Access to Justice and Canadian Elders
Who Are Elders in Canada?
Typically, the term ‘elderly’ is described on the basis of chronological age or remaining life expectancy – a person aged 65 years and above. This chronological age theory for defining the elderly was put forward by Norman Ryder in 1975. In Canada, the age of 65 years and above is generally linked with retirement policies and the eligibility age for pensions or government support. However, recent scholars argue that the chronological definition of elderly persons is vague, out-dated and defective in our contemporary socio-demographic contexts of higher life expectancy and increased longevity. (See: Grant Schellenberg and Martin Turcotte, “A Portrait of Seniors in Canada, 2006”, Statistics Canada 89-519-X; Warren Sanderson and Sergei Scherbov, “Rethinking Age and Ageing”, (2008) 63:4 Population Bulletin 1 at 3-7.)
The above inconsistency in defining elders resulted in the random selection of a base year (e.g., 65) for elder studies. Consequently elder studies produced uneven data that then failed to provide a true picture of elder issues. For example, in their research, governmental studies prefer using the age of 65 years and above, while health and gerontology studies tend include the age group of 55 to 64 years. An ongoing Canadian study on elders expanded their research to include persons aged 45 to 85 years.
Nonetheless, recent Canadian statistics studies tend to support a broader approach and a lower baseline year for elder studies. They reason that many sub-communities, like Aboriginals and people with disabilities, are likely to, on average, have shorter life expectancies and poorer health as compared to the general population. (See: Shannon Brennan, “Victimization of Older Canadians, 2009”, Statistics Canada 85-002-X, Juristat (2012); Statistics Canada (2010) Aboriginal.)
This ACLRC resource material adopts the wider approach for defining elders as it aligns closely with the ‘access to justice’ perspective.
What Does Access to Justice Mean To Elders?
The concept of access to justice is believed to have its origin in the ancient maxim of ubi jus, ibi remedium ‑ where there is a right, there must be a remedy. The maxim proposes that a right requires a remedy and that a remedy is meaningless if it is not accessible. In the context of Canadian Charter of Rights and Freedoms (“Charter”) breaches, the Supreme Court of Canada in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, highlighted the importance of remedies being “responsive” and “effective”.
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In short, obtaining access to justice requires that there is no legal right without a remedy; and that the remedy must be accessible in order to be meaningful. (For details on the access to justice concept, see ACLRC here and here; Trevor CW Farrow, “What is Access to Justice?” (2014) 51:3 Osgoode HLJ 957; and Faisal Bhabha, “Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroot Dimensions”, (2007) 33 Queen’s LJ 139.)
From a narrow perspective, access to justice for elders would simply mean their ability to get their rights represented by a lawyer before a court. A wider perspective would include understanding of social and systematic barriers that elders face in order to protect their interests. In this sense, access to justice for elders means ensuring equal and fair opportunities for them to enforce their rights. This basically represents a complex area where legal theories marry social sciences.
Current demographic data shows that the percentage of Canadians above 65 is increasing rapidly. This increase is often expressed by the term “greying of Canada”. Frustratingly, to date we do not have sufficient information and research to provide a clear picture of the hurdles that Canadian elders face in accessing justice. As mentioned above, previous studies on elder issues failed to produce aggregate results to evaluate the effectiveness of the interventions intended to address elder issues. Therefore, finding a solution remains elusive until we properly understand that elders face access to justice issues in the present day legal, cultural, and socio-economic contexts.
The access to justice approach for this resource material aims to:
- understand the true nature of everyday battles that elders fight;
- investigate the complexities surrounding elders in accessing justice;
- identify the knowledge gaps that limit our ability to understand the true nature of access issues faced by elders;
- examine barriers that elders struggle with;
- recognize the gaps and drawbacks in the legal, policy and community framework; and
- suggestions/ initiatives that could help in eliminating the barriers and filling the cracks in elder justice frameworks.
