Thirteen years ago, the federal government amended the Criminal Code to impose a statutory duty on judges aimed at ensuring sentences for crimes against older adults reflect the significant impact these offences have on their lives.
“Our government has a responsibility to protect elderly Canadians and to ensure that crimes against them are punished appropriately,” the justice minister said at the time. “This legislation will help ensure tough sentences for those who take advantage of vulnerable members of our society.”
When weighing aggravating factors at sentencing, which are circumstances that can justify a more severe sentence, the provision requires courts to consider evidence that the offence had a significant impact on the victim due to their age and other personal circumstances, including their health and financial situation.
Before the amendment, courts already considered a victim’s advanced age and vulnerabilities like dementia as aggravating circumstances. Given that, critics suggested that formally codifying age and related personal circumstances was less about driving real change in sentencing and more about government wanting to be seen doing something about elder abuse. As one opposition MP said during parliamentary debate, “Bill C-36, the Protecting Canada’s Seniors Act, sounds good and has a great title but delivers very little.”
Over a decade later, what impact has this provision had in practice?
A recent case offers one example of how it is being applied.
In March, a Newfoundland and Labrador judge imposed a four-year conditional sentence on a “grandparent scam” offender who had been facing a global sentence of 24 years in prison for his crimes against 16 victims aged 70 to 88. Allowing the sentence to be served in the community, the court also gave offender, who was in his 20s and had no prior criminal record, four years to repay about $70,000 to the victims.
The judge considered a number of aggravating factors, including that the offence had a significant impact on the victims given their age, health, and financial situation. “Fraud schemes perpetrated against the elderly are despicable criminal actions and amount to an abuse of seniors,” the judge said, noting that fraud is the number one crime against older Canadians. “Given this context and the social value in preventing frauds targeting seniors, the principles of denunciation and deterrence take especial importance in the present sentencing exercise.”
Yet the outcome also turned on a number of mitigating factors that pulled in the opposite direction, resulting in a more lenient sentence.
If the offender had been incarcerated, he would have been unable to work, delaying the start of restitution. Given his financial circumstances, a community-based sentence was viewed as the most viable way for him to repay the victims.
As World Elder Abuse Awareness Day on June 15 approaches, the case invites reflection on whether harsher sentences necessarily produce better outcomes for victims, particularly when restitution depends on an offender’s ability to earn income. The instinct to favour lengthy imprisonment may not always serve older victims of crime, nor allow offenders, particularly young people with no prior criminal record, an opportunity to make amends.
Heather Campbell Pope is founder of Dementia Justice Canada and writes on legal issues affecting older adults.
