Legal Definitions of Elder Abuse and Neglect
2.2 Court decisions
To date there is not a single reported Canadian court decision containing a definition of elder abuse. There does exist, however, a number of documented criminal and civil cases involving elderly victims in which the advanced age of the victim is highlighted. Often the victim's age emerged as a factor germane to sentencing (in the criminal context) or the assessment of damages (in the civil context), rather than being relevant to the issue of guilt or liability. Although a formal definition remains absent from these decisions, they do shed a small amount of light on the meaning of elder abuse and neglect in Canadian law.
This case law review focuses on decisions made in the last decade for a number of reasons: one, the language of "elder abuse" figures more prominently in these more recent cases such that if one highlighted only the decisions with the richest discussions of elder abuse and neglect these cases would be chosen for analysis; two, the sheer volume of decisions involving elderly victims would amass a thick collection of summaries of marginal utility to the project of understanding the judicial perception of elder abuse; three, the nature of judicial decision-making and the reliance on past decisions is such that more recent cases reflect on older decisions and incorporate principles that continue to be of value in contemporary society. Therefore, although this list is not exhaustive, it does provide a thorough summary of the judicial perspective on elder abuse and neglect. Given that a large number of cases involve elderly victims and very few mention elder abuse and neglect specifically, this approach becomes the best means to navigate the jurisprudence effectively and efficiently.
The failure to provide cases largely involve adult children who reside with an aged and ill parent and allow that parent to die or devolve to a state of extreme malnourishment, personal hygiene and filth.25 In most cases the accused pled guilty and in determining what sentence to impose, s.718.2 of the Criminal Code was invoked because of the age of the neglected vulnerable adult and/or the offender abused his/her position of trust.
Although subsection 718.2(a)(i) makes reference to "bias", our review indicates that in practice the judiciary drew attention to age and vulnerability without concern as to the presence or absence of prejudice toward elders, except insofar as crimes that target elders for victimization might be described as demonstrating bias. In this sense the restrictive language of "bias, prejudice or hate" in relation to age was not a limiting factor.
Alternatively, in the majority of the decisions we reviewed, in contexts where there was an elderly victim, the courts referred to the requirement in subsection 718.2(a)(iii) that "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim" be deemed an aggravating circumstance for the purposes of sentencing. This emphasis on "breach of trust" is consistent with definitions of elder abuse and neglect most often found in Canadian (both federal and provincial/territorial) and international policies, reports, consultations and strategy documents that limit the concept to relationships of trust.
2.2.1 Criminal Neglect: Failure to provide the necessaries of life
As the following summaries illustrate, the word "neglect" fails to capture the extreme living circumstances of the older adult giving rise to the offense at issue:26
- R. v. Noseworthy27:
Noseworthy was convicted of manslaughter on the basis that his abuse and neglect of his elderly mother contributed significantly to her death and also, upon his plea of guilty, of failing to provide her with the necessaries of life. Noseworthy lived with his 78-year-old mother in her home. She suffered rapid onset Alzheimer's disease, and was cognitively and communicatively impaired and incontinent. Noseworthy admitted to physically assaulting his mother. Almost every room of the house, including the furniture, was covered in urine and feces. Despite the fact that his mother was extremely malnourished and in need of physical and medical assistance, Noseworthy took no steps to attend to her. In the final days of her life, he left her lying motionless and starving on the floor.
The court decision states that she died as a result of congestive heart disease and
"elder abuse and neglect". The aggravating factors predominated in this case. The unrelenting abuse and neglect in this case, the moral culpability of Noseworthy, as well as his breach of trust, were all aggravating factors. Noseworthy was sentenced to imprisonment for seven years for manslaughter and to two years for failing to provide the necessaries of life, to be served concurrently.