Understanding Elders' Access to Justice Issues: The Gap Analysis
This section focuses on how well we understand access to justice issues faced by elders in modern Canadian societies. Literature suggests that a majority of the research on elder issues in Canada is either ‘recycling’ of what is already known or ‘cycling work’ which contains uncorroborated information. The main reasons for these circumstances are the complexity of elder issues; the settings in which the research takes place; defective and irregular research methodologies; narrowly scoped studies; the lack of available theoretical literature to indicate the factors that lead to senior mistreatment or neglect to support effective policy formation; lack of funding; and many other factors. (See: Lynn McDonald, "Elder Abuse and Neglect in Canada: The Glass is Still Half Full”, (2011) 30:3 Canadian Journal on Aging/ La revue canadienne du vieillissement 437; also see: Simon Biggs and Ieja Haapala, “Theoretical Developments and Elder Mistreatment: Spreading Awareness and Conceptual Complexity in Examining the management of Socio-Emotional Boundaries”, (2010) 35:3 Ageing International 171.)
In Canada, aging is occurring on an ever-changing socio-political, economic and ethno-cultural landscape. Earlier legal and community interventions aimed at addressing elder issues missed their mark primarily because the underlying policies overlooked the changing make-up of Canadian multiculturalism. This created a huge knowledge gap about the complexities of every day troubles that elder subpopulation face in accessing justice for the reason of their gender, race, religion, ethnicity, nationality or social status. Moreover, conflicting and incoherent results from earlier studies on seniors widened this knowledge gap. For example - earlier studies suggested that the majority of seniors in Canada were financially secure. However, recent statistics show that now the majority of seniors struggle financially. Therefore interventions based on incorrect ideas about the finances of seniors failed to be effective under these changed circumstances. (See: Employment and Social Development Canada Report, “Addressing the Challenges and Opportunities of Aging in Canada”, 2007.)
To be effective and responsive, interventions must be based on research that takes into account the changing demographic and ethno-cultural diversity of Canadian elders. This section aims to bring out those areas which earlier policymakers overlooked while addressing elder issues. In this regard, we identified the following gaps in elder access to justice knowledge.
Senior women outnumber senior men in Canada. The gap between senior women and men is widening due to higher male mortality rate and higher longevity of women in general (See: Statistics Canada: “Annual Demographic Estimates: Canada Provinces and Territories” (2015) Catalogue no- 91-215-X.)
Our diverse multicultural mosaic is also seen in our elderly female population. The Canadian elderly female subpopulation includes – Aboriginal elder women, lesbian and transgender elders, immigrant elderly females, older women from the visible minority population and religious and ethnic minority elderly females. It would not be unreasonable to say that elderly females may face different challenges in accessing justice depending upon their particular social, cultural, economic, spiritual and physical characteristics. Ironically, despite having more senior females, there is very little research and study to bring out a clear image of access to justice issues faced by elderly Canadian women.
A recent report by Statistics Canada (Women in Canada: A Gender Based Statistical Report, Seventh Edition (89-503-X)) discusses different characteristic features and experiences that women confront in our society. The Chapter of the report entitled “Senior Women” provides vital information on social and economic conditions of elderly females. However, the report fails to provide real and practical barriers that elderly women face in accessing justice.
Fortunately, the Ontario Women Justice Network (OWJN) report - “Expanding Access to Justice for Older Women” proves to be a wonderful resource for bringing out access to justice issues of elderly females in Ontario. According to this report, the majority of elderly women raised the following obstacles in accessing the legal system:
- The legal system is very expensive and time consuming;
- Legal information is quite inaccessible and not sufficiently available to the public;
- Most lawyers are unable to communicate in simple language, do not explain the process about their legal bills, are insensitive, non-compassionate and lack patience;
- In order to access legal assistance, you either have to be very poor or have enough money to afford a lawyer;
- Legal Aid is very restrictive in nature – for both financial and procedural reasons;
- Those who qualify for legal aid point out that legal aid professionals do not explain the process and there is too much paperwork required for legal aid services;
- Professionals are not properly trained in the treatment of elderly women, and thus lack supportiveness, listening skills, plain language communication skills, and sensitivity—and thereby perpetuate social stigma and stereotyping;
- The legal system is not well connected with other social services; likewise, social service professionals lack legal information and knowledge in order to connect elderly women with the legal system;
- The majority of elderly females experience the legal system as patriarchal and ageist; and
- Most people do not take older women’s abuse claims seriously and tend to stereotype them as senile, crazy and menopausal.
