Transcript: Crime, Punishment, and Dementia | Mar 28, 2019

Steve sits in the studio. He's slim, clean-shaven, in his fifties, with short curly brown hair. He's wearing a gray suit, white shirt, and checkered blue tie.

A caption on screen reads "Crime, punishment and dementia. @spaikin, @theagenda."

Steve says DEMENTIA PRESENTS A
GROWING RANGE OF CONCERNS TODAY
AS CANADA'S POPULATION CONTINUES
TO AGE.
SOMETHING THAT'S OFTEN
OVERLOOKED IS THAT VIOLENT
BEHAVIOUR CAN SOMETIMES BE A
SYMPTOM OF THE CONDITION.
AND WHILE DEMENTIA PATIENTS ARE
MORE OFTEN THE VICTIMS OF CRIME
THAN THE ONES WHO COMMIT THEM,
THERE ARE THOSE WHO WILL END UP
ON THE WRONG SIDE OF THE LAW.
AND HERE TO HELP US UNDERSTAND
THE ISSUES THIS PRESENTS:
GRAHAM WEBB, LAWYER AND
EXECUTIVE DIRECTOR WITH THE
ADVOCACY CENTRE FOR THE ELDERLY.

Graham is in his mid-fifties, clean-shaven, with short, receding gray hair. He's wearing glasses, a black suit, white shirt, and blue tartan tie.

Steve continues GRAHAM, GOOD TO HAVE YOU HERE ON TVO TONIGHT.

Graham says THANK YOU, STEVE.

Steve says THIS IS AN ISSUE I
DON'T THINK WE KNOW MUCH ABOUT.
SO WHEN DID THIS FIRST PRESENT
ITSELF ON YOUR RADAR SCREEN?

Graham says ON MY RADAR WOULD HAVE BEEN
IN 1985 WHEN I BEGAN PRACTISING
LAW DOING CRIMINAL DEFENCE WORK.

Steve says HOW COMMON IS IT TODAY?

The caption changes to "Graham Webb. Advocacy Centre for the elderly."
Then, it changes again to "The wrong side of the law."

Graham says WELL, I THINK IT'S VERY
COMMON.
IT'S CERTAINLY INCREASING
BECAUSE WE HAVE MORE SENIORS
THAN WE EVER DID BEFORE, AND THE
PROFILE OF I THINK CRIMINAL
DEFENCE WORK IN GENERAL IS
SHIFTING FROM FEWER PROPORTIONS
OF YOUNGER ACCUSED AND HIGHER
PROPORTIONS OF OLDER ACCUSED.
STILL FEWER OLDER THAN YOUNGER
BUT THE PROPORTION IS SHIFTING.

Steve says I'M NOT SURE THE
JUSTICE SYSTEM WAS SET UP WITH A
VIEW TOWARDS DEALING WITH PEOPLE
WITH DEMENTIA WHO I GUESS
TECHNICALLY SPEAKING ARE
VIOLATING THE CRIMINAL CODE WITH
VARIOUS THINGS THEY MAY DO.
SO I SHOULD FOLLOW UP ON THAT.
HOW DOES THE CRIMINAL JUSTICE
SYSTEM HANDLE PEOPLE WHO HAVE
DONE THINGS THAT ARE ILLEGAL BUT
MAY HAVE DONE THEM NOT OF A
SOUND MIND, AS IT WERE?

Graham says WELL, THERE IS AN ISSUE OF
CRIMINAL RESPONSIBILITY.

Steve says RIGHT.

Graham says AND SO AN OLDER ADULT WHO'S
SUFFERING FROM DEMENTIA MIGHT
NOT BE CRIMINALLY RESPONSIBLE
FOR THEIR ACTIONS.
IT'S NOT A FOREGONE CONCLUSION,
BECAUSE THERE ARE PEOPLE WHO
HAVE A MODERATE, MILD DEMENTIA
THAT THEY COULD STILL UNDERSTAND
THE NATURE AND QUALITY OF THEIR
ACTIONS AND BEAR CRIMINAL
RESPONSIBILITY.
THERE ARE OTHERS WHO DON'T, AND
ONES WHO DON'T MIGHT BE FOUND
GUILTY OF AN OFFENCE AND THEN
LAND UP IN THE MENTAL HEALTH
CRIMINAL JUSTICE SYSTEM.