- R. v. Peterson28:
This case involved an appeal by Peterson from his conviction and sentence for failing to provide necessaries of life to his 84 year old father, who was diagnosed with dementia (Alzheimer's). Peterson occupied the second floor of the three-story family home he shared with his father, who lived in the first floor and basement of the house. Peterson kept the doors between the apartments locked when he was out, but had access to his father's living space. The father's apartment was filthy, filled with cockroaches and lacked both a working kitchen and toilet. The dirt floor of the basement was covered in dog feces. The father's clothing was unwashed, as was his person, and he dressed inappropriately for the weather. He was often disoriented and frequently locked himself out of the house. Police found the father dirty, hungry and incontinent. Peterson's father was unable to provide himself with the necessaries of life. Peterson owed a duty to provide his father with the necessaries of life and he failed in his duty. Peterson was sentenced to a period of six months incarceration, two years probation and 100 hours of community service.
- R. v. Nanfo29:
This case involved the sentencing of Mary Nanfo, upon her plea of guilty to a charge of failing to provide the necessaries of life to her elderly mother. Nanfo had always lived with and relied on her parents. After her father's death, Nanfo's mother became increasingly dependent on Nanfo. The elderly woman was obese, suffered from health problems including heart attacks, was almost completely blind, was diagnosed with dementia, and was incontinent of urine and stool. Nanfo was a poor caregiver and the living conditions in the home were unsanitary: the floors, walls, furniture, and bedding were covered in feces, and garbage was piled everywhere. The staircase to the upper level had no barrier, creating a safety hazard for the virtually blind woman. Nanfo was often absent from the home for long periods of time leaving her mother alone with no supervision. Nanfo's mother had not seen a doctor for years. The woman died of a heart attack and her daughter waited more than 24 hours before calling the police. The police found the elderly woman on the floor, covered in human feces.
While acknowledging the grotesque circumstances of this case, the Court considered as pivotal the absence of intentional cruelty or intentional physical abuse and the defendant's acceptance of responsibility through her guilty plea, in concluding that a conditional sentence was adequate to meet the recognized sentencing objectives. Nanfo was sentenced to imprisonment for one year to be served as a conditional sentence in the community.
- R. v. Grant30:
Margaret Grant pled guilty to a charge of failing to provide the necessaries of life to her ill 78-year-old mother. Grant called 9-1-1 emergency services reporting that her mother wasn't feeling well and that she needed help. The paramedics found the elderly woman seated on a chair, wearing nothing but shorts and a camisole, looking pale and thin. When they lifted her from the chair, they found that she was sitting in feces and urine that had clearly been there for some time. There was also a pool of liquid on the floor under the chair from the "oozing" rotten flesh on the woman's legs. There were wounds on her arms, elbows and ear. She was admitted to hospital suffering from
"multiple decubitus ulcers, profound malnutrition, sepsis, extensive wet gangrene and dehydration". Doctors noted the gangrene in her legs was so advanced that her leg bones and tendons were exposed and her flesh was rotting. Her legs were bent into a sitting position and she had lost the ability to walk. There were massive sores on her buttocks. Some of her organs were exposed. She was also suffering from malnutrition. Due to her poor condition on admission she died of heart failure a few days later.
As aggravating factors, the Court considered the abuse of Grant's position of trust in relation to her mother, the age of the victim, the daughter-mother relationship, that Grant knew or ought to have known that her mother was suffering from conditions requiring medical attention, that Grant was financially benefiting from living with her mother, the period of time during which the offence took place, and that Grant chose not to call community services for assistance. The Court held that where an individual has a legal duty to care for a dependant, but he or she is unable to provide the necessaries of life to the dependant, he or she is required to inform the proper authorities. Grant was sentenced to four years in prison.
- R. v. Chappell31:
While in Chappell's care, Isabel Gerrard developed septic bedsores and ulcers, became malnourished and dehydrated, and she was not seen by a medical doctor, as required. Chappell did not seek medical treatment for Gerrard's bedsores, despite the fact that such treatment was clearly necessary. Gerrard died in hospital a few days after being removed from Chappell's care. Chappell failed to seek medical assistance when it was clearly necessary; it was her duty to summon assistance if she could not fulfill her responsibility of caring for Gerrard. Chappell was in a position of trust with Gerrard, who as a result of her age and mental and physical ill health was dependent upon Chappell for care; the abuse of trust in this case was an aggravating factor.