The report is a great starting point for understanding justice barriers for senior women. Nevertheless, the scope of above study is very limited. It fails to consider the access to justice issues faced by many elderly females (e.g., minorities). Literature suggests that access to justice barriers for a poor immigrant elderly woman of visible minority will be different from those that an educated and employed senior female would face, due to the combined effect of gender, race, nationality, class, and colour. (See: Susannah Dainow, “Expanding Access to Justice for Older Women” (September 2005) Research Report prepared for Ontario Women Justice Network/METRAC.)
Canada’s LGBT seniors have slowly started revealing their identities publicly by breaking social and cultural stereotype barriers. Canadian LGBT seniors come from all cultures, ethnicities, and socio-economic backgrounds. They emerge as a unique demographic with identifiable requirements. Compared to their heterosexual counterparts, LGBTQ+ seniors do not just face typical challenges of old age but also confront social discrimination, stigma, abuse and violence due to their sexual orientation or gender-identity.
LGBTQ+ elders are severely understudied in Canada. Therefore, we do not have sufficient data or understanding about their particular barriers for enforcing their rights. Nevertheless, there are a few limited studies that provide some insight in understanding the unique barriers that these elders face in accessing justice. The studies tried to examine the social, psychological and legal environments of gay and transgender elders. (See: Fidelindo A Lim and Ilya Bernstein, “Promoting Awareness of LGBT Issues in Aging in a Baccalaureate Nursing Program” (2012) 33:3 Nursing Education Perspectives 170.)
Literature suggests that gay elderly males live in a ‘homophobic’ environment that exposes them to homophobic abuse, marginalization, hostility, discrimination, and fear of approaching authorities for legal remedies. The majority of gay elders exhibit characteristics of internalized homophobia, negative self-definition, the fear of authorities and poor economic security. Under these social and economic conditions, many LGBTQ+ elders prefer social isolation and extreme self-neglect over becoming dependent on someone. They often choose not to approach the legal system or the authorities in times of need. (See: Loree and Daniels, “Lesbian, Gay Male, Bisexual and Transgendered Elders: Elder Abuse and Neglect Issues”, ((1998) 9:2 Journal of Elder Abuse & Neglect 35; National Senior Council, “Report on the Social Isolation of Seniors” (October 2014).)
Canada legalized same-sex marriage in 2005 under the Civil Marriage Act, SC 2005 c 33. However, even after a decade, legislative efforts to address the LGBTQ+ aging population in Canada remain absent. To date there is no official definitive number of LGBT people in Canada, let alone LGBTQ+ seniors. According to one Forum Research Poll (2012) by National Post, arguably, five percent of Canadians identify themselves as members of the LGBTQ+ community. The research poll indicates that younger Canadians are more open in speaking about their sexual orientation than older Canadians. It also suggests that the Prairie Provinces are the least supportive of the LGBT community. Alberta is on the top for being least supportive. The Forum Polls also indicate that a large part of the LGBT population is more likely to be part of the population living on low income.
Aboriginal seniors constitute another complex dimension of senior demographics in Canada. In 2011, Aboriginals constituted 4.3% of the total Canadian population, and Aboriginals aged 65 years and above were around 6% of the total aboriginal population in Canada. (See: 2011 National Household Survey Statistics.)
Seniors make up a smaller proportion of Aboriginal population. At the same time, there is very little information about their unique requirements. There is no specific data to echo the obstacles that Aboriginal elders face while accessing justice. The lower Aboriginal adult literacy rate and the lower literacy in older/senior Aboriginals suggest the enormity of their difficulties in enforcing their rights. In addition, factors like language, low-income, cultural values and ideologies also affect Aboriginal senior’s choice to approach the legal justice system.
