Bill C-360

1st Session, 39th Parliament,

55 Elizabeth II, 2006

house of commons of canada

BILL C-360

An Act to establish the Office of the Ombudsman for Older Adult Justice and the Canadian Older Adult Justice Agency and to amend the Criminal Code

WHEREAS research on the victimization of older adults is relatively recent, as this social issue was brought to the attention of the Canadian public only in the 1980’s;

WHEREAS existing statistics on the victimization of older adults represent only a portion of the actual number of incidents of older adults abuse, as a large number of incidents are concealed or unreported;

WHEREAS the Government of Canada wishes to increase awareness among Canadians that older adult abuse is a significant problem that impacts on the quality of life of many older adults across Canada;

AND WHEREAS the Government of Canada wishes to improve the quality of life and well-being of older adults in Canada by encouraging and supporting research and concrete action dealing with older adult abuse in Canada;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Older Adult Justice Act.

INTERPRETATION

2. The definitions in this section apply in this Act.

“abuse” means the knowing infliction of physical, psychological or financial harm on an older adult or the knowing deprivation of goods or services that are necessary to meet the essential needs of or to avoid physical or psychological harm to an older adult.

“Agency” means the Canadian Older Adult Justice Agency established under section 10.

“older adult” means an individual 65 years of age or older.

“older adult justice” means

(a) from a societal perspective, efforts to prevent, detect, treat, intervene in and, where appropriate, prosecute older adult abuse, neglect and exploitation, and to protect older adults while maximizing their autonomy; and

(b) from an individual perspective, the recognition of an older adult’s rights, including the right to be free of abuse, neglect and exploitation.

“Minister” means the Minister of Justice.

“neglect” means

(a) the failure of a caregiver or a guardian or curator to provide the goods or services that are necessary to maintain the health or safety of an older adult; or

(b) self-neglect.

“Ombudsman” means the person holding the office of the Ombudsman for Older Adult Justice appointed under section 5.

PART 1

OMBUDSMAN FOR OLDER ADULT JUSTICE

Office of Ombudsman

3. There is hereby established the Office of the Ombudsman for Older Adult Justice.

4. (1) The duties and functions of the Ombudsman are

(a) to act as a neutral and objective sounding board, mediator, investigator and reporter on matters relating to older adult abuse, neglect and exploitation;

(b) to examine potential issues relating to the protection of older adults from abuse, neglect and exploitation;

(c) to identify and suggest ways of improving gaps in the detection, investigation and reporting of older adult abuse;

(d) to annually collect and disseminate data relating to the abuse, exploitation and neglect of older adults;

(e) to provide advice to the Government of Canada on older adult justice issues;

(f) to suggest a long-term strategic plan for older adult justice programs and for activities relating to the prevention, detection, training, treatment, evaluation, intervention, research and improvement of the older adult justice system; and

(g) to assign an expert in sentencing case law or older adult case law to examine existing laws, nationally and internationally, and identify best practices.

(2) The Ombudsman may perform additional activities, including

(a) carrying out studies to determine the national incidence and prevalence of older adult abuse, neglect and exploitation in all settings;

(b) developing uniform, validated screening tools to assist individuals, families, practitioners, institutions and communities in detecting ongoing or potential older adult abuse, neglect and exploitation;

(c) carrying out various types of intervention research;

(d) identifying steps that can be taken and replicated to make homes, neighbourhoods, communities and facilities safer for older adults and enhance older adults’ sense of security in all kinds of environments;

(e) researching successful guardianship, curatorship and trust practices and systems to enhance the well-being of persons with diminished capacity; and

(f) developing and recommending guide-lines to assist institutional or peer review boards in the review of research.

(3) The Ombudsman shall maintain a program of communicating information to the victims concerning

(a) the functions of the Ombudsman;

(b) the circumstances under which the Ombudsman may commence an investigation or a study; and

(c) the independence of the Ombudsman.

5. (1) The Governor in Council shall, by commission under the Great Seal, appoint an Ombudsman after approval of the appointment by resolution of the Senate and House of Commons.

(2) A person is eligible to be appointed or to continue as Ombudsman only if that person is a Canadian citizen ordinarily resident in Canada or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.

(3) Subject to this section, the Ombudsman holds office during good behaviour for a term of five years, but may be removed by the Governor in Council at any time on address of the Senate and House of Commons.

(4) The Ombudsman, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding five years.