The Court held that the necessity of denouncing Chappell's conduct and deterring others from committing the same offence called for a custodial sentence. A period of incarceration, followed by a period of probation was the most appropriate sentence in this case, and was necessary to 'bring home' to Chappell her responsibility for her offence. Chappell was sentenced to 12 months incarceration followed by 18 months of probation.
In each of the above cases the decision-makers considered the behaviour at issue an example of elder abuse or neglect, as evidenced by the following words of condemnation:
The sentence must bring home to other like-minded persons that abuse of elderly helpless parents in their care will not be tolerated. The imposition of a term of imprisonment has a denunciatory component in that it not only condemns the particular offender's conduct, but communicates and reinforces a shared set of values…[T]he need to ensure that this offence carries the required stigma would not be met by a conditional sentence in this case.32
On the whole of these circumstances, I am of the view that the sentence, which I have to impose on the accused, must be sufficient to denounce the fact that Margaret Grant committed a serious breach of her legal duty to care for her elderly sick mother, as well as serve as general deterrence to any other like-minded individual who has been or might be in a similar position…This society is not prepared to tolerate such abuse or neglect of our most vulnerable.33
188.8.131.52 The conceptual relationship between abuse and neglect
Despite invoking the language of adult abuse and neglect, none of the five cases reviewed in this section—the most vocal cases on record with respect to adult abuse and neglect—contains an explicit definition of elder abuse. Notable in terms of the lexicon of elder abuse is that abuse and neglect are not treated as different types of mistreatment, rather they appear to fall on a continuum with extreme neglect being so grievous as to transform neglect into a form of abuse. With the exception of the Noseworthy decision, the section 215 cases do not involve behaviour described as physical violence. However, in Nanfo, the judge refers to the neglected elderly man in Petersen as
"the abused senior"34, and goes on to state:
It is clear from the Peterson decision that, in similar cases, a sentence of imprisonment is appropriate and necessary in order to properly reflect the gravity of the offence, to denounce the abuse of elderly helpless parents and to satisfy the principles of deterrence.35
His words characterize both Nanfo and Petersen as abusive, not strictly neglectful, caretakers. Similarly, in our earlier quotation, the judge in Petersen described Petersen's treatment of his father as abusive. Assault and abuse are not equivalent in the judicial lexicon: though not exhaustively defined, abuse denotes a broader concept than assault or deliberate acts of violence, and an omission may be abusive. Although the cases fail to define elder abuse, this aspect of the meaning is clear from the criminal jurisprudence.
184.108.40.206 Vulnerability and abuse
Implicit in the definition of elder abuse is the notion of vulnerability and dependence. In the Noseworthy decision the judge states, in drawing parallels between the neglect and abuse of elders and children,
"in each case, the victims are innocent, utterly vulnerable and defenceless"36. In considering the appropriate sentence the judge adds:
The elderly who are frail and cognitively impaired and vulnerable to attack and neglect and are powerless to prevent such treatment deserve the special protection of the court by the imposition of a sentence that will deter other likeminded individuals and which will make it clear that such conduct is not only inexcusable but will not be tolerated.37
In Petersen the judge insists
"the abuse of elderly helpless parents in their care will not be tolerated"38.
These and other references to vulnerability raise the issue of whether, conceptually, vulnerability is an aspect of the definition of abuse or a characteristic ascribed to the circumstances of seniors broadly. If elder abuse is so reprehensible because it is a harm committed upon a vulnerable person, is an act of violence or a criminal omission only elder abuse if that particular individual was vulnerable by virtue of advanced age and associated illness? For certainly many older adults remain hardy into their advanced years, while others are especially vulnerable due to age associated illnesses.
What distinguishes elder abuse from other wrongs committed against older persons? The above cases suggest it is not just age but also "vulnerability". However, the conceptual relationship between vulnerability and elder abuse and neglect, like the definitions of elder abuse and neglect, can only be inferred from the jurisprudence; the relationship between vulnerability and abuse is not explicitly stated. Rather, the decisions appear grounded in a well-meaning paternalism toward at least a subset of seniors, arguably a form of ageism itself barely cloaked in the language of "vulnerability".