Regarding the Aboriginal perspective on the Canadian legal system, former Chief Justice Frank Iacobucci in his report, “First Nations Representation on Ontario Juries” (2013), noted the complexities of access to justice issues in Aboriginal communities. He identified three broad problems:
- There exist a continuous conflict between the cultural values, legal traditions and ideologies of Aboriginal people and those that lay foundation of the Canadian justice system;
- There is a deep rooted inter-generational mistrust of the Canadian justice system. Majority of Aboriginal peoples believe that the Canadian justice system work against them, rather than for them (particularly criminal justice and child welfare) and that the justice system does not reflect Aboriginals’ fundamental values; and
- There exists the strong desire for First Nations communities to gain control over justice matters in their community.
(See: Ministry of the Attorney General - Report of the Independent Review Conducted by The Honourable Frank Iacobucci, “First Nations Representation on Ontario Juries” (February 2013), at paras 24-36.)
Aboriginal negative perception and intergenerational mistrust of the Canadian justice system are the primary factors for their reluctance to approach it. They often wish to settle their issues at their community level. This is a major justice barrier issue for Aboriginal elders.
Immigrant and Visible Minority Seniors
The complex nature of access to justice issues for immigrant elders raises different requirements to address. There is a very little research on access to justice issues faced by elders who came to Canada as immigrants and refugees. Seniors who belong to these sub-groups are most likely to fall between the cracks due to various reasons. These factors include, but are not limited to:
- language barriers;
- lack of employment security;
- low income;
- shelter, housing and retirement homes issues;
- mobility dependency – transportation;
- social isolation;
- physical and mental health issues;
- lack of information and access to community support services; and
- vulnerability to abuse and victimization
(See: A discussion paper for the Calgary Immigrant Senior “Speak Out” Forum - Including Immigrant and Refugee Seniors in Public Policy 2009.)
Statistics Canada’s report shows that in 2011 around 20.6 % of the total Canadian population was foreign-born – immigrants or refugees. About 19.1% of the total Canadian population identified themselves as a member of a visible minority group. Thirty point nine percent of these visible minorities were born in Canada, while 65.1% were born outside the country and came to live in Canada as immigrants. (See: National Housing Survey (NHS) “Immigration and Ethno Cultural Diversity in Canada” (2011) (99-010-X).)
Unfortunately, there are no specific studies on justice barriers that immigrant and visible minority elders face. Available research is mostly non-interdisciplinary and often narrow in scope. Therefore, the information is usually incomplete and fails to bring out real issues that this elderly subpopulation faces. For example, a Public Health Agency of Canada study on immigrant seniors pointed out that over 50% of recent immigrants did not have knowledge of either English or French. Consequently, most of them stayed out of the labour force. Studies suggest few common challenges faced by immigrant seniors. These include language barriers, low incomes and high vulnerability to financial and verbal abuse, marginalization and social isolation. The above conditions pose huge obstacles for immigrant elders to access the legal system to protect or enforce their rights. (See: Peggy Edwards, “Elder Abuse in Canada: A Gender-based Analysis” Public Health Agency of Canada (PHAC) (2011).)
The death of Zahara Abdille and her two kids is a troubling example of the real hurdles that an immigrant female faces in accessing justice. Although she was not an elderly, she was an immigrant female with two kids. Zahara was a public health nurse who was murdered following a suspected domestic violence incident. When she approached Legal Aid, she was ineligible as her income was slightly above their financial limits. Her failure to qualify for legal aid for a domestic violence issue rendered her with the only option of suffering in silence. Zahara and her children’s lives could have been saved if our legal aid system was not so restrictive and inaccessible to those who are not severely poor, but who are surviving on the edge of poverty.
Frustratingly, to date, we do not have sufficient information to understand the hurdles that the above groups of Canada’s elderly sub-population face in accessing justice. Nonetheless, on the basis of literature review, the following section tries to bring out some common barriers that Canadian seniors face while accessing justice.
Common Access to Justice Barriers for Elders
We first need to focus on the most common hurdles that elders face in order to understand why things do not work out well when they try to access justice. The sub-sections below bring out few common obstacles that seniors face in accessing justice.
Barriers In Accessing the Criminal Justice System
The Canadian criminal justice system protects our elders from a number of crimes. However, the Criminal Code provisions do not specifically protect seniors. The Code is drafted as providing general protection to all, including elders. Moreover, a majority of the Code tends to address crimes after they have occurred. This after-the-fact nature of the criminal law basically provides a remedy once the harm has already been done, and gives little protection except for the general deterrence of criminal behaviour. (See: Law Commission of Ontario, “A Framework for the Law as it affects Older Adults: Advancing Substantive Equality for Older Persons Through Law, Policy and Practice” (Toronto: April 2012).)
