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Practical Guide to Elder Abuse and Neglect Law in Canada

Federal Laws

This section covers:

  1. Key federal laws
  2. Criminal Code provisions relevant to prosecution for abuse and neglect
  3. Immigration law and family class sponsorship
  4. Privacy laws that apply to reporting abuse and neglect

Each section includes suggested resources.

1. Key Laws

2. The Criminal Code

2.1 Offences

The criminal law is under the federal jurisdiction, so the criminal offences in the Criminal Code[5] are the same in each province or territory. There is no specific crime of elder abuse. Most Criminal Code offences apply to all adults, regardless of the age of the victim (although there are some offences specific to minors).

People who commit elder abuse may be charged with the general offence that relates to the action taken, such as physical violence, threats, or theft. The Criminal Code provisions would also apply to family violence toward older family members.

The table below lists Criminal Code provisions that could apply to elder abuse and neglect, sorted by type of abuse. This list is not exhaustive.

Type of Abuse Criminal Code Offence Section
Physical Abuse Homicide 222
  Killing by influence on the mind 228
  Murder 229-232
  Manslaughter 234
  Attempt to commit murder 239
  Counselling or aiding suicide 241
  Administering noxious thing 245
  Assault 265
  Assault with a weapon or causing bodily harm 267
  Aggravated assault 268
  Unlawfully causing bodily harm 269
  Kidnapping (forcible confinement) 279
Psychological Abuse Interception of communication 184
  Criminal harassment 264
  Uttering threats 264.1
  Exploitation 279.04
  Intimidation 423
Sexual Abuse Sexual exploitation of person with disability 153.1
  Incest 155
  Voyeurism 162
  Sexual assault 271
  Sexual assault with a weapon, treats to a third party or causing bodily harm 272
  Aggravated sexual assault 273
Financial Abuse Theft 322
  Theft by or from person having special property or interest 328
  Theft by person required to account 330
  Theft by person holding power of attorney 331
  Misappropriation of money held under direction 332
  Taking motor vehicle or vessel or found therein without consent 335
  Criminal breach of trust 336
  Fraudulent concealment 341
  Theft, forgery, etc., of credit card 342
  Unauthorized use of computer 342.1
  Robbery 343
  Stopping mail with intent 345
  Extortion 346
  Being unlawfully in dwelling-house 349
  False pretense or false statement 361-362
  Forgery 366
  Fraud 380
  Using mails to defraud 381
  Fraudulent registration of title 386
  Fraudulent sale of real property 387
  Mischief 430
  Identity theft 402.2-403
Neglect Duty of persons to provide necessities 215
  Criminal negligence 219
  Causing death by criminal negligence 220
  Causing bodily harm by criminal negligence 221
  Manslaughter (if neglect leads to death) 234
General Nuisance 180

2.2 Prosecution

Even if the elder abuse amounts to a criminal offence, criminal prosecution may not be appropriate. Provincial, territorial, and federal departments have developed prosecution policies which apply to elder abuse, financial crimes, and intimate partner violence. See the province and territory chapters of the Guide for more information on relevant provincial and territory prosecution policies.

The older person may not want to pursue a criminal remedy. Criminal trials require the victim or witnesses to be involved and the older person may be unwilling or unable to participate. Older people are often harmed by people they care about. They may not want their family member to go to jail or get a criminal record.

Elder abuse can also be difficult to prosecute. If a victim is living with dementia, they may struggle under cross-examination. If they have serious health issues, or a short life expectancy, they may be unable to testify at trial. An older person living with disabilities may have communication and other support needs that cannot be addressed by Crown Counsel or victim services.

2.3 Peace Bonds

Regardless of whether or not an abuser is charged with an offense, a peace bond, also known as a section 810 recognizance, may be available to help address safety concerns. If the older person fears that a person will hurt them or damage their property, they may be able to get a peace bond to protect themselves and their partner or children.