220.127.116.11 Dependency and abuse
Dependence is another emergent theme. The "failure to provide" cases tend to contain detailed analyses of the relationship between the elderly person and neglectful caregiver, as the nature of the relationship is key to whether a duty of care arises and has been breached. Dependency and breach of trust are certainly relevant to a crime involving a failure to care for someone in the charge of another; however, dependency may not necessarily be a component of a definition of elder abuse that would be relevant in all situations involving the abuse of an older adult. It seems possible to abuse an individual not under one's care. Put another way, caretakers are not the only people who can abuse older adults. The review of home invasion cases in the following section provides us with examples of non-caretakers (in most cases strangers) committing violence against older adults in a manner that may meet a definition of elder abuse.
2.2.2 Acts of violence against elders: The home invasion and assault cases
Another cluster of reported decisions involving elderly victims are the home invasion cases prosecuted under the breaking and entering and robbery provisions of the Criminal Code. Like the sexual assault cases (discussed further in this report), they differ from the section 215 cases in that they involve an action rather than an omission. They involve acts of physical violence against older adults. Unlike the section 215 cases, they do not mention abuse.
18.104.22.168 The community as victim
The home invasion jurisprudence underscores the particular vulnerability of seniors, characterizing the targeting of a single elderly person for attack as a crime that impacts the community of seniors more broadly—either all seniors living in a particular community or all the older adult residents in Canada. Judge Gorman states in R. v Lasaga that,
"the elderly are often terribly vulnerable and offences of this nature cause alarm and fear to all of them that live alone"39. There is a sense that a crime against one senior may affect all seniors, suggesting that elder abuse may present a complex abuser-victim relationship and that a narrow conception of only one victim and one offender may obscure the true harm affected by one particular act of violence. Elder abuse may be a broad category capturing diverse and indirect harms.
22.214.171.124 Vulnerability and age-related harms
The notion of vulnerability is again reflected in the home invasion cases. The strongest statement to this effect is contained in the following French quotation from the decision in R. c. Riendeau:
Ces séquelles démontrent suffisamment, à mon avis, les conséquences malheureuses et inacceptables que des événements qui nous intéressent peuvent avoir chez des victimes innocentes, particulièrement pour des personnes âgées, par définition, vulnérables et sans défense.40
In R v D.A.W., a case involving a weapon (a knife) and the sexual assault of the female victim, the judge states:
[T]his incident has resulted in a change of attitude in the residents of a peaceful, rural community. This sort of activity, unfortunately, has the capacity to considerably damage the fabric of our society…It is all too often directed at people, like the victims in this case, who are essentially defenceless against such violence.41
In R v. Harris, an especially violent home invasion had particularly serious consequences for the elderly couple victimized due to the age of the victims: the woman broke her hip when she was pushed to the floor and the man suffered such severe injuries that he lost the ability to live independently.42 R. v Billings, which also involved an elderly female victim, similarly resulted in a loss of the ability to live independently.43 These cases reflect the somewhat unique stakes at issue in the context of elder abuse: a human fragility and a tenuous relationship with independence. This points to another potential component to the definition of elder abuse: impact. There is a sense from these cases that the consequences of a behaviour may be one of the features that marks an action or set of actions as elder abuse. R c. Bikao contains similar language:
On parle d'une vie anéantie, du rêve brisé d'une retraite dorée. Monsieur Papillon doit maintenant s'occuper de sa femme en perte d'autonomie suite à l'AVC. Cet accident vasculaire cérébral n'était peut-être pas prévisible pour l'accusé, mais lorsqu'on s'attaque à des personnes âgées, tout peut arriver et on doit en assumer les conséquences.44
R. v Okumu45 is the single recently reported sexual assault case involving an older person. In this case, an elderly women resident of a care facility was sexually assaulted by one of her male caretakers. She suffered from dementia. The breach of trust element of this crime, the assault of a very vulnerable human being under his care, is what lends this offence to particularly severe condemnation by the judge. Justice Brooker categorizes the incident as falling into the category of serious sexual assaults, regardless of whether any penetration had occurred.46
In sentencing the judge in the Harris case was concerned with deterring offenders from "preying" on the elderly:
I think the primary emphasis in imposing sentence today has to be to denounce unlawful conduct, to deter Mr. Harris and other persons from committing similar offences and by similar offences I mean the type of offence where people prey on elderly people in their own home with actual or potential for violence.47
In each of the above cases the notion of the elderly person's vulnerability again emerges as a notable aspect of the crime in the eyes of the decision-maker, characterizing elder abuse as an abuse of power. In terms of the facts, vulnerability or perceived vulnerability renders the senior a target of violence; in terms of sentencing, vulnerability makes the crime particularly despicable. This notion of power may be key to a definition of elder abuse. The undue influence cases discussed below explore this notion further.