The Law Commission of Canada evaluated the adequacy and efficacy of criminal law for the protection of elders in its report “Why it is so difficult to combat elder abuse and, in particular, financial exploitation of the elderly (1999)”. The report concluded that the effectiveness of the criminal law for elders is of huge concern, although the Criminal Code provides adequate protection for elders. The Commission noted various socio-economic factors that affect the systematic enforcement of the Criminal Code. Factors that prove to be common barriers include lack of proper information about the legal system among most elders, the criminal justice system is costly and time consuming for most elders and the elders generally mistrust lawyers, who often fail to communicate the process in plain language (especially to LGBT, Aboriginal and Immigrant elders), etc.. The report accounts that these socio-economic factors play a major role in curbing the applicability of criminal law. (Also see: Lesbian, Gay Male, Bisexual and Transgendered Elders: Elder Abuse and Neglect Issues, (1998) 9:2 Journal of Elder Abuse & Neglect 35.)
Moreover, elders who are educated and economically resourceful often do not find the criminal justice system very appealing because of their personal situations, such as when the perpetrators of crime are their family members or children. Elders feel a sense of responsibility towards their children and do not want to see them sent to prison. Thus, under-reporting is a major barrier in accessing justice for such elders. Further, the recently amended sentencing provisions (ss. 718.2 of the Criminal Code) suggest harsher punishment for offenders of crimes with elder victims. This may actually increase the problem of under-reporting crimes against elders and their unwillingness to approach the system. (See: JE Korbin et al, “Abused Elders Who Seek Legal Recourse Against Their Adult Offspring”, (1991) 3:3 Journal of Elder Abuse and Neglect 1 at 11-12).)
These concerns raise questions on the application of the criminal justice system for the protection of elders. Does the Criminal Code provide for alternate and less costly remedial measures for those elders who do not wish to prosecute their children or family members? Will harsher sentences fix the access to justice problems for elders? It is most likely that harsher punishments may make seniors even less likely to report incidents. These issues would likely not encourage elders to access the criminal justice system rather it would add more hurdles for them.
Barriers in Accessing Civil Justice
“There is a serious access to justice problem in Canada. The civil and family justice is too complex, too slow and too expensive.”
(Access to Civil & Family Justice: A Roadmap for Change, Action Committee on Access to Justice in Civil and Family Matters, headed by Justice Thomas A Cromwell - Final Report (October 2013) (Executive Summary at iii) [Roadmap to Change]).
The Roadmap to Change report recognizes that legal problems do not occur in isolation. They have a momentum. Legal problems trigger other legal problems and in turn are often triggered by non-legal problems. The non-legal problems represent social and systematic difficulties. These interdependent clusters of problems can only be resolved by addressing the interlinked problems simultaneously. These problem clusters come with social and economic costs. The report notes that poor and vulnerable sections of the Canadian population experience multiple interrelated problems. (Also see: Ab Currie, “The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians” (Ottawa: Department of Justice Canada, 2007).)
The foregoing applies squarely to seniors’ access to justice problems. Many elders in Canada constitute a vulnerable part of the population. They often fail to meet their legal needs within the current civil justice framework. The Roadmap to Change report notes that legal cost is a major roadblock in accessing civil justice. Furthermore, availability of legal aid funding is very restrictive - both in terms of people and legal issues. For example Eligibility Guidelines for Legal Aid Alberta extends its service coverage for only limited types of legal problems. Also, their financial eligibility covers individuals with annual income less than $19,653 or an annual income of $37,434 for a family of four. The limited availability of legal aid in terms of legal issues and annual income proves to be a major roadblock in accessing justice for elders.
Lack of financial resources has always been one of the biggest hurdles in accessing justice for poor people, let alone the elders surviving on limited resources. The 2012 report by Statistics Canada claims that over 600,000 seniors in Canada live in poverty — i.e., more than one in four single elderly Canadians lives in poverty or is at risk of poverty. Contrary to the previous assumptions, recent statistics show that the number of older Canadians surviving on limited incomes is gradually increasing.
