwise access assistance independently. In New Brunswick, uniquely, protection for elderly and disabled persons is provided for in the Family Services Act (which also provides for child protection). The primary objective of adult protection legislation is to connect individuals with social and medical services as necessary. Adult protection legislation, in contrast to domestic violence legislation, provides for intervention initiated by third parties.
· Human rights legislation (Article 48 of Quebec’s Charte des droits et libertes de la personne has been interpreted to provide broad protection to “aged and disabled persons” from exploitation). Unlike adult protection legislation generally, damages (as opposed to connection with services) are the available remedy. It applies in the family and non-familial context, to physical, sexual and psychological abuse and to self-neglect, and to material exploitation/financial abuse.
· Institutional abuse legislation (applying in the institutional context and, depending on the particular statute in question, dealing with physical, sexual and psychological abuse and to material exploitation/financial abuse). Abuse is generally defined broadly. Institutional abuse legislation, like adult protection legislation, provides for intervention initiated by third parties.
Developing an anti-ageist approach to legislation has significance for elder abuse and exploitation in two distinct ways. Negative ageist attitudes and assumptions, on both the individual and the social level, contribute to elder abuse and exploitation. Existing legislation of general application such as domestic abuse violence or legislation that does not take the particular situation and needs of older adults into account is also ageist as it has the effect of excluding older adults from the scope of their protection. The legislation discussed below will be analysed with reference to both aspects of ageism.
A. Current legislation in Ontario
Ontario has relatively little legislation in any of the areas discussed above: no domestic abuse/violence legislation; no adult protection legislation; and no explicit/specific institutional abuse legislation. The “Residents’ Rights” (including the “right to be treated with courtesy and respect and in a way that fully recognizes the resident’s dignity and individuality and to be free from mental and physical abuse”) and reporting provisions of the Ontario legislation applying to nursing homes, charitable homes and rest homes are not “abuse legislation” in the same sense as the other statutes discussed in this section (and indeed do not include a definition of abuse) but are or may be applicable in abuse situations.  Similar to the institutional abuse-specific legislation considered here, the Ontario legislation creates a duty to report suspected abuse.
The Substitute Decisions Act creates a duty for the Public Guardian and Trustee to investigate where persons are alleged to be incapable and may suffer adverse effects to their person (s. 62) or property (s. 27). The Public Guardian and Trustee will act only where the person making the complaint is able to provide evidence of the alleged incapacity and the serious adverse effects which have occurred or may occur; in terms of response, the role of the Public Guardian and Trustee is to connect individuals with services.
The main thrust of Ontario’s response to elder abuse has been non-legislative; the development of a comprehensive (not explicitly legal) strategy. In 2002, the government introduced a “Strategy to Combat Elder Abuse.” The Strategy involves three main “planks”:
The “Strategy to Combat Elder Abuse” was developed by the Ontario Seniors Secretariat (OSS) and implemented by the OSS in partnership with the Ontario Victims Services Secretariat, Ministry of the Attorney General and Ontario Network for the Prevention of Elder Abuse. Elder abuse consultants promote and support efforts to address and prevent elder abuse, and act as resources to justice and community service providers.
The Strategy to Combat Elder Abuse also includes a “Prevention of Elder Abuse Policy and Program Lens,” which provides a standardised approach to evaluating policies, practices, and programs to test their support for the rights, dignity and safety of older adults. The Ontario Network for the Prevention of Elder Abuse has also launched a province wide hot line to provide information, referrals, and support for abused and at risk seniors.
The key question is whether the non-legislative approach taken in Ontario is adequate to take into account the needs of older adults victimized by abuse or exploitation, or whether legislation is required that would enable intervention in the situation. The question is controversial; it may be argued that intervention, in cases where an adult is not incapable and where no crime has been committed, would violate a person’s right to privacy and autonomous decision making protected by section 7. Others may argue that not providing for intervention in cases of abuse and exploitation is a violation of section 7 rights and takes away from the human dignity of the individuals affected and is, in any event, justified as “demonstrably justified in a free and democratic society” in the same way that domestic violence legislation is justified.
a) Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?
The non-legislated approach specifically avoids this problem. A criticism of legislation applying to elder abuse and exploitation where the adult is not incapable is that it effectively infantalizes older adults by equating them to children “in need of protection.” Where a person is incapable, the Substitute Decisions Act provides for intervention by the Public Guardian and Trustee, but incapacity must be established.
b) Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?
The key players in the system, in design and implementation, are organisations of long standing with particular knowledge of and expertise in elder abuse and exploitation, and their implementation of the policies can be expected to be actively non-ageist.
c) Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?
It may be argued that, rather than “infantalizing” older adults as discussed above, legislation that applies to elder abuse and exploitation generally (and is not limited to the incapable) recognises that many (but not all) older adults are more vulnerable to abuse and exploitation than younger individuals and in fact are more likely to suffer this kind of harm. Refusing to recognise and provide for this real difference, pretending that older adults are “just like” younger ones and therefore just as “good,” is itself a form of discrimination. The debate can only be resolved through empirical research and greater knowledge about elder abuse and exploitation, and the effectiveness of different legislative and non-legislative approaches to the problem.
B. Elder abuse and exploitation: Canadian legislative review
Comprehensive “elder abuse legislation” of the kind which exists in some American states has been criticised for “attempting to merge concerns about many issues into one broad prohibition against mistreatment of the elderly.” In this respect, “[r]esponses to elder abuse may be attempting to accomplish too much for too many persons.”
Canada’s provinces have taken a different approach. Different aspects of elder abuse may be dealt with or addressed within non-elder abuse specific legislation: legislation concerning domestic violence or abuse; institutional abuse legislation; and adult protection legislation for a (non-age specific) class of adults defined with reference to incapacity or the inability to independently access assistance. Article 48 of Quebec’s Charte des droits et libertés de la personne and the provisions of New Brunswick’s Family Relations Act applying to protection of the elderly from abuse are exceptional elder specific provisions within legislation of much broade