Legal Definitions of Elder Abuse and Neglect

2.0 CANADA

Canada is a federal state, meaning that the responsibility for making laws in specific areas is divided between the federal and provincial and territorial governments (this is often referred to as the "division of powers"). These powers are "exclusive", with each level of government restricted to the areas of jurisdiction conferred to it by the Constitution Act, 1867 and enumerated in sections 91 (federal powers) and 92 (provincial or territorial powers).8

While in theory the powers conferred by sections 91 and 92 are "exclusive", in practice there is considerable overlap between federal and provincial legislation. Section 91 (27) gives the federal government exclusive jurisdiction over the enactment of criminal law and it is under this authority that the federal government enacted and amends the Canadian Criminal Code. However, section 92(14) gives the provinces and territories jurisdiction over the administration of justice within the province, which among other things allows them to prosecute offences under the national Criminal Code. So while criminal laws impacting on elder abuse are federal; criminal justice policy is created by all three jurisdictions, the federal, provincial and territorial governments.

The provinces and territories have the exclusive power to legislate in the area of "property and civil rights in the province" under section 92(13), a power that has been interpreted broadly to give the provinces and territories jurisdiction over a wide range of legal rights in areas such as labour relations, health and social services, family law and consumer protection. There is also overlap between federal and provincial/territorial jurisdictions in those areas. For example, the federal government is responsible for legislating the Canada Health Act, while the provinces and territories are responsible for the administration of health care services. The federal government is also responsible for income tax legislation, old age security, and the national Pension Plan.

In the context of defining elder abuse and neglect, the result of the overlap between federal and provincial powers is that relevant legislation falls within both jurisdictions. This has led to considerable variation and inconsistency across the country, with different legislative approaches in each province and territory with respect to a number of relevant areas, including adult protection, family relations, marriage, property rights, health and human rights.

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