For seniors surviving on fringe monetary incomes, even a small financial loss or an extra legal expense can have significant impact on their lives. Sadly, future projections indicate that the poverty rate for seniors is expected to rise sharply in the next two decades. This is distressing. Moreover, the restrictive nature of legal aid and lack of community support make it extremely difficult for elders to access justice.
The ability of an older person to communicate effectively about their legal needs is another common hurdle to justice. Improper/ineffective communication often multiplies elder’s troubles. For many elders the ability to communicate effectively may be diminished due to the cognitive and physical limitations that normally come up with age. Due to these limitations many elders fail to inform their lawyers or legal aid persons about their legal needs. The other aspect of ineffective communication involves the inability of lawyers and other professionals to communicate with seniors in a plain language. Many seniors often complain that they do not normally understand legal jargon and complex legal processes. (See: Susannah Dainow, “Expanding Access to Justice for Older Women” (2005).)
In addition to the above, there are other social and educational factors that affect the ability of our elders to effectively communicate their concerns. Factors like literacy, language concerns, and religious or cultural concerns multiply communication difficulties. Language is a key to communication and elders who are unable to communicate in either English or French fail to seek help from those who are willing to assist them. Communication barriers are more prevalent with immigrant seniors and Aboriginal elders or religious and ethnic minority elders. They may need a translator to effectively communicate their legal needs. The translator comes with a cost that many low income elders may not afford. (See: Charmaine Spencer & Ann Soden, “A Softly Greying Nation”, (2007) 2 J. Int'l Aging L & Pol'y 1).)
Social and Cultural Barriers
As mentioned earlier, Canada has one of the most diverse multicultural mosaics in the world. Thesocial, cultural, religious and ethnic views of elders belonging to various segments of the society also affect their willingness to approach the legal system. For example, the majority of Aboriginal elders believe that the Canadian justice system is not for them, but is an instrument for their oppression. These elders often do not approach the system even for their legal needs. (See: Chief Justice Iacobucci Report 2013.)
Moreover, the negative stereotypical approach towards ageism forms another aspect of social barrier for elders. Ageist notions are often deep-rooted and systemic. Ageism habitually manifests itself through small behaviours and decisions that cumulatively have significant negative impact on the lives of older adults. Most elders participate less in their communities due to fear of discrimination. They eventually develop depression, social anxiety, loneliness, alcoholism and tend to become more socially isolated and lose their social skills or become uncomfortable in the presence of other people. (See: Law Commission of Ontario – “Responding to the Law-related Needs of the Ontarians” (Chapter-II Ageism: Concept and Theories; and National Senior Council, “Report on the Social Isolation of Seniors” (October 2014).)
Likewise, elderly sub-population groups (LGBTQ+ elders, senior females, social, cultural, religious and ethnic minority elders) struggle with their unique socio-cultural barriers to accessing justice. LGBT elders commonly feel that the majority of lawyers or legal aid people are not respectful and empathetic towards the distinctiveness of their concerns. These professionals often lack training and do not understand their unique culture in a meaningful way. This results in deepening the social stereotypical barrier between elders and legal aid professionals or lawyers. (See: Peggy Edwards, “Elder Abuse in Canada: A Gender-based Analysis” Public Health Agency of Canada (PHAC) (2011); Loree and Daniels, “Lesbian, Gay Male, Bisexual and Transgendered Elders: Elder Abuse and Neglect Issues”, ((1998) 9:2 Journal of Elder Abuse & Neglect 35.)
In post-modern times the most common way to access information is through the Internet. Sadly a majority of Canadians aged 65 and above lack computer training. The rate of elder computer illiteracy is higher in the rural areas than urban areas. Hence, rural elders typically rely on the scantly available legal and community support to meet their legal needs – for example old libraries. Recently, elder computer training programs have been initiated in some cities like Toronto. (See: Globe and the Mail (Feb 20, 2003), “Seniors eager to surf the Net find help is just a click away".) However, the scope of such educational opportunities is very limited and is not readily available for the majority of elders especially in rural areas. Elder computer illiteracy poses a significant justice barrier.