Riendeau, a case from Québec, is notable for its reference to the language of rights. The judge frames violence against the elderly as the violation of a right to peace and security:
Il me semble pourtant que les personnes âgées ont le droit de vivre les dernières années de leur vie dans la sécurité, dans la paix et dans la quiétude de leur domicile, sans des séquelles semblables à celles qui marqueront à tout jamais les victimes de l'accusé.48
This language makes sense insofar as the closest thing to a definition of elder abuse in Québec's provincial laws is in the Charte des droits et libertés de la personne, though interestingly, this case, prosecuted like all home invasion cases under the federal Criminal Code of Canada, does not cite the Québec Charte des droits et libertés de la personne.
2.2.3 Fraud and undue influence—civil and criminal jurisprudence
Fraud and undue influence—the tort and the criminal offense—are the legal embodiment of the concept of financial abuse. In Canada there are a number of reported financial abuse decisions involving older adults, the most recent summarized below. The cases largely fall into two categories. Most of the civil cases involve family members alleging that another family member has manipulated an older person into transferring funds, changing a will or signing a power of attorney, resulting in funds being transferred to the benefit of the defendant family member. These are abuse of power cases. The second category of financial abuse cases are the civil and criminal court decisions involving business schemes that make false representations, many specifically targeting seniors.
126.96.36.199 The undue influence jurisprudence: vulnerability and abuse of power
Below, a selection of the undue influence decisions is summarized:
- Kapacila (Litigation Guardian of) v. Otto49:
This was an action by the 94-year-old plaintiff Kapacila's litigation guardians, her niece and grandniece, against the defendant Ottos, Kapacila's niece and her husband, to recover $220,000 that the Ottos allegedly wrongfully took from Kapacila in 1999. Kapacila suffered from a progressive mental infirmity that negatively impacted her mental capacity. The action was for breach of trust, undue influence, conversion, negligence, breach of fiduciary duty and unjust enrichment. The Ottos submitted that $18,000 of the money was a gift, and they held the rest in trust for Kapacila to look after her expenses and funeral arrangements pursuant to a trust agreement that the defendants wrote out as Kapacila was illiterate. The defendant niece was not very close to Kapacila, having occasionally visited and corresponded with Kapacila throughout her life. The litigation guardians were close to Kapacila and had regular contact with her, including driving her to appointments and caring for her during illnesses.
According to the Court, the Ottos' relationship with Kapacila raised the presumption of undue influence, the presumption of which was not rebutted in court. The Court found that the Ottos were aware that Kapacila was completely dependent upon them for food, shelter, transportation, translation and even legal advice. The Ottos were found to be aware that they were dealing with a 90-year-old woman who regularly exhibited signs of confusion, anger and anxiety and took advantage of this for their own financial gain. The action was allowed. The gift and trust were set aside as being void ab initio.
- Lowery v. Falconer50:
The deceased's, Kathleen Noreen Pollard, most recent will was dated August 2, 2005; she had signed a previous will on December 23, 2002. The two wills were substantially different: the 2005 will named the deceased's grandniece and the grandniece's husband (the Falconers) as the sole beneficiaries and executors of her will; the 2002 will made provisions for Mrs. Pollard's disabled brother as well as certain charitable organizations. Prior to her death, Mrs. Pollard also transferred her home to the Falconers, which up until then had been intended for her disabled brother. The Falconers subsequently sold that property. Upon learning of the transfer, Mrs. Pollard's sisters commenced an action roughly 8 months before Mrs. Pollard's death alleging, among other things, undue influence by the Falconers and that the transfer was void or voidable. They also alleged that the Falconers fraudulently took money from Mrs. Pollard's bank account and converted Mrs. Pollard's money by using her credit card to withdraw cash. The Falconers failed to meet their burden as the propounders of the 2005 will.
