Legal Definitions of Elder Abuse and Neglect

2.0 CANADA

2.1 Legislation

2.1.1 Provinces and territories

2.1.1.1 Adult protection and guardianship legislation

In Canada, adult protection is primarily addressed at the provincial and territorial level and the various jurisdictions have taken different approaches to addressing the problem of adult abuse and neglect. Appendix A to this paper contains a table that summarizes the most relevant statutory provisions in each of the thirteen Canadian jurisdictions.9 A number of the provinces and territories have responded to the abuse and neglect of adults though adult protection and guardianship legislation.

None of these laws contain a broad definition of elder abuse and neglect per se. Some guardianship regimes define "abuse" in the context of a system intended to protect vulnerable or incapable adults. The definitions that fall into this category do not differ significantly from each other. The Yukon defines "abuse" and "neglect" as follows:

Abuse means the deliberate mistreatment of an adult that

  • (a) causes the adult physical, mental or emotional harm, or
  • (b) causes financial damage or loss to the adult, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy, denial of access to visitors, or denial of use or possession of personal property.

Neglect means any failure to provide necessary care, assistance, guidance, or attention to an adult that causes, or is reasonably likely to cause, within a short period of time, the adult serious physical, mental or emotional harm, or substantial financial damage or loss to the adult, and includes self-neglect.10

These comprehensive definitions capture physical, mental, emotional, sexual and financial abuse as well as neglect and self-neglect. For the purposes of comparison the most interesting aspect of these definitions other than their breadth is that British Columbia and the Yukon limit abuse to "deliberate" or intentional mistreatment.

Adult protection regimes, that do not include guardianship, follow unique approaches. Nova Scotia defines an "adult in need of protection" to include an adult who is a victim of abuse. Newfoundland and Labrador's Neglected Adults Welfare Act—the only neglect specific statute in Canada—defines neglect but not abuse. The statute states:

Neglected adult means an adult:

  1. who is incapable of caring properly for himself or herself because of physical or mental infirmity,
  2. who is not suitable to be in a treatment facility under the Mental Health Care and Treatment Act,
  3. who is not receiving proper care, and
  4. who refuses, delays or is unable to make provision for proper care and attention for himself or herself.11

Although New Brunswick's definition is particularly relevant in that it references the elderly, its tautological structure essentially defines an abused adult as an adult victim of abuse:

Where an adult is a disabled person or an elderly person, or is within a group prescribed by regulation, and is a victim of or in danger of

  1. physical abuse;
  2. sexual abuse;
  3. mental cruelty; or
  4. any combination thereof, that person is an abused adult…12

Saskatchewan and the Northwest Territories define family violence within their respective adult protection legislations, without guardianship—only an aspect of what would be captured by the concept of elder abuse and neglect.

These adult protection regimes do not show the same consistency as those that include guardianship, but rather are quite distinct from one another.

2.1.1.2 Legislated protection for adults living in residential care

Other responses include legislated protection for adults living in residential care. Manitoba's care facility recipient statute contains a similar definition.13 Alberta's very broad definition of "abuse" also requires intention but is tailored more to the experience of recipients of care, and in this sense it captures some of the specific vulnerabilities of an older adult. The definition states that abuse means:

  1. intentionally causing bodily harm,
  2. intentionally causing harm, including, but not limited to, threatening, intimidating, humiliating, harassing, coercing or restricting from appropriate social contact,
  3. intentionally administering or prescribing medication for an inappropriate purpose,
  4. subjecting to non-consensual sexual contact, activity or behaviour,
  5. intentionally misappropriating or improperly or illegally converting money or other valuable possessions, or
  6. intentionally failing to provide adequate nutrition, adequate medical attention or other necessity of life without a valid consent.14

Nova Scotia's care facility resident regulation also contains a lengthy definition but it omits the requirement of intention.15 Saskatchewan defines "financial abuse" under its Public Guardian and Trustee Act.16 No other jurisdiction defines "abuse" let alone "elder abuse". These combined adult protection and guardianship regimes consistently focus on more general definitions of "abuse", and include types of abuse with examples of behaviour that would fit each type.

2.1.1.3 Domestic violence legislation

Several provinces (Alberta, Manitoba, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Saskatchewan) and all three territories (Northwest Territories, Nunavut and Yukon) have enacted domestic violence legislation that provides civil remedies, such as emergency protection orders, to victims of family violence. Such legislation was drafted to address the more specific subcategory of spousal violence and does not refer specifically to older adults. However, as these statutes apply to various types of relationships (ie. marital, intimate, familial), their scope of application will implicitly include harms committed on older adults in the context of these relationships. The Nunavut legislation provides the most expansive list of types of relationships whereby it includes a "care relationship" defined as existing "between two persons, whether or not they have ever lived together, if one person is or was dependent on the other person for assistance in his or her daily life activities because of disability, illness or impairment."17 The terminology "daily activities" is defined as follows: "daily activities include personal grooming, preparing meals, shopping for groceries, taking care of financial affairs, making appointments and arranging transportation to appointments."18

Every Canadian statute of this kind uses the term "violence", with the exception of Nunavut where the word "abuse" is used. Different forms of violence are enumerated within most acts including physical abuse, damage to property, sexual abuse, an act, threat or omission causing reasonable fear of bodily harm or damage to property and forced confinement. Some acts also include psychological or emotional abuse (Manitoba, Yukon, Northwest Territories and Nunavut) with only the Nunavut legislation providing a definition:

  1. means a pattern of behaviour of any kind, including verbal statements, the purpose of which is to deliberately undermine the mental or emotional well-being of a person, and
  2. includes repeated threats made with the intent to cause extreme emotional pain to a person, a child of or in the care of a person or a family member of a person.19

Four domestic violence statutes (Prince Edward Island, Yukon, Newfoundland and Labrador and Nunavut) include the deprivation of food, clothing, medical attention, shelter, transportation or other necessities of life as a form of family violence. The Nunavut act also provides that "conduct of any kind the purpose of which is to control, exploit or limit a person's access to financial resources for the purpose of ensuring the person's financial dependency" is a form of family violence.20

2.1.1.4 Human rights legislation

All provinces and territories have enacted protections from discrimination on the basis of age in human rights legislation. Québec takes a somewhat more expansive human rights approach to defining and addressing elder abuse and neglect in their human rights legislation by adding a protection against exploitation. Section 48 of Québec's Charte des droits et libertés de la personne contains this broad statement on the rights of older adults:

Every aged person and every handicapped person has a right to protection against any form of exploitation.21

Exploitation is defined by the Commission as when:

  • you are an elderly or handicapped person and have suffered a moral or material prejudice from another person or an organization;
  • your old age or handicap affects you physically, mentally or psychologically to the extent that it places you in a situation of dependence.

Significantly, as with the protections from discrimination in other provincial and territorial human rights statutes, the protections enshrined in the Québec Charter have quasi-constitutional status, as it is considered a framework statute whereby other laws adopted in Québec must respect the text and spirit of the Charter unless they are specifically exempted from that law. Québec thus adds a quasi-constitutional status to this additional protection from exploitation. The Québec approach raises the question of whether there is value in imbedding somewhat broader rights to protection from elder abuse into human rights law: in other words, is elder abuse a form of discrimination that should also be seen as a human rights issue?

One of the most pressing issues emerging from these provincial and territorial definitions in the various legislations is whether elder abuse and neglect are by definition intentional acts or omissions.

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