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:

• failure to provide the necessaries of life (s.215);
• manslaughter (s.236);
• robbery (ss.344 (b)) and (ss.349 (1));
• sexual assault (s.271 (1));
• fraud (s.380 (1))
• assault (s.265)
• theft (s.322, s.331)
• uttering threats (s.264.1);
• forcible confinement (s.279)

According to the DoJ, the offence in the Criminal Code that comes the closest to creating an offence of elder neglect is covered under s.215 (1)(c) 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, with a maximum sentence of imprisonment for life. If a restricted or prohibited firearm is used, or any firearm is used for the benefit of or at the direction of a criminal organization, a mandatory minimum sentence of five years applies (seven years for a second or subsequent offence). In other cases there is no mandatory minimum. 

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 consentVoluntary agreement to engage in an sexual act 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 simple assault on summary conviction you face a maximum sentence of two years less a day 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 in jail. The value-based classification is set by s. 334.

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 may be treated as an indictable offence with a 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 as an indictable offence. If the Crown proceeds as a summary conviction you would face a fine of up to $5,000 and/or imprisonment for up to two years less a day.

The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove beyond a reasonable doubtThe high standard the Crown must meet to prove guilt. that you committed the specific offence charged. This includes the act and any required intent, knowledge, or other mental element. The Crown does not have to prove a separate item called "the witness is not fabricating." The court weighs each witness's credibility when deciding whether the Crown has proved the charge. If the evidence leaves a reasonable doubt, you must be found not guilty. 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.

Elder abuse is a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., which allows the Crown to proceed with the charge as an indictable offenceA more serious type of Canadian criminal offence. or by summary convictionLess-serious criminal 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.

The Criminal Code does not use 'elder abuse' as the name of one offence. Abuse or neglect of an older person may be charged under existing offences such as failure to provide necessaries of life, assault, criminal harassment, threats, forcible confinement, sexual assault, theft, fraud, robbery, or extortion, depending on the facts. The victim's age, health, financial situation, and other personal circumstances may also be relevant at sentencing.

Other offences may also apply depending on the facts, including offences involving unlawful entry into a dwelling-house.

The Criminal Code does not create one offence called elder abuse. The charge depends on what happened. The victim's age, health, financial situation, and other personal circumstances may also matter at sentencing.