The Court found that Mrs. Pollard's declining mental and physical health, which was exacerbated by her concern to look after her disabled brother, increased Mrs. Pollard's vulnerability to the Falconers' ability to exert undue influence on her. The Court further found that the fact that the lawyer who drafted the 2005 will was incorrectly advised by the Falconers as to why Mrs. Pollard needed the will, coupled with the fact that Mrs. Pollard left her brother completely out of the will, indicated she lacked testamentary capacity at the time the 2005 will was made. The Court set aside the 2005 will and pronounced the 2002 will valid. The Court also ordered the funds of sale of property to be held in trust for the estate. Special costs were awarded against the Falconers.
- Sabol (Trustee of) v. Rousseau51:
This was an action by the elderly plaintiff, Mary Sabol, against her sister, brother-in-law and her nephew, for the return of money in the sum of $320,750. The plaintiff was currently a dependent adult and was represented by her trustee. The plaintiff alleged that the defendants took all of her funds by undue influence, breach of fiduciary obligation or breach of trust and that the funds rightfully belong to her during the time she lived with them. This included the transfer of her home to the defendants. The defendants denied, claiming she had either lost the money or she had validly gifted the funds to them. The plaintiff did not have a particularly close relationship with the defendants until she began experiencing cognitive issues and subsequent paranoia, at which point she moved in with the defendants.
The Court found that Sabol was a person of unsound mind during the times that the alleged gifts were made. While the defendants claimed that the gifts were thank-you gifts from the plaintiff in return for them looking after her, the Court found that the amount of the gifts were not in proportion to the services provided by the defendants. The Court found that the defendants abused and took advantage of a person they knew to be vulnerable and one against whom they knew they were in a favourable position to influence. The defendants failed to rebut the presumption of undue influence. The action was allowed and judgment given in favour of Mary Sabol in the sum of $329,000 (the value of assets deemed to be depleted by the defendants). In partial satisfaction of the judgment, the Court ordered Sabol's home to be transferred back to her at a value of $120,000 and the sum to be credited to the judgment thereafter.
- Vranic (Re)52:
Mr. Vranic was an elderly man who suffered from dementia. Mr. Vranic was deemed incapable of managing his finances or himself. He was confused as to day and time and did not have an understanding of his health conditions, including diabetes and a previous stroke. Initially placed in a long term care facility, he was removed by his eldest daughter Bernice. Bernice prevented Mr. Vranic from seeing or interacting with his other daughter and son. She also had Mr. Vranic create a power of attorney document naming Bernice as his attorney, although it was established that Mr. Vranic failed to have the mental capacity to execute the document. Bernice also regularly prevented Mr. Vranic from attending medical appointments, including ones with a geriatric social worker. She was also found to be spending Mr. Vranic's money without properly accounting to the estate. Mr. Vranic's other children, Nina and John, commenced an action seeking to be named committee of their father's person.
Based on the evidence before it, the Court found that Bernice would not exercise her duties and powers in a selfless manner demanded of a fiduciary and would not strive to serve her father's best interests emotionally or socially. The Court concluded that Mr. Vranic's best interest was to have John and Nina appointed as co-committees of his person as they had exhibited a genuine concern for his well being throughout the litigation proceedings. The Action was allowed. John and Nina were appointed co-committees of their father's person.
At the heart of the concept of "undue influence" is the notion of an abuse of persuasive authority. In the civil law context undue influence requires the presence of
"confidence and dependence on the one side and advice and persuasion on the other"53. In the decision Kapacila, the judge relies on the following description of "influence" from Geffen v. Goodman:
…It seems to me rather that when one speaks of "influence" one is really referring to the ability of one person to dominate the will of another, through manipulation, coercion, or outright but subtle abuse of power.54
As in the criminal jurisprudence, the notion of vulnerability figures prominently in the undue influence cases, although the language of abuse remains absent. In Sabol the judge refers to abuse, stating that the defendants
"abused and took advantage of a person they knew to be vulnerable and one against whom they knew they were in a favourable position to influence."55 Mrs. Kapacila is referred to as a
"dominated, vulnerable mentally incapacitated 90 year old lady who was easily swayed by whomever was with her"56 . Mrs. Pollard was
"a vulnerable elderly woman whose health was rapidly declining"57.