Furthermore, significant developments in the field of science and technology have made the possibility of specialized tools, such as: sign language display; speech recognition and translation systems; eye typing communication systems; low-vision magnifiers with electronic page turners; portable optical character recognition programs that translate scanned or electronic text into speech or into Braille; talking picture books; telephones based on bone conduction; and laryngectomy speech amplifiers. These new technologies help in dissolving communication barriers for elders, children and people with disabilities. However, a high cost of the technology practically makes it inaccessible and unaffordable for elders who survive on low income and government support. (See: Susan Kemper and Jose C Lacal, “Technology for Adaptive Aging”, (2004) National Academy Press (US), Chapter 5- Addressing the Communication Needs of Aging Society.)
Physical and Mental Capacity Barriers
The prevalence of cognitive and physical limitations normally increases with age. Statistics Canada estimates that over 16 million Canadians live with at least one chronic condition. Our aging population is increasing and facing more diseases than before. Many elders keep themselves active through exercise, volunteering and other community involvements. However, at times due to chronic health issues (physical or cognitive) elders may not effectively protect their interests.
Recent data shows that arthritis is the one of the most common problems that is associated with mobility restrictions and dependency in activities in elders. 2011 statistics estimate that the number of Canadians living with Alzheimer’s and other kinds of dementia diseases is increasing. Around 14.9% of these patients are aged 65 and above. Most of these elders often lose their personal autonomy and face infantilization. (Also see: “Mental Illness in Canada, 2015”, Report from the Canadian Chronic Disease Surveillance System.)
Consequently, such elders face problems with physical mobility, communicating effectively, understanding the legal issues that they face, and providing adequate legal responses to their issues. Elders with cognitive and physical limitations often depend on their caregivers for accessing justice. However, often elders become victims from those upon whom they depend. (See: Donald Poirier and Norma Poirier, “Why it is so difficult to combat elder abuse and, in particular, financial exploitation of the elderly”, Law Commission of Canada Report (1999).)
Initiatives for Bridging the Gap and Overcoming the Barriers
“What is needed is major, sustained and collaborative system-wide change – in the form of cultural and institutional innovation, research and funding-based reform”.
- Roadmap for Change at page 5
Estimates show that in Canada, more than 20% of the population takes no meaningful action for their legal problems, and over 65% think that nothing can be done, are uncertain about their rights, and/or fear that the process is too costly and time taking. (See: Roadmap for Change at 4). The majority of these people belong to the vulnerable and low-income category, including elders. It becomes imperative to address the gaps and barriers that trouble elders in accessing justice when the future projections indicate increase in the elderly population. Following are some initiatives for bridging the justice gap for elders:
Research is imperative for a specific plan to address access to justice issues for elders. To date we do not have sufficient knowledge or information of the unique barriers that our elder sub-population faces. There is a critical need for research to bring out the cultural and socio-economic conditions of sub-populations of our senior demographic, namely: elderly females; Aboriginal and LGBTQ+ elders; and elders of immigrant and visible minority elders. Unless we understand their unique challenges, finding a solution remains elusive. A bias-free framework based on culturally relevant gender based research could be a good start. (See: Peggy Edwards, “Elder Abuse in Canada: A Gender-based Analysis” Public Health Agency of Canada (PHAC) (2011); Christine A Walsh & Yonhjie Yon, “Developing an Empirical Profile for Elder Abuse Research in Canada”, (2012) 24:2 Journal of Elder Abuse & Neglect 104).
A collaborative and multidisciplinary information-gathering process could be helpful in understanding the complex nature of elders’ everyday legal needs. The researchers could include an ensemble of legal researchers, economists, sociologists, medical or health care researchers, and others. Additionally, reliable and meaningful standards must be developed to evaluate the effect of any interventions or reforms. (See: S Edelstein and ED Spurgeon, “Fostering Elder Rights Through Innovative Collaborations: A Look at the Partnerships in Law and Aging Program” (2000) Journal of Poverty law and Policy 371.)
