Ontario, Law Commission highlights ageism in justice system

TheStar.com – opinion/editorialopinion
Published on Thursday July 19, 2012.    By Goar, Carol, Editorial Board

Prime Minister Stephen Harper dislikes meddlesome courts, activist judges and rulings that challenge his authority. He has done everything in his power to limit their influence.

He killed the Law Commission of Canada, an independent agency set up by the government in 1997 to ensure the law reflected current values and standards. He eliminated the Court Challenges program, set up in 1978 to help individuals facing discrimination test their constitutional rights and set legal precedents. And he is now stripping judges of their authority, forcing them to impose mandatory minimum sentences for crimes involving drugs and firearms.

Ontario, fortunately, is moving in the opposite direction.

Five years ago, under the leadership of former attorney generalMichael Bryant, the province set up the Law Commission of Ontario “to put forward progressive ideas, ask tough questions and engage in creative, innovative, critical thinking.”

Since then, the commission has delved into everything from the treatment of vulnerable workers to the ownership of electronic health records. Some of its proposals have convinced the government to rewrite outdated laws. Others have prodded it to enforce existing laws.

It has just released its latest report: A Framework for the Law as it Affects Older Adults. It is designed to highlight and remedy the many ways provincial laws, regulations and policies discriminate on the basis of age, deprive seniors of rights guaranteed in the Constitution and shut them out of policy debates that directly affect their lives.

“The framework creates a coherent, principled, step-by-step means of evaluating law, policy and practices as they affect older adults,” says executive director Patricia Hughes.

The report is the culmination of three-and-a-half years of work. The project team, headed by staff lawyer Lauren Bates, began by consulting older people: some healthy, vigorous and financially secure, others struggling with illness, poverty, disabilities and isolation. It looked at various ethnic groups and family arrangements. It assembled an advisory panel of experts, commissioned several research papers and co-hosted a conference on elder law.

Even now, the work is not finished. The commission is preparing a plain-language summary for seniors, caregivers, community agencies and families.

Some of the issues raised in the report are already in the public domain: elder abuse; restricting seniors’ right to operate a motor vehicle; and the shortage of appropriate housing for an aging population.

Others aren’t even on people’s radar screens:

• Employment standards haven’t caught up to the elimination of mandatory retirement laws. This means people who stay in the workforce past their 65th birthday can be denied benefits available to their younger co-workers.

• Laws revoking existing wills upon marriage mean that seniors who develop dementia after a late-life marriage may lose control of their estates.

• Adult protection laws permit unilateral and heavy-handed government intervention in the lives of seniors, costing them their independence and the right to make their own decisions.

• Many seniors are unfamiliar with — or intimidated by — the Internet. Expecting them to get information online often means that they don’t know about policies, programs and laws that affect them.

• There are very few safeguards for seniors who entrust power-of-attorney to a relative, close friend or financial officer. No one monitors these substitute decision-makers. The onus is on frail seniors or suspicious family members to go to the police about financial, physical or mental abuse. Most cases are never reported. Those that are, are notoriously difficult to prosecute.

Often it’s not the law itself, but the assumptions of those who apply it that put seniors at a disadvantage. “Ageism may be conscious or unconscious,” the authors say. “It is manifested in attitudes that see older adults as less worthy of respect, less able to contribute and participate in society and of less inherent value than others.”

The commission does not prescribe simple solutions because there are none. Most of the questions it raises involve difficult balances, ingrained behaviour and lack of empathy.

But it opens people’s eyes, challenges their stereotypes and gives them clear principles to apply. That allows the law to evolve while remaining constant to Ontario’s values.

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