The Criminal Code sets out the requirements for a peace bond in section 810. A peace bond may be issued if a person is in fear of personal injury or harm to their property. The bond can be issued against any person the older person fears, whether they are a family member or not. The judge can set the conditions of the peace bond, including the abuser:

  • Stay away from the older person;
  • Avoid taking alcohol or drugs; or
  • Be prohibited from possessing weapons.
  • If injury or damage feared
  • 810 (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person
    • (a) will cause personal injury to them or to their intimate partner or child or will damage their property; or
    • (b) will commit an offence under section 162.1.

A peace bond may be in force for up to 12 months.

To get a peace bond, the older person would likely need to contact the police and may need to go to court. However, an abuser may agree to a peace bond as an alternative to criminal charges, in which case no hearing or testimony would be necessary.

Although section 810 says that anyone may appear before a justice to request a peace bond, the common practice is that police will assess risk and make a recommendation to Crown Counsel as to whether a peace bond is appropriate in all the circumstances. If granted, the peace bond is valid in all jurisdictions.[6]

There are similar protective orders available under family law legislation in provinces and territories. See the province and territory chapters of this Guide for information on protection orders available in each province and territory.

2.4 Sentencing Principles

If a person has been convicted of a crime, the Criminal Code sets out factors the judge may consider during sentencing. The judge may take into account the age, disability, health, and impact of the crime on the victim to increase the length of the sentence. For example, if the person convicted of the crime has intentionally targeted an older person because they perceived older adults to be vulnerable or weak, the sentence could be increased. 

There are several provisions that apply to sentencing a person who abused an older person. Sections 718.04 and 718.201 set out that the sentencing objective of denunciation and deterrence should be most important if the victim of the crime is a vulnerable person.

  • Objectives — offence against vulnerable person
  • 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
  • Additional consideration — increased vulnerability
  • 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims

The Criminal Code sets out principles that a judge can consider when sentencing a person. One of the principles is that if factors that aggravate the severity of the offence are present, these can indicate that a lengthier sentence is appropriate. These factors include a number of circumstances that can be relevant in instances of elder abuse, such as the age, disability, or whether the victim is a member of the person’s family.

  • Other sentencing principles
  • 718.2 A court that imposes a sentence shall also take into consideration the following principles:
  • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
    • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
    • (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
    • (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
    • (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

Some provinces and territories also have criminal prosecution policies which consider elder abuse, age, and disability.

2.5 Resources

Advocacy Centre for Elderly, Criminal and Non-Criminal Abuse & Neglect Wheel, online: Seniors First BC <seniorsfirstbc.ca/wp-content/uploads/2013/07/Criminal-and-Non-Criminal-Abuse-Neglect-Wheel-e1373054893341-1-1024×748.png>.

Canadian Centre for Elder Law, Moving from Scrutiny to Strategy: An Analysis of Key Canadian Elder Abuse and Neglect Cases (2011), online: <www.bcli.org/publication/counterpoint-project-discussion-paper/?hilite=counterpoint>.

Krista James, “Elder Abuse and Neglect—Are they Crimes?” in BarTalk (2021), online: <www.cbabc.org/BarTalk/Articles/2021/December/Features/Elder-Abuse-and-Neglect>.

Lisa Romano, “Elder Abuse: Failing to Provide the Necessaries of Life to Older Adults is a Crime” in Advocacy Centre for the Elderly Fall 2009 Newsletter (2016), online (pdf): <www.advocacycentreelderly.org/appimages/file/failing-to-provide-necessaries.pdf>.

Public Legal Education Association of Saskatchewan, Legal Responses to Abuse of Older Adults, online: <www.plea.org/older-adults/abuse-of-older-adults/legal-res>.

West Coast LEAF and Canadian Centre for Elder Law, “Protection Orders and Peace Bonds” in Roads to Safety: Legal Information for Older Women in BC (2016), online (pdf): <www.westcoastleaf.org/wp-content/uploads/2016/05/West-Coast-Leaf-CREA-Roads-to-Safety-May-23-web.pdf>

3. Immigration and Family Class Sponsorship

Older people who immigrate to Canada often arrive via family class sponsorship. This process requires the sponsor to sign an undertaking promising to address the financial needs of the person they are sponsoring during the sponsorship period. The undertaking is an agreement between the sponsor and the Government of Canada.[7] The federal government expects sponsors to provide or fund food, clothing, “other every day needs,” and any health needs not covered by public health services.[8] During the sponsorship period, permanent residents generally do not have access to some government benefits, such as income assistance and subsidized housing.

