Bill C-295’s blind spot? Persons with disabilities in community care | Kate McInnes

By Kate McInnes

Law360 Canada (April 11, 2023, 2:56 PM EDT) -- On Nov. 29, 2022, member of Parliament Hedy Fry, motivated by the “clear evidence of abuse of seniors in care facilities across the country” that came to light during the COVID-19 pandemic, introduced Bill C-295. This legislation would amend ss. 214, 215, and 718.21 of the Criminal Code to criminalize owners and managers of long-term care facilities who fail to provide the “necessaries of life” — such as food, shelter and medical attention — to people in their care.

These amendments hinge on what the drafters of Bill C-295 have clearly assumed is the primary vehicle for long-term care in Canada: the quintessential retirement home. The bill would amend section 214 to provide the following definition of a “long-term care facility” as:

… a residential facility, or part of a residential facility, the primary purpose of which is to provide long-term accommodation, meals, assistance and care to three or more adults who reside in the facility and who

(a) are unrelated to the owners and managers of the facility by blood or marriage, and

(b) are unable to provide themselves with the necessaries of life by reason of age, illness, mental disorder, disability or frailty[.]

This definition might be sufficient if the only purpose of Bill C-295 was to tackle elder abuse in nursing homes. This legislation, however, is not restricted to the protection of any one demographic. As Fry herself has said, the bill would respond to the mistreatment of any “vulnerable” person who benefits from long-term care, including persons with disabilities.

Bill C-295’s current drafting, however, reveals a fundamental misunderstanding of what long-term care actually looks like for thousands of Canadians with disabilities. The bill’s definition of a “long-term care facility” is not only arbitrary and unnecessarily restrictive, but it is also contrary to the anti-institutionalization and pro-community living trends that have dominated public policy in every region of this country for the last 50 years. In British Columbia, for example, the most commonly requested housing support funded by Community Living B.C. — the Crown corporation responsible for arranging housing for persons with disabilities — is a “shared living arrangement,” in which an adult with a disability lives in the home of a caregiver who is contracted to provide support.

As Bill C-295 defines a “long-term care facility” as a “residential facility” occupied by “three or more adults,” almost all community-based care arrangements for persons with disabilities would be excluded from the ambit of this legislation. This oversight is particularly egregious considering that the sole conviction of a caregiver under s. 215 of the Code involved a person with a developmental disability living in a shared living arrangement.

Florence Girard was born in 1964. She was described by those who loved her as “very social” but “sensitive.” She loved the film Titanic, having sleepovers with her friends, and sitting outside in the summer and watching the birds. “Flo,” as she preferred to be called, had Down syndrome, and required assistance in every aspect of her daily life. Her care had been taken over by the British Columbia Ministry of Children and Family Development in 1981, and she lived the majority of her life in group care homes.

In 2010, Flo became one of the 4,000 British Columbians with disabilities participating in a shared living arrangement when she moved into the home of her caregiver, Astrid Dahl. Flo’s shared living arrangement with Dahl was co-ordinated and overseen by Kinsight, a non-profit agency that receives funding from Community Living B.C.

On Oct. 13, 2018, Flo was found dead in Dahl’s Port Coquitlam home. She had died of starvation and severe malnutrition. At her death, she weighed just 51 pounds. Flo had not been taken to a doctor in four years; her autopsy revealed pneumonia in her lungs and a mouth full of rotted and broken teeth. For reasons that remain unclear, Flo had been weaned off her pain medication without the authorization of a medical professional. She was not allowed to leave her bedroom, and Dahl even went so far as to have a locked gate installed on her doorframe. Flo was not allowed to have the sleepovers that she so enjoyed, nor could she go onto the deck and watch the birds as she pleased. The evidence at trial was clear: Flo died a slow, painful and completely preventable death.

In my opinion, Dahl is not the only one to blame for Flo’s death and the deplorable conditions she endured in the last months of her life. Per official Kinsight policy, Dahl, as an independent contractor, was required to submit quarterly or biannual reports concerning Flo’s welfare and progress. No reports were filed by Dahl in 2017 or 2018, and no one from Kinsight flagged or questioned these omissions. When a Kinsight co-ordinator attended Dahl’s residence on Aug. 24 and Sept. 11, 2018, she was advised by Dahl that Flo had gotten the flu and was being fed soup and Ensure, a meal replacement. The co-ordinator did not visit Flo to ask her how she was doing, and she did not follow up to inquire as to whether Flo had been seen by a doctor.

In 2022, Dahl was found guilty under s. 215 for failing to provide Flo with the necessaries of life (R. v Dahl 2022 BCSC 1387). She was sentenced to just 100 hours of community service, 12 months of curfew and 12 months of probation. Kinsight was initially charged under s. 215 as well, but those charges were stayed when the B.C. Prosecution Service determined the facts of the case no longer met the charge approval standard. Even if they had, the amendments provided for in Bill C-295 would not have captured Kinsight’s role in Flo’s death, as Flo had died in a shared living arrangement rather than in “a residential facility” that provides care to “three or more adults.”

The purpose of Bill C-295 is to criminally sanction organizations that fail in their duty to provide the necessaries of life to vulnerable adults in their care. Surely, this purpose ought not be restricted by the form the care in question takes — institutional, community-based, or otherwise. Whether Flo Girard died in a group home or in a bedroom in her caregiver’s townhouse does not alter the duty Kinsight had to ensure she was provided the necessaries of life by Dahl, who they contracted, paid and supervised.

In the words of MP Majid Jowhari, “the reasoning behind Bill C-295 is quite simple: that organizations have a responsibility to the vulnerable, and failure to meet this obligation must be punished in a clear and unequivocal manner.”

If Parliament actually wants to achieve this goal, it must identify the different forms of long-term care that exist in Canada today and revise Bill C-295 accordingly. It must account for community-based care, including shared living arrangements. Most importantly, Parliament must consult with disability rights groups and self-advocates in refining Bill C-295, which has been drafted without consulting the very people that the legislation seeks to protect.

Justice for Flo Girard — and thousands of other Canadians with disabilities living in community-based long-term care — requires it.

Kate McInnes is a recent law graduate of the University of British Columbia. She will begin her M.Sc. in international human rights law at the University of Oxford in September 2023, where her research will focus on investigating and prosecuting violence against persons with disabilities.

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