This article was originally published by Law360 Canada (www.law360.ca) a division of LexisNexis Canada.
By Heather Campbell Pope and Rizwan Khan
Eleven years ago, elder law scholar Israel Doron described the movement for a United Nations convention on the rights of older persons as a journey to Ithaka, borrowing from C.P. Cavafy’s famous poem. The destination matters, but so too does the path toward it — one marked by setbacks, detours and incremental progress. At the time, an international treaty remained largely aspirational. Yet this year, the United Nations took a historic step forward when a working group began the drafting process. After years of debate about whether older persons required a dedicated human rights instrument, the conversation has shifted to what it might contain.
In Canada, the push to criminalize coercive control in elder abuse cases feels similar, with progress advancing in stages, accompanied by debates over necessity, scope, and language. Bill C-16, the Protecting Victims Act, which received royal assent on June 18, is one such step. By creating a new offence for coercive or controlling conduct toward an intimate partner, Parliament has recognized that abuse is not always a series of isolated incidents but can instead consist of a sustained pattern of domination that erodes a victim’s autonomy, sense of safety and wellbeing.
The legislation, however, leaves elder abuse victims behind. While Parliament accepted that coercive control warrants criminal sanction, it did not accept — at least not yet — that the same protection should extend to older victims who are harmed by their adult children, grandchildren and others in relationships of trust and dependence. Importantly, the law requires a parliamentary review of the offence to consider, among other things, whether it should apply outside intimate partnerships; however, this is not scheduled until 2031, five years after royal assent.
Other jurisdictions suggest that a more expansive approach is possible. England and Wales, for example, have criminalized coercive and controlling behaviour in both intimate partner and family contexts for more than a decade.
In June, the Senate Standing Committee on Legal and Constitutional Affairs had an opportunity to extend the offence to relatives, but the proposed amendment was defeated. During clause-by-clause consideration, a concern was raised that the term “relative” is not defined in s. 2 of the Criminal Code, whereas “intimate partner” appears there.
Although this objection is technically accurate, the term “relative” is used repeatedly throughout the Code without a statutory definition, including in the intimidation offence. Indeed, absent codified language, it may have been reasonable to rely on the courts to interpret the undefined term according to its ordinary meaning and legislative intent, and where necessary, to clarify the law in complex cases involving blended families and more distant family relationships.
This terminology debate will be familiar to many working in elder advocacy, where definitions and word choice are often contested and, at times, become proxies for deeper debates about when and how the criminal law should intervene in situations where older adults are being mistreated.
More broadly, it reflects a reluctance in Canadian law to identify older adults as a distinct class of victims, as seen for example in s. 718.2(a)(iii.1) of the Criminal Code. Entered into force in 2013, that provision makes age and personal circumstances a statutory aggravating factor in sentencing, reflecting Parliament’s intention that crimes against older adults be punished consistently and, where appropriate, with increased severity. But it does so in general terms, with no specific reference to advanced age.
To be sure, terminology was not the only concern about the relatives amendment. Officials also emphasized the need for police and other justice system participants to receive training on intimate partner coercive control before the offence comes into force, a reasonable consideration that is built into the legislation’s two-year implementation period. What remains less clear, however, is why that same period could not also have been used to prepare the system to respond to coercive control when it occurs between adult children and older parents, or in other family relationships.
In effect, Canada’s lawmakers declined to extend protection to elder abuse victims, choosing expedient enactment and adherence to their original goal, despite a known blind spot that left some older adults without equivalent protection. It is fair to note that this decision was influenced by the reasonable concern that an amendment risked delaying the swift passage of Bill C-16, a risk Parliament was unwilling to take given that coercive control is recognized as a precursor to intimate partner homicide.
In practice, law reform tends to proceed incrementally, through cautious steps that aim to bring us closer to justice for all. While older Canadians outside the scope of the offence will need to wait for protections, Bill C-16 nonetheless represents an important step forward, and its significance for women and children experiencing family violence cannot be overstated.
Heather Campbell Pope is a lawyer and the founder of Dementia Justice Canada. Rizwan Khan is a legal researcher and analyst at the National Institute on Ageing.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.