The current length of sponsorship is as follows:

  • Spouse, common-law partner, or conjugal partner: 3 years
  • Dependent child under 22 years: 10 years or until reach age 25
  • Dependent child 22 years of age or older: 3 years
  • Parent or grandparent: 20 years
  • Other relative: 10 years[9]

If the sponsor stops supporting the permanent resident and the permanent resident receives social assistance, the sponsor will normally be found to be in default and would be responsible for repaying the social assistance the permanent resident receives.[10] This dynamic is often referred to as “sponsorship breakdown.”

Newcomers experiencing abuse who are not yet permanent residents can apply for expedited permanent resident status. This approach allows the newcomer to work in Canada and receive health care, and not be reliant on an abusive sponsor.[11]

Provinces and territories have individual laws and policies on access to social assistance for permanent residents fleeing abuse. See the province and territory chapters of this Guide for information on social assistance policies.

3.1 Resources

Charmaine Spencer, Immigration, Abuse and Capability Issues Backgrounder Paper (2008), online (pdf): <www.bcli.org/sites/default/files/Immigration_abuse_and_capacity_issues_background_paper.pdf>.

Community Legal Education Ontario, Family violence when a woman is sponsored by a spouse or partner (2017), online: <www.cleo.on.ca/en/publications/famvio#full>.

Government of Canada, Immigration options for victims of family violence (2021), online: <www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/fees-permits-victims.html>

Legal Aid BC, Sponsorship Breakdown (2017), online (pdf): <pubsdb.lss.bc.ca/pdfs/pubs/Sponsorship-Breakdown-eng.pdf>.

Mosaic BC, Sponsorship Debt (2011), online (pdf): <www.mosaicbc.org/wp-content/uploads/2017/01/Sponsorship-Debt.pdf>.

West Coast LEAF and Canadian Centre for Elder Law, “Your Rights if You are an Immigrant Woman” in Roads to Safety: Legal Information for Older Women in BC (2016), online (pdf): <www.westcoastleaf.org/wp-content/uploads/2016/05/West-Coast-Leaf-CREA-Roads-to-Safety-May-23-web.pdf>

4. Privacy Legislation

4.1 When does federal privacy law apply?

There are two federal privacy statutes:

  • Privacy Act[12] applies to the federal government, departments, and agencies.[13]
  • PIPEDA[14] is broader, applying to private organizations.[15]

PIPEDA applies to all federally regulated private organizations, such as banking and interprovincial trade. PIPEDA also applies to private organizations that conduct commercial activities, even if they are under provincial jurisdiction.[16]

If a province or territory enacts legislation that is deemed substantially similar to PIPEDA, then provincially regulated organizations conducting commercial activities would be regulated by that provincial or territorial privacy law. So far, only Alberta, BC, and Quebec have privacy legislation that is similar enough to PIPEDA such that PIPEDA would not apply.[17]

4.2 Disclosure of personal information under the Privacy Act

Under the Privacy Act, a federal government agency or body can only use personal information for the purpose for which it was collected, or with the consent of the person.[18] The government body must tell the person why their information is being collected.[19] Information can be disclosed without consent only in prescribed circumstances,[20] including:

  • As authorized under another act or regulation;[21]
  • For the purposes of a police investigation or legal proceeding;[22]
  • When public interest outweighs the potential invasion of privacy;[23] or
  • When disclosure would benefit the individual.[24]

4.3 Disclosure of personal information under PIPEDA

Under PIPEDA, an organization must obtain consent to personal information being collected, used, and disclosed.[25] The organization must tell the individual why they are collecting the information.[26] Personal information can only be disclosed without consent in prescribed circumstances,[27] including:

