Two long-term care home staff face criminal charges in the U.S. for their pandemic response and although the same could happen in Canada, lawyers say proposed Criminal Code changes could make a bigger difference in holding managers accountable.
Over 2,000 residents have died from COVID-19 during the pandemic in Ontario alone, and long-term care deaths have accounted for 80 per cent of Canada’s total.
There are numerous proposed class actions against long-term care operators and individual homes in Canada and Ontario has a commission to evaluate the response of the provincial government, long-term care homes and other actors.
Although other Criminal Code provisions aim to protect seniors, there’s currently no mention of elder or senior abuse in Canada’s Criminal Code — but that could change.
In the Sept. 2020 throne speech, Gov. Gen. Julie Payette said the federal government will work with Parliament on Criminal Code amendments “to explicitly penalize those who neglect seniors under their care, putting them in danger.” She also said the government will create new, national long-term care standards.
U.S. superintendent, former medical director charged
South of the border, the superintendent and former medical director of a Massachusetts long-term care home where 76 residents died were each charged in September with five counts of criminal neglect and five counts of serious bodily injury.
Melissa Miller, a partner at Howie, Sacks & Henry LLP who is currently representing around 80 families engaged in civil actions against Canadian long-term care homes, said she’s not aware of any past criminal cases here against a home’s management.
In rare past cases, there have been criminal charges against front-line workers like nurses or personal support workers, she said, pointing to Elizabeth Wettlaufer, a former nurse who pleaded guilty to murdering eight seniors, attempted murder of four others and two counts of aggravated assault.
The proposed Criminal Code amendments and new national standards could signal a desire to make a change so that long-term care home owners and operators could be held criminally responsible, Miller said.
“What we’re seeing in COVID is, in some instances, utter and complete mismanagement of the entire home that’s leaving a devastating impact on the most vulnerable members of our community,” she said. “We don’t really have a mechanism in place to have that kind of accountability, and it sounds like our federal government is interested in having that mechanism in place.”
Those mechanisms have to be balanced so homes aren’t “over-policed,” she added.
Current accountability measures not working: lawyer
Miller also said the federal government may be looking to amend the Criminal Code because the current regulatory framework to hold homes accountable isn’t effective.
“Right now the Ministry of Long-Term Care can go in, do an investigation and implement sanctions, up to and including shutting down the home. But we don’t even see an exercise of all of the available remedies in our regulatory scheme being used,” she said.
Miller said if people believe something criminal happened to a loved one, they should reach out to the police, file a report with the Ministry of Long-Term Care and contact a lawyer to see if a civil lawsuit is appropriate.
Ontario has introduced proposed legislation that shields “good faith” actors who didn’t display “gross negligence” from being sued for exposing people to the virus causing COVID-19. That “devastating” legislation would provide civil, not criminal, immunity, Miller said, and it would create an increased threshold for families to try to prove a home’s liability while “lowering the standard by which homes are obligated to operate.”
In April, CBC reported that police in Montreal had launched a criminal investigation into the owner of a private long-term care home where 31 residents died in less than a month.
Families of Orchard Villa residents in Pickering, Ont. wrote to Durham police in May asking for a criminal investigation of the home, which saw 70 resident deaths — the highest number of any home in the province.
‘Political window dressing’
Matthew Friedberg, a partner at criminal defence firm Caramanna Friedberg LLP in Toronto, said it’s possible police could hold off their investigations until Ontario’s long-term care commission issues its final report, due by the end of April 2021.
The province could also wait to receive the report and then create a new law to hold long-term care home managers accountable, he said, although that would only be applied going forward and wouldn’t retroactively cover events during the pandemic.
There’s no reason why Canadian long-term care home administrators or managers couldn’t be charged now if police are investigating and have enough evidence to lay charges, Friedberg said. There are already charges within Canada’s Criminal Code that could apply to situations in long-term care homes, like criminal neglect or failing to provide the necessities of life, he said. There are also penalties under other pieces of legislation, like the federal Quarantine Act or Ontario Health Protection and Promotion Act.
“We already have the tools at our disposal to prosecute people if we want to. I mean, I guess they could come up with other laws to penalize people,” Friedberg said. “But to me, I think that’s just sort of somewhat … political window dressing.”
Miller said it’s not necessarily that more police involvement is needed — simply that Canada’s currently regulatory penalties aren’t stopping abuse and neglect from happening at some homes.
“And so, if having amendments to our Criminal Code will do that, and catch those very egregious neglect and abuse cases, then I think those changes ought to be welcome.”