Justice Macaulay summarizes the undue influence cases as follows:
There is also an aspect of vulnerability in such cases; those with dementia experiencing executive dysfunction‘may be vulnerable and dependent on others to support them and ensure their protection’. This, in turn, leads to the possibility that such a person is more trusting and suggestible than would otherwise be the case.58
These are cases about violations of a trusting relationship and in this respect they recall the neglect cases caught by the failure to provide the necessaries of life provisions. They require as a precursor to abuse the existence of a relationship between the abuser and victim. In this sense they differ from the fraud cases discussed below, which involve deceitful strangers. The judicial perception of elder abuse includes both ongoing harms and single incidents. As the discussion of Canadian policy illustrates, this consensus is not reflected in other realms where definitions of elder abuse are created. Among policy-makers the question of whether elder abuse is defined to include offenses occurring outside of relationships of trust, that is by a stranger, is unsettled.
188.8.131.52 Fraud: Preying on older adults
Fraud cases are dealt with in both the criminal and civil context. Below are facts gleaned from a number of cases:
- Carrigan v. Peacock59:
The plaintiff, Carrigan, was an elderly man at the time of the alleged fraud. He read an article in the SeniorsPlus newspaper written by Moran advertising an investment vehicle to seniors. Moran had been promised a fee by other individuals involved in the scheme for promoting the investment scheme to his readers. In a meeting with another individual, Peacock, Carrigan was promised high yields and a guaranteed return. Carrigan only received two small cash payments of alleged interest on his investment. Carrigan commenced an action against SeniorsPlus and Moran for damages, including aggravated and punitive damages, for fraudulent misrepresentation. Peacock and another individual were subsequently charged and convicted of fraud in relation to the scheme. The action was allowed.
The Court found that the representations made by Moran in the article, and by Peacock in his personal meeting with Carrigan were patently false. The Court also found that Moran intended for individuals like Carrigan to rely on his representations and the established trustworthiness of SeniorsPlus. Moran made the false representations with reckless disregard as to their truth. He did not make attempts to verify that the investments were insured or that they would generate the promised returns. The Court further found that the stress induced by the transaction caused Carrigan's medical conditions to worsen from a very healthy, alert and active elderly man to a weakened, more anxious person who had suffered two strokes and was, as a result, dependent on daily medication. Carrigan was entitled to damages against Moran and SeniorsPlus representing the amount of his investment, plus aggravated damages of $30,000 and punitive damages of $25,000.
- R. v. Rockett60:
This was an application by the Crown for leave to appeal from the 42 month sentence imposed on Rockett following his guilty pleas to 15 charges. Rockett went on a 10 year crime spree across Canada, between 1997 and 2007. He defrauded elderly people of deposits they paid him to do work on their properties. The Court found that the sentencing judge did not give proper weight to the aggravating factor that the respondent deliberately planned to prey on and victimize
"the most vulnerable in our society, the elderly". Leave to appeal was granted and appeal was allowed. A sentence of 62 months was imposed.
- R. v. Watson61:
This case involved the sentencing of Hilda Marie Watson, convicted of stealing more than $5000.00 from her brother, Ernest Leo Clark, contrary to section 334(a) of the Criminal Code. Evidence at trial indicated that Mr. Clark showed signs of cognitive impairment and subsequent rapid deterioration, at which point Ms. Watson began looking after Mr. Clark's finances. After suffering a fall, Mr. Clark was admitted to hospital. Shortly thereafter, his bank records indicated large withdrawals. On questioning, Ms. Watson stated that Mr. Clark intended for her to have the money and his account was in fact her "slush fund". The Court considered, as mitigating factors, the fact that Ms. Watson had no previous criminal record, she was an active and contributing member of her community, she had the strong support of her son and friends, she was unlikely to re-offend, and she provided care for Mr. Clark before he went to the hospital. As aggravating factors the Court considered that Ernest Clark was suffering from dementia and therefore vulnerable, that he trusted Ms. Watson and she betrayed that trust, that Ms. Watson did not show any remorse or understanding of the wrong she had done, the large sum of money taken by Ms. Watson, and that the motivation for taking the money appeared to have been greed rather than need. Ms. Watson was sentenced to serve 10 months in the community under house arrest, to be followed by one year of probation.