(5) In the event of the absence or incapacity of the Ombudsman or if the office of Ombudsman is vacant, the Governor in Council may appoint another qualified person to hold office instead of the Ombudsman for a term not exceeding six months, and that person shall, while holding that office, have all of the powers, duties and functions of the Ombudsman under this Act or any other Act of Parliament and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council.

(6) The Ombudsman shall receive such salary or other remuneration, benefits and reimbursement of expenses as may be fixed by the Governor in Council.

(7) The Office of the Ombudsman is part of the federal public administration.

(8) Such officers and employees as are necessary to enable the Ombudsman to perform the duties and functions and additional activities of the Ombudsman under this Act or any other Act of Parliament shall be appointed in accordance with the Public Service Employment Act.

(9) The Ombudsman may engage, on a temporary basis, the services of persons having technical or specialized knowledge of any matter relating to the work of the Ombudsman to advise and assist the Ombudsman in the performance of the duties and functions and additional activities of the Ombudsman under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of such persons.

(10) Subject to this Act, the Ombudsman and every person acting on behalf or under the direction of the Ombudsman shall not disclose any information that comes to their knowledge in the performance of their duties and functions and additional activities under this Act or any other Act of Parliament.

Complaints and Investigations

6. A person may make a complaint to the Ombudsman, specifying the grounds for the complaint, if the person has reason to believe that an older adult is experiencing

(a) abuse or neglect in a domestic setting or in institutional settings; or

(b) self-abuse or self-neglect.

7. (1) The Ombudsman may commence an investigation or a study

(a) at the written direction of the Minister; or

(b) on the initiative of the Ombudsman.

(2) The provisions of this Act are not deemed to abrogate or supersede the substantive provisions of the Criminal Code or of any other law or statute relating to criminal or police investigations.

(3) The Ombudsman has full discretion as to

(a) whether an investigation or a study should be conducted in relation to a complaint or request;

(b) how each investigation or study is to be carried out; and

(c) whether an investigation or a study should be terminated before completion.

(4) If an investigation is necessary to carry out the Ombudsman’s mandate in connection with a complaint received by the Ombudsman, the Ombudsman shall thoroughly investigate the complaint.

(5) The Ombudsman shall attempt, with the full and complete cooperation of all parties, to complete an investigation within 60 days of its commencement.

(6) The Ombudsman may refuse to deal with a complaint or may discontinue dealing with a complaint at any stage if the Ombudsman considers that it is in the public interest to do so.

(7) For the purposes of subsection (3), the Ombudsman shall consider the following factors:

(a) whether the complaint is frivolous or vexatious;

(b) whether the complainant lacks sufficient personal interest in the matter;

(c) the age of the complainant;

(d) the amount of time between the day on which the complainant became aware of the matters giving rise to the complaint and the day on which the complaint was received by the Ombudsman; and

(e) the need for judicious and efficient use of the Ombudsman’s resources.

(8) In the course of conducting an investigation or a study, the Ombudsman may require any person

(a) to furnish any information that, in the opinion of the Ombudsman, the person may be able to furnish in relation to the matter being investigated or studied; and

(b) subject to subsection (7), to produce, for examination by the Ombudsman, any document, paper or thing that, in the opinion of the Ombudsman, relates to the matter being investigated or studied and that may be in the possession or under the control of that person.

(9) The Ombudsman shall return any document, paper or thing produced under paragraph (8)(b) to the person who produced it within 10 days after a request for its return is made to the Ombudsman, but nothing in this subsection precludes the Ombudsman from again requiring its production in accordance with that paragraph.

(10) The Ombudsman may make copies of any document, paper or thing produced under paragraph (8)(b).

(11) No person shall obstruct the Ombudsman or any person acting on behalf or under the direction of the Ombudsman in the performance of the Ombudsman’s duties and functions under this Act.

(12) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.

(13) The Ombudsman may disclose, or may authorize any person acting on behalf or under the direction of the Ombudsman to disclose, information

(a) that, in the opinion of the Ombudsman, is necessary to

(i) carry out an investigation under this Act, or

(ii) establish the grounds for findings and recommendations contained in any report under this Act;

(b) that is required in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Federal Court or an appeal therefrom; and

(c) that is obtained in the course of dealing with a matter and that, in the opinion of the Ombudsman, is evidence of a criminal offence committed by any person against an older adult and should be reported to the competent authority.

(14) Except on the ground of lack of jurisdiction, nothing done by the Ombudsman, including the making of any report or recommendation shall be challenged, reviewed, quashed or called into question in any court.

