Elder Abuse – When Does it Become Criminal?

April 23, 2012 Hull & Hull LLP Elder Law Tags: 0 Comments

As Canada’s population ages, elder abuse has come out of the shadows and into the mainstream of public consciousness. It is now both regularly featured as a topic of conversation in the government and the media, with proposed changes to the law being hotly debated, raising awareness of the topic in its wake. Perhaps you have even seen the recent television commercial that the Government of Canada has put out dealing with the subject matter, in which a young individual forcibly removes money from the wallet of what appears to be his mother, or violently shakes an elderly family member, before we are finally urged to face the reality of what is going on and not allow it to continue.

With the increased media and government attention on the matter we can no longer say that we are unaware of what is going on around us. But what happens when someone commits elder abuse?  When you steal or commit fraud against an elderly family member is the penalty no different than if you had done the same against a stranger? When and how does elder abuse become a criminal offence?

When elder abuse becomes criminal in nature, like any other criminal offence, it is dealt with by the Criminal Code. While there are specific provisions in the Criminal Code that reference situations of elder abuse (such as s. 331, theft by a person holding a power of attorney), many of the provisions are general in nature, with elder abuse merely being a subcategory within the broader general heading. These offences include s. 322(1) (theft), s. 346(1) (extortion), and s. 366 (forgery). Being found guilty of committing any of these offences can carry some serious repercussions, with possibly penalties including maximum sentences of 10 years in prison for theft, to even life in prison for extortion.

The recent case of R. v. Kaziuk does an excellent job at demonstrating the level of severity with which the court is taking cases of elder abuse when they come before it. In Kaziuk, the court dealt with a case in which the accused was alleged to have placed mortgages on his mother’s property for his own benefit using the power of attorney that she had granted in his favour. In the words of the court, by the time the accused was done, his 88 year old mother was homeless, wiped out financially, and suffered from a broken heart after her only child did this to her. The accused was found guilty, and despite the Crown only seeking a sentence of between 3-4 years, the accused was sentenced to 10 years in prison by the judge. The absolute disgust which Justice Baldwin had for the accused can be seen in the language of the judgment, writing; "Mr. Kaziuk would rip-off the wings of all the angels in heaven and sell them to the devil for his own gain if he could…Not even the notorious fraudster Bernie Madoff was guilty of destroying his own mother as Mr. Kaziuk has repeatedly done. In jail, this offender will be better off physically than his own mother. He will be sheltered, fed regularly, and kept warm."

When elder abuse becomes criminal in nature a person can be charged under the Criminal Code. While the decision as to whether or not a person will be charged ultimately rests with the police and the Crown, cases like Kaziuk clearly demonstrate that when these cases get before the courts the judges are taking them seriously.  Elder abuse is a serious problem. With raised awareness of both the problem and the possible penalties for those who commit it we can hopefully help put an end to it.

Ian Hull – Click here for more information on Ian Hull

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