- R. v. Wa1l62:
The accused, Wall, conceived and formulated a fraudulent investment scheme. The primary victims were elderly persons who were deprived of their investment savings. The scheme involved a series of misrepresentations, both verbal and written, designed to mislead investors with respect to the risk of the investment. The Court found that Wall and his co-accused did not make any effort to make sure that only sophisticated investors were solicited. In fact, the Court found that nearly all the investors were naïve and poor and especially dependent upon the little income they had. The Court also found that the exploitation of these investors by the co-accused resulted in increased poor health and psychological stress to the investors. The fact that the investors were elderly or persons planning for their retirement was considered a significant aggravating circumstance, which warranted a harsher punishment. The Court further held that there was breach of trust on the part of the co-accused towards the investors and that the defendants abused and violated these trust relationships with the investors. Wall was sentenced to 18 months imprisonment for a distribution offence and 12 months consecutive for a trading offence.
- R. v. Evans63:
In April 2000, Stephen Charles Evans began looking after Lester Hoar as a paid caregiver 24 hours a day, 7 days a week. While a caregiver for Hoar, Evans wrote many cheques on Hoar's account. The cheques totalled $120,416.00 and were all signed by Hoar. Evans was charged with stealing money exceeding $5000 contrary to the provisions of section 334(a) of the Criminal Code and with defrauding an individual in excess of $5000 by deceit, falsehood or other fraudulent means contrary to section 380(1)(a). Despite the fact that it seemed that Evans had not spent the money for his personal purposes, and that Evan had provided care giving services to Hoar during the 14 month time period for which he would have been compensated, the Court found that the need for deterrence and denunciation of taking money from an elderly person was so great that incarceration was the only suitable way in which to express society's condemnation of Evans' conduct. Evans was sentenced to a term of imprisonment of one year, followed by a one-year probationary period.
The word abuse does not appear often in the fraud cases: only in R v. Wall is the fraudulent activity described as abuse.64
A major theme of the fraud cases is the reprehensibility of actions that target seniors, recalling some of the language of the home invasion cases. The case of Carrigan v. Peacock involved a claim for aggravated damages with respect to a dishonest investment scheme that precipitated a worsening of the elderly plaintiff's health, including two strokes. Aggravated damages were awarded at least in part from the fact that the defendant
"actively participated in the fraudulent scheme using his and his publication's position of trust with elderly readers",65 helping
"to prey on a vulnerable segment of our society"66. Similarly, but in the criminal context, in R v. Rockett, an aggravating feature in sentencing was that the offender targeted seniors:
"the reality of the situation is that the respondent deliberately planned to prey on and victimize the most vulnerable in our society, the elderly"67. In R. v. Evans, the judge states, relying on the reasoning in R. v. Alder:
If there is no emphasis on general deterrence in this type of case the message is that preying upon the elderly, the frail in body or mind, where their life savings have been stolen and squandered, will result in the offender serving his or her sentence in an extramural setting. This would be the wrong message to the public and to those with like-minded criminal intent.68
Although an explicit definition of elder abuse remains absent from the cases involving elderly victims, the analysis of sentencing and damages contained in the decisions suggests the following may be elements of the definition, were it stated directly. Elder abuse:
- includes extreme neglect;
- is broader, conceptually, than physical abuse;
- amounts to an abuse of power;
- is marked by vulnerability of the older victim;
- may involve a violation of a trusting relationship;
- may be made possible by the dependency of the victim;
- may cause harms specific to older victims (loss of independence, worsening physical frailty);
- may implicate more older victims than the direct target of an abusive action (a community or part of a community); and
- may be evidenced by the targeting of older adults for victimization (by strangers, friends, family members, etc.)
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