  • As “required by another law;”[28]
  • When it is “made to a person who needs the information because of an emergency that threatens the life, health, or security of an individual and, if the individual whom the information is about is alive, the organization informs that individual in writing without delay of the disclosure;”[29]
  • For the purposes of a police investigation;[30] and
  • When there is suspected financial abuse.[31]

Financial abuse

Federally regulated agencies can disclose information when there is suspected financial abuse, as PIPEDA applies to banks. Section 7(3)(d.3) of PIPEDA states that personal information can be disclosed without consent only when certain requirements are met. This occurs when disclosure is:

  • (d.3) made on the initiative of the organization to a government institution, a part of a government institution or the individual’s next of kin or authorized representative and
    • (i) the organization has reasonable grounds to believe that the individual has been, is or may be the victim of financial abuse,
    • (ii) the disclosure is made solely for purposes related to preventing or investigating the abuse, and
    • (iii) it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the ability to prevent or investigate the abuse;[32]

This provision allows a bank to disclose suspected financial abuse to whomever is appropriate to report abuse to in the jurisdiction. Depending on the laws in the jurisdiction, this report could be made to the police, the Public Guardian and Trustee, or other designated government agencies.

4.4 Resources

Canadian Foundation for Advancement of Investor Rights and Canadian Centre for Elder Law, Report on Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence and Diminished Capacity (2017), online (pdf): CCEL <www.bcli.org/wp-content/uploads/2017/11/171115-Vulnerable-Investor-Paper-FINAL.pdf>.


Endnotes

[1] RSC 1985, c C-85.

[2] SC 2001, c 27.

[3] SC 2000, c 5 [PIPEDA].

[4] RSC 1985, c P-21.

[5] Criminal Code, supra note 1.

[6] Ibid; West Coast LEAF and Canadian Centre for Elder Law, Roads to Safety: Legal Information for Older Women in BC (2016), at 62-63, online (pdf): <www.westcoastleaf.org/wp-content/uploads/2016/05/West-Coast-Leaf-CREA-Roads-to-Safety-May-23-web.pdf>.

[7] Immigration and Refugee Protection Act, supra note 2, 13.1

[8] Government of Canada, Sponsor your spouse, common-law partner, conjugal partner or dependent child—Complete Guide (2021), online: <www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5289-sponsor-your-spouse-common-law-partner-conjugal-partner-dependent-child-complete-guide.html>.

[9] Canada, “How long am I financially responsible for the family member or relative I sponsor?”, online: <www.cic.gc.ca/English/helpcentre/answer.asp?qnum=1355&top=14>.

[10] Canada, “Applications under family classes: Assessing the sponsor”, online: <www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-assessing-sponsor.html#default>.

[11] Canada, Immigration, Refugees and Citizenship Canada, “Canada introduces new measures for vulnerable individuals” (Winnipeg, 31 May 2019), online: <www.canada.ca/en/immigration-refugees-citizenship/news/2019/05/canada-introduces-new-measures-for-vulnerable-individuals.html>.

[12] Privacy Act, supra note 4.

[13] Ibid, supra note 4, s 2.

[14] PIPEDA, supra note 3.

[15] Ibid, supra note 3.

[16] PIPEDA, supra note 3, s 4.

[17] Ibid, s 4(3); Canada, Library of Parliament, Canada’s Federal Privacy Laws” by Miguel Bernal-Castillero, online: <lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/200744E>.

[18] Privacy Act, supra note 4, ss 7, 8.

[19] Ibid, s 5.

[20] Ibid, s 8.

[21] Ibid, s 8(2)(b).

[22] Ibid, s 8(2)(c),(d),(e).

[23] Ibid, s 8(2)(m)(i).

[24] Ibid, s 8(2)(m)(ii).

[25] PIPEDA, supra note 3, ss 3, 5, 6.1, Sch 1, s 4.2 & 4.3.

[26] Ibid, Sch 1, s 4.2 & 4.3.

[27] Ibid, s 7.

[28] Ibid, s 7(3)(i).

[29] Ibid, s 7(3)(e).

[30] Ibid, s 7(3)(c.1).

[31] Ibid, s 7(3)(d.3).

[32] Ibid.