(15) The Ombudsman shall, in such manner and at such time as the Ombudsman considers appropriate, inform the victim and the complainant or the Minister, as the case may be, of the results of the investigation or study, and provide only such information as may be disclosed under the Privacy Act or the Access to Information Act.

(16) The Ombudsman or any person acting on behalf or under the direction of the Ombudsman is not a competent or compellable witness, in respect of any matter coming to the know­ledge of the Ombudsman or that person as a result of performing any duties or functions under this Act during an investigation, in any proceeding other than a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Federal Court or an appeal therefrom.

(17) No criminal or civil proceedings lie against the Ombudsman, or against any person acting on behalf or under the direction of the Ombudsman, for anything done, reported or said in good faith in the exercise or performance or purported exercise or performance of any duty or function of the Ombudsman under this Act.

(18) For the purposes of any law relating to libel or slander,

(a) anything said, any information supplied, or any document or thing produced in good faith in the course of an investigation carried out by or on behalf of the Ombudsman under this Act is privileged; and

(b) any report made in good faith by the Ombudsman under this Act and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged.

Findings, Reports and Recommendations

8. (1) If a matter mediated by the Ombudsman is not settled to the satisfaction of the Ombudsman or the victim, the Ombudsman shall report the matter to the Minister, giving an opinion as to whether the complaint was justified and a recommendation on how the matter should be settled.

(2) The Ombudsman may make any recommendation that the Ombudsman considers appropriate, including a recommendation that the law, practice or policy on which the decision, recommendation, act or omission was based, be altered or reconsidered.

(3) The Minister shall attempt to resolve the matter referred under subsection (1) and shall prepare a report of any settlement made.

(4) The Minister shall forthwith cause every report made under subsection (3) to be laid before both Houses of Parliament.

9. (1) The Ombudsman shall submit to the Minister by April 1 of every year a report that

(a) describes the activities and accomplishments of, and challenges faced by

(i) the Ombudsman, and

(ii) the entities represented by the Ombudsman; and

(b) makes recommendations for legislation, model law, or other appropriate action.

(2) The Minister shall forthwith cause the report to be laid before both Houses of Parliament.

PART 2

CANADIAN OLDER ADULT JUSTICE AGENCY

Establishment of Agency

10. (1) There is hereby established a not-for-profit corporation to be called the Canadian Older Adult Justice Agency.

(2) The Agency is not an agent of Her Majesty.

(3) The Agency is not a departmental corporation or a Crown corporation within the meaning of the Financial Administration Act.

(4) The Agency shall offer its services to, and communicate with, the public in both official languages of Canada.

(5) The head office of the Agency shall be at the place in Canada that is designated in the by-laws of the Agency.

Objects and Powers

11. (1) The objects of the Agency are to

(a) coordinate and implement older adult justice policies and programs in cooperation with the governments of the provinces, with aboriginal governments and with government departments or agencies responsible for the protection of older adults;

(b) develop the capacity and procedures to collect, maintain and disseminate information relevant to consumers, families, service providers, clinicians, advocates, regulators, law enforcement agencies, policy makers, researchers and public guardians, curators and trustees, including judges and lawyers, with respect to the prevention, detection, assessment, identification and treatment of, as well as intervention in and prosecution of, older adult abuse, neglect and exploitation;

(c) provide, in a user-friendly manner, information on

(i) ways to promote autonomy in the face of aging or diminishing capacity and mobility,

(ii) ways to avoid becoming a victim of older adult abuse, neglect or exploitation, and

(iii) advance planning to avoid the need for a guardian, curator or trustee;

(d) provide links and references to other sources of information;

(e) compile, analyse and publish a summary of research conducted on older adult abuse, neglect and exploitation and information on how to obtain the original research materials;

(f) invite public comments;

(g) establish a toll-free number for information and referrals;

(h) coordinate activities with resource centres, agencies and database centres with respect to older adult justice;

(i) provide funding to public and private agencies and entities to develop or continue the efforts of database centres and information repositories specializing in older adult justice to be linked to the Agency;

(j) conduct a national multi-media campaign to raise awareness about older adult abuse, neglect and exploitation;

(k) evaluate with provincial counterparts, where applicable, programs designed to meet the needs of older adults and their informal caregivers living in rural and northern locations; and

(l) develop and disseminate national practices and procedures relating to protective services for older adults and provide training on those services.