Steve says I GUESS I'M WONDERING:
DOES THE CRIMINAL CODE PROVIDE
FOR TREATING PEOPLE WHO HAVE
COMMITTED CRIMES BECAUSE OF
DEMENTIA DIFFERENTLY THAN THOSE
WHO HAVE DONE IT OF SOUND MIND,
AS IT WERE?

The caption changes to "Graham Webb, @acelawyers."

Graham says OH, ABSOLUTELY.
ONTARIO COURT JUSTICES, SUPERIOR
COURT JUSTICES AND LAW
ENFORCEMENT ACROSS THE COUNTRY
IS AWARE OF THAT ISSUE.
BUT THE PROBLEM IS THAT CASES
THAT DON'T REALLY BELONG IN THE
CRIMINAL JUSTICE SYSTEM END UP
THERE FOR WONT OF OTHER
RESOURCES.
THERE'S NO OTHER AVENUE
AVAILABLE WHEN THERE SHOULD BE
BECAUSE DEMENTIA IS A HEALTH
ISSUE.
AND SO VIOLENT TENDENCIES THAT
ARE ASSOCIATED AS A SYMPTOM OF
DEMENTIA IS A HEALTH AND A
HEALTH CARE ISSUE.
AND MANY TIMES THESE BELONG IN
THE HEALTH CARE SYSTEM, NOT IN
THE CRIMINAL JUSTICE SYSTEM.

The caption changes to "Watch us anytime: tvo.org, Twitter: @theagenda, Facebook Live."

Steve says LET'S DO A FOR
INSTANCE, HERE.
SO GIVE ME AN EXAMPLE OF
SOMETHING WHO HAD NOT HAD
DEMENTIA DONE IT IT WOULD HAVE
BEEN A CLEAR CRIME, BUT IF
SOMEBODY WITH DEMENTIA DOES IT,
IT OUGHT TO BE CONSIDERED IN A
DIFFERENT WAY.

Graham says WELL, I CAN GIVE YOU AN
EXAMPLE OF ONE CASE I WORKED ON
WAS AN OLDER MAN WHO WAS LIVING
IN THE COMMUNITY WITH HIS WIFE,
AND HE WAS HAVING ADVANCING
DEMENTIA.
THIS MAN HAD NEVER HAD ANY
CRIMINAL TENDENCIES.
PROBABLY DIDN'T HAVE A VIOLENT
BONE IN HIS BODY, BUT AS THE
DEMENTIA PROGRESSED, VIOLENT
TENDENCIES EMERGED, AND THE MAN
WAS CHARGED WITH AN ASSAULT
UNDER THE CRIMINAL CODE.
IT HAPPENED TO BE A DOMESTIC
ASSAULT, AND SO IT LANDED UNDER
ALL OF THE PROSECUTORIAL
GUIDELINES OF PROSECUTING THESE
CRIMES.

Steve says DOMESTIC ASSAULT
MEANING HE HIT HIS WIFE?

Graham says HE HIT HIS WIFE, YEAH, AND
THERE WAS NO DOUBT THAT THIS ACT
HAD HAPPENED.
THE ISSUE HAD BEEN IS HE
CRIMINALLY RESPONSIBLE OR NOT.
NOW, STEVE, FOR MAJOR CRIMES,
LIKE A HOMICIDE, FOR EXAMPLE, OR
YOU KNOW, GRAVE CRIMES WHERE
THEY WOULD NORMALLY BE A
PENITENTIARY SENTENCE, SOMEONE
WHO'S CHARGED WITH A CRIME