QUICK TAKEAWAY
Elder Abuse comes in various forms and can include physical, sexual, financial and emotional abuse. There is no specific crime of elder abuse in the Criminal Code, and constitutional jurisdiction is shared between the provincial/territorial and federal governments. Instead, several sections of the Code can deal with cases where older people are harmed, including manslaughter, failure to provide the necessities of life, and sexual assault. You could face life in prison if convicted, depending on the section of the Code.
Table of Contents:
What is Elder Abuse?
According to the Canadian Network for the Prevention of Elder Abuse (CNPEA), crimes against the elderly can include sexual, systematic, financial or emotional abuse, neglect and violations of rights and freedoms.
Sexual abuse can occur if the victim is forced to engage in sexual activity, which can include verbal or suggestive behaviour or touching.
Systemic abuse is also known as institutional abuse and refers to policies, practices or regulations that harm or discriminate against the elderly.
Financial abuse is any effort to threaten, trick or persuade elderly adults out of their possessions and can include misusing a power of attorney.
If you threaten, intimidate, insult or humiliate an elderly person this would be considered emotional abuse, and includes treating the victim as a child or not allowing them to see their family and friends, according to the CNPEA.
Failing to provide the necessaries of life, such as medical care, food and shelter would be considered neglect even if it is not intentional.
It is considered a violation of rights and freedoms if you interfere with an older adult's ability to make choices, especially when those choices are protected under the law, such as traditions or spiritual practices. The CNPEA notes denying privacy, preventing visitors, dictating how the person can spend their money or withholding mail or information can be considered violations.
Different sections of the Code can be used to prosecute elder abuse:
Charges Used to Prosecute Elder Abuse
According to the D0J, the offence in the Criminal Code that comes the closest to creating an offence of elder neglect is covered under s.215 (1)(a) that creates an explicit duty on the part of a caregiver to provide the necessaries of life. However, other sections would also deal with crimes that cause harm to older individuals.
Failure to Provide the Necessaries of Life
Section 215 of the Code establishes a legal duty for everyone to provide necessaries of life to a person under his or her charge if that person "is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge." If this charge is prosecuted as an indictable offence the maximum penalty is a five-year prison term or a less harsh sentence if it is prosecuted as a summary conviction.
Manslaughter
Manslaughter is covered under s.236 of the Code and states that If you commit an unlawful act that causes the death of another person you could be convicted and imprisoned for life. Death is not planned and there was no intent to kill. There is no mandatory minimum sentence unless a firearm was used, in which case the minimum jail term is four years in prison.
Robbery
Section 343 of the Code makes it illegal to commit theft while using, or threatening to use, physical force. Robbery is always treated as an indictable offence. If a firearm is used, the maximum sentence is imprisonment for life, with a mandatory minimum sentence of four years. The mandatory minimum sentence increases to five years if you commit the offence for the benefit of, or at the direction of a criminal organization.
Sexual assault
The DoJ describes sexual assault as "any unwanted sexual act done by one person to another or sexual activity without one person's consent or voluntary agreement." Under s.271 (1) if you are convicted you face imprisonment for up to 10 years. If the charges proceed as a summary conviction you could be jailed for up to 18 months.
Fraud
Section 380 of the Code states that if you are found guilty of fraud over $5,000 it will be treated as an indictable offence with a maximum penalty of 14 years in prison. If the fraud exceeded $1 million, the minimum penalty you can face is two years in jail. If the alleged fraud is valued at less than $5,000, the Crown has the option of treating the charge as a summary conviction with a less severe penalty imposed.
Assault
The Criminal Code deals with the charge of assault starting at s.265 and states that you can face prosecution if you apply intentional force directly or indirectly on a victim without their consent. A threat that causes someone to believe they may suffer a physical injury may also result in an assault charge.There are several levels of assault, starting with simple or common assault and a wide range of penalties. If you are convicted of the summary offence of simple assault you face a maximum sentence of six months in jail and/or a $5,000 fine. Aggravated assault brings a maximum sentence of 14 years in jail.
Theft
Section 322 of the Code makes it an offence to take property from others without their consent, unless you honestly believe it is yours. There are various theft-related charges that cover elderly abuse including s.331, which makes it a crime for someone holding power of attorney to fraudulently sell, mortgage, pledge or otherwise dispose of the property of a person under their care. If more than $5,000 is stolen and the charge is treated as an indictable offence the maximum punishment is a 10-year prison term. The sentence is less harsh for charges treated as summary convictions. If the theft was valued at less than $5,000 and the charge is treated as an indictable offence, the maximum punishment is two years less a day in jail.
Uttering Threats
If you verbally threaten someone you could be charged with uttering threats under s.264.1 (1) of the Code. Threatening to cause death or bodily harm will be treated as an indictable offence with the maximum punishment of five years in prison.
Forcible Confinement
Holding someone against their will is considered forcible confinement under s.279 of the Code and is liable to imprisonment for a term not exceeding 10 years if it is treated and an indictable offence. If the Crown proceeds as a summary conviction you would face a term not exceeding eighteen months.
What is Needed to Convict
The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubt that you committed the offence and the victim is not fabricating the testimony against you. Any forensic evidence linking you to the crime can be challenged. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.
Treated as a Summary Conviction or Indictable Offence
Elder abuse is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, which allows the Crown to proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences or by summary convictionUsed for lesser offences. Being found guilty of an indictable offence carries penalties that are more severe than summary conviction.
The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
According to s.718.1 of the Criminal Code, a sentence "must be proportionate to the gravity of offence and the degree of responsibility of the offender." The vulnerability of a victim by virtue of age, disability or other similar factors comes into play and may have a significant impact on sentencing, according to the DoJ.
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Rotenberg Shidlowski Jesin - Criminal Lawyers
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