(2) A long-term care database shall be established as part of the Agency and shall provide, in a consumer-friendly form, comprehensive and detailed information, including links to websites, about choices relating to long-term care providers, and in particular, information about

(a) obtaining the services or employing caregivers to provide long-term care at an individual’s home;

(b) options for residential long-term care, including

(i) the type of care provided by nursing facilities, and

(ii) the type of care provided by group homes and other residential long-term care facilities; and

(c) the care available through specific residential long-term care facilities, including data on the satisfaction level of residents of those facilities and their families.

(3) The Agency shall conduct a study on consumer concerns relating to residential long-term care facilities to

(a) develop definitions for classes of residential long-term care facilities; and

(b) collect information on the prices, level of services, oversight and enforcement provisions, and admission and discharge criteria of those facilities.

12. (1) In carrying out its objects, the Agency has the capacity and powers of a natural person, including the power to

(a) use any funds that may be provided to it, subject to any terms on which the funds are provided;

(b) enter into contracts or agreements in its own name;

(c) conduct studies with respect to the exercise of its powers; and

(d) do any other thing that is conducive to the attainment of its objects and the exercise of its powers.

(2) Despite subsection (1), the Agency

(a) shall not acquire or construct real property or immovables for valuable consideration, other than those required for its head office;

(b) shall expressly state in every contract and agreement that it is entering into the contract or agreement on its own behalf;

(c) shall not procure the incorporation of a corporation any shares of which, on incorporation, would be held by, on behalf of or in trust for the Agency; and

(d) shall not acquire shares of a corporation that, on acquisition, would be held by, on behalf of or in trust for the Agency.

Board of Directors

13. The affairs of the Agency shall be managed by a board of directors that may, for that purpose, exercise all the powers of the Agency.

14. (1) The board of directors shall consist of not more than 15 directors, including the chairperson and the executive director of the Agency, who does not have the right to vote.

(2) Sections 15, 17 and 19 do not apply to the executive director.

15. (1) The directors shall be appointed by the Minister to hold office during good behaviour for a term of not more than three years that will ensure, as far as possible, the expiry in any one year of the terms of office of not more than one half of the directors. A director shall be appointed for not more than two consecutive terms and may be removed by the Minister for cause.

(2) The directors shall be chosen in accordance with guidelines established by the Minister in consultation with the older adult community.

(3) The guidelines shall provide for a board of directors composed of men and women who are representative of the diversity and bilingual character of Canadian society and who have experience and expertise in older adult abuse, neglect and exploitation — notably their prevention, intervention, treatment, law enforcement or research — with due consideration to representation of the First Nations, of ethnic and racial minorities and diverse geographic areas, and who may include but are not limited to

(a) individuals who represent social service providers;

(b) health care providers, including geriatrics, emergency medicine, and nursing and mental health professionals;

(c) representatives of the legal profession, judicial systems and law enforcement agencies;

(d) gerontologists;

(e) psychologists;

(f) provincial and local government representatives;

(g) organizations providing services to older adults and disabled persons;

(h) volunteer groups;

(i) representatives of the older adult community;

(j) older adult rights advocates;

(k) family groups;

(l) experts in adult guardianship, curatorship or trust relationships, and those serving as or monitoring guardians, curators and trustees;

(m) individuals in forensics-related positions, including coroners and forensic pathologists;

(n) representatives of the financial sector; and

(o) individuals with the experience or capacity to enable the Agency to attain its objects.

(4) The guidelines referred to in subsection (3) are not statutory instruments for the purposes of the Statutory Instruments Act.

16. A director shall not be appointed as an officer of the Agency.

17. The directors are not entitled to be paid any remuneration, but are entitled to be paid such reasonable travel and other expenses incurred by them in connection with their duties or functions under this Act as may be fixed by the by-laws of the Agency.

18. (1) The board of directors may make by-laws with respect to the conduct and management of the affairs of the Agency and the carrying out of the duties and functions of the board under this Act, and in particular with respect to

(a) the appointment, the remuneration and expenses and the functions and duties of the officers, employees and agents of the Agency;

(b) the establishment and the operations of an executive committee and special committees;

(c) the different classes of members, the qualifications for membership, the fees and dues payable by members, and the rights and obligations of members; and

(d) any other thing relating to the conduct of the activities and affairs of the Agency.

(2) No by-law of the Agency is valid or shall be acted on until it is sanctioned at a general meeting of the members by at least two-thirds of those present and entitled to vote at the meeting.

(3) A copy of every by-law shall be kept at the head office of the Agency. Anyone is entitled, during the usual business hours of the Agency, to examine the by-laws and, on payment of a reasonable fee, to make copies of or take extracts from them.

(4) The by-laws made under subsection (1) are not statutory instruments for the purposes of the Statutory Instruments Act.

