Ottawa exploring criminal reform as Liberal MP tables bill on long-term care neglect

Liberal MP Hedy Fry speaks during a news conference in Ottawa, on June 15, 2017. Fry introduced a private bill in late June, Bill C-295, that would amend Section 215 of the Criminal Code to specifically criminalize owners and managers of long-term care homes for failing to provide the “necessaries of life” to vulnerable adults. THE CANADIAN PRESS/Adrian Wyld

OTTAWA — Cathy Legere saw firsthand the conditions that elder residents of long-term care were enduring, and the intense pressure that personal care staff were under, in the early days of the COVID-19 pandemic.

The retired infection control nurse volunteered her services at the Orchard Villa home where her father-in-law, Nick, was a resident, in April 2020 — and said she witnessed a deeply “broken” system before contracting the virus herself.

As she isolated herself at home, she was horrified to learn that her father-in-law, Nick, was left in a room for almost 24 hours with the dead body of a resident he’d watched slowly succumb to the disease over two days.

The appalling stories that emerged out of long-term care settings during the early pandemic, especially as reported by Canadian military members who were brought in to help, prompted the Liberal government to promise in its 2020 throne speech that it would work on Criminal Code amendments to “explicitly penalize those who neglect seniors under their care.”

Nearly two years later, the government hasn’t made any major moves.

That makes Legere, who is party to a major class-action lawsuit against Ontario care homes, feel all the more cynical about seeing any accountability: “Is this something that is going to do anything, or is this just the Liberals going, ‘Oh, yeah, we’ll do this,’ and everybody will just coast again?”

Liberal Hedy Fry, the longest-serving female MP in the House of Commons, is trying to take matters into her own hands and propose changes that could form a road map for the government’s approach.

She introduced a private bill in late June, Bill C-295, that would amend Section 215 of the Criminal Code to specifically criminalize owners and managers of long-term care homes for failing to provide the “necessaries of life” to vulnerable adults.

It would also give judges the ability to prohibit anyone who is convicted or on probation for that offence from volunteering or working in a setting “that involves being in charge of or in a position of trust or authority towards an adult who is vulnerable by reason of age, illness, mental disorder, disability or frailty.”

Fry said her intention is to prevent the failures of long-term care during the pandemic from ever happening again.

“COVID exposed a lot of vulnerabilities that we, smugly, as governments and as caregivers and as a physician myself, always thought were being cared for. It exposed that there were holes in the safety net,” she said in an interview. “The system was not up to the task.”

Fry said Justice Minister David Lametti “does not have any problem” with the bill, and answered in the affirmative when asked whether she believes the government is on board with the approach.

A spokesman for the Justice Department would only say that officials are “exploring potential Criminal Code reform options to better address senior abuse and neglect.”

Experts say the bill is a step in the right direction but risks being a public-relations exercise and falling short of meaningful change if the government ends up supporting it in isolation.

The Criminal Code amendments themselves look like “a very viable approach,” said Graham Webb, executive director of the Advocacy Centre for the Elderly and previously its longtime staff lawyer.

“I’m really not aware of a single charge ever having been laid for the neglect of a long-term care resident,” said Webb. “I think it’s important that the criminal justice system is able to respond when we see such flagrant cases of institutional abuse and neglect of older adults.”

He added that the definitions around “managers” and “owners” of the homes could be fine-tuned to make sure that individuals at the top who control the money and the resources available to staff are held responsible for neglect, rather than individual front-line workers.

But Krista James, national director of the Canadian Centre for Elder Law, said prosecutions under Section 215 are already few and far between, and she is skeptical of the impact of amending it.

“Criminal law reform requires criminal law infrastructural reform in order to be impactful,” she said, explaining that police and prosecutors would need to be trained and the offences and standards of evidence would have to be widely promoted for it to work. “If only it was just about changing a law.”

Asked whether she thought the bill could be a deterrent, James quipped: “You would hope that people providing long-term care would want to provide good care to the vulnerable older adults living in their facilities, whether or not they went to jail if they didn’t.”

Natalie Mehra, executive director of the Ontario Health Coalition, said there has been “no consequence whatsoever” for abuse and neglect that was exposed during the pandemic, or for the needless deaths of residents due to poor infection control and non-COVID-19 reasons such as dehydration and starvation.

Though there is much to be done by the provincial governments that oversee long-term care, Ottawa has a role to play in holding provinces accountable to better standards of care, Mehra said, by attaching more strings to federal health transfers.

That and finally following through on the promise to hold bad actors criminally responsible.

“I think we need to search our conscience if the lives of the elderly are not worth a formal government bill,” she said, “and real change with teeth.”

This report by The Canadian Press was first published July 16, 2022.

Marie-Danielle Smith, The Canadian Press