Legal and Policy Initiatives
Justice Cromwell in his report (Roadmap for Change) provided a nine-point Access to Justice Roadmap for improving the systematic problems of conventional approach. These nine points are also helpful in the context of elders’ access to justice:
A. Innovation Goals
- Refocus the Justice System to reflect and address everyday legal problems;
- Make essential legal services available to everyone;
- Make Courts and Tribunals fully accessible multi-service centers for public dispute resolution;
- Make coordinated and appropriate multidisciplinary family services easily accessible;
B. Institutional and Structural Goals
- Create a local and national access to justice implementation mechanisms;
- Promote a sustainable, accessible and integrated justice agenda through legal education;
- Enhance the innovation capacity of the civil and family justice system;
C. Research and Funding Goals
- Support access to justice research to promote evidence-based policy making; and
- Promote coherent, integrated and sustained funding strategies.
(See: Part 3 of the Roadmap for Change Report, Executive Summary at page 10)
While discussing the barriers in accessing the criminal justice system, the issue of harsher sentencing (under ss 718 of the Criminal Code) was noted to be counter-intuitive for those elders who are reluctant to use the traditional legal recourse. The Law Commission of Canada Report in this context recommends the full use of the provisions of section 717 of the Criminal Code authorizing alternate measures – for example, mediation.
Other initiatives may include:
- Availability and accessibility of more Specialized Elder Legal Aid Clinics such as Calgary Legal Guidance’s Elder Law program. Such clinics must also focus on the accessibility of rural elderly people at their clinics.
- Training for lawyers, legal aid and health care professionals about ways to better understand the complex nature of elder issues, especially for elders who are members of minority groups.
- Coordination and collaboration of legal and community support networks, lawyers and legal aid training on effective communication and understanding of culture.
- On similar lines of mandatory primary education, elder educational programs (say Back to School) can be introduced to educate seniors on language skills, communication skills and computer skills.
(See generally: S Edelstein and ED Spurgeon, “Fostering Elder Rights Through Innovative Collaborations: A Look at the Partnerships in Law and Aging Program” (2000) Journal of Poverty law and Policy 371; M Schecter and D Dougherty, “Combating Elder Abuse Through a Lawyer/Social Worker Collaborative Team Approach: JASA Legal/Social Work Elder Abuse Prevention Program (LEAP) (2009) 10:2 Care Management Journals 71; and Remarks Of The Right Honorable Beverley McLachlin, PC, Chief Justice Of Canada At The National Academy Of Elder Law Attorneys Conference, “ Human Dignity At Any Age: The Law's Response To An Aging Population”, (Seattle, April 26, 2012).
Elder Education and Empowerment Initiatives
The above structural and policy initiatives can be more effective when complemented with educating and empowering elders. Providing legal education to our elders about their rights, the legal system and the available resources would make a greater impact in bridging access to justice needs. With computer skills, elders would be able to access and benefit by numerous online initiatives, for example - Alberta Elder Abuse Awareness Network (AEAAN); Centre for Public Legal Education, Alberta (CPLEA) - “Let’s Talk: Elder Abuse”, etc. We can also use law universities (like Student Legal Assistance (SLA) at the Faculty of Law, University of Calgary), Elder legal clinics and other support organization as vehicles for promoting elder legal literacy. (See: James H Pietsch, “Expanding Access To Justice For Socially And Economically Needy Elders Through Law School Experiential Programs”, (2013) 20 Elder LJ 315.)
Furthermore, social and cultural stereotype attitudes about ageism can be gradually changed through specific educational courses for kids about elders, at the primary and secondary education stages. This would help in changing children’s stereotyped attitudes and perceptions about elders. Younger Canadians can educate themselves to be considerate and compassionate with the realities and struggles of elders. Training of professionals about being sensitive towards the unique needs of elders can help to minimize the access to justice gap for elders. This can be a start of a major cultural reform.
Programs like computer and Internet training for elders by the Toronto Library should be spread to other parts of the country. Computer literacy and Internet training have extreme potential as barrier crushers for elders. This would not only break the technology barrier but also make plenty of resources and information available at one click. (See: Globe and the Mail (Feb 20, 2003), “Seniors eager to surf the Net find help is just a click away".)
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