Chairperson

19. The Minister, after consulting with the directors, shall designate one of them as chairperson to hold office during good behaviour for a term of not more than three years. The chairperson shall be designated for not more than two consecutive terms and may be removed by the Minister for cause.

20. The chairperson shall determine the times and places of the meetings of the board of directors and shall preside at those meetings. The chairperson shall perform any other duties or functions that are assigned to the chairperson by the board of directors.

21. If the chairperson is absent or incapacitated or if the office of chairperson is vacant, the board of directors may designate a director to exercise the powers and perform the duties and functions of the chairperson during the absence, incapacity or vacancy, but no person may be so designated for a period exceeding 90 days without the approval of the Minister.

Executive Director

22. The board of directors shall appoint an executive director of the Agency, who shall be paid such salary as is fixed by the board of directors, from the budget of the Agency.

23. The executive director is the chief executive officer of the Agency and has, on behalf of the board of directors, responsibility for the direction and management of the affairs and day-to-day operations of the Agency.

24. If the executive director is absent or incapacitated or if the office of executive director is vacant, the chairperson may designate a person to exercise the powers and perform the duties and functions of the executive director during the absence, incapacity or vacancy, but no person may be so designated for a period exceeding 90 days without the approval of the board of directors.

25. The executive director may delegate to any person any power, duty or function conferred on the executive director under this Act.

Staff

26. The Agency may engage any employees and any technical and professional advisers that it considers necessary for the proper conduct of its activities.

27. The directors, officers and employees of the Agency are deemed not to be employed in the federal public administration and, for the purposes of the Public Service Superannuation Act, are deemed not to be employed in the public service.

Corporate Plan

28. (1) The Agency shall prepare a corporate plan for each fiscal year, and deliver a copy of that plan to the Minister at least 30 days before the start of that fiscal year.

(2) The corporate plan shall encompass all the business and activities of the Agency and shall include a statement of

(a) the Agency’s objectives;

(b) the strategies that the Agency intends to use to achieve those objectives, including its operational and financial strategies and its human resource strategies; and

(c) the Agency’s operating and capital budgets for the next fiscal year.

(3) After delivering the corporate plan to the Minister, the Agency shall make the plan public.

(4) The Minister shall cause a copy of the corporate plan to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the plan.

Annual Report

29. (1) The chairperson shall, within four months after the end of each fiscal year, deliver a report to the Minister on the operations of the Agency in that fiscal year.

(2) The report shall include

(a) the financial statements of the Agency and the report of the auditor respecting those statements;

(b) a summary of the Agency’s corporate plan; and

(c) information about the Agency’s performance with respect to the objectives established in the corporate plan.

(3) The annual financial statements for a fiscal year shall set out the total remuneration, including any reimbursement or monetary benefit, received by each officer from the Agency in that fiscal year, and the amount of any reimbursement or monetary benefit received by each director from the Agency in that fiscal year.

(4) The Minister shall cause a copy of the annual report to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.

(5) After the tabling of the report by the Minister in each House of Parliament, the Agency shall make the report public.

PART 3

GENERAL

Funding

30. The Minister shall establish funding arrangements with the board of directors of the Agency and with the Ombudsman, specifying the manner in which funding will be made available in accordance with a budget approved by the Minister.

Review

31. (1) On the expiration of five years after the coming into force of this Act, the provisions contained herein shall be referred to such committee of the House of Commons, of the Senate or of both Houses of Parliament as may be designated or established by Parliament to review the administration and operation of this Act.

(2) The committee designated or established by Parliament for the purpose of subsection (1) shall, as soon as practicable, undertake a comprehensive review of the provisions and operation of this Act and shall, within one year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon, including such recommendations pertaining to the continuation of those provisions and changes required therein as the committee may wish to make.

Regulations

32. (1) The Governor in Council may make regulations that are necessary for carrying out and giving effect to the provisions of this Act.

(2) A regulation made under subsection (1) may make it an offence to contravene the regulation.

AMENDMENTS AND COMING INTO FORCE

Criminal Code

33. (1) Subparagraph 718.2(a)(ii) of the Criminal Code is replaced by the following:

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, the offender’s child, mother or father, or any person for whom the offender is providing care,

(2) Paragraph 718.2(a) of the Act is amended by striking the word “or” at the end of subparagraph (iv), by adding the word “or” at the end of subparagraph (v), and by adding the following after subparagraph (v):

34. This Act comes into force on a day or days to be fixed by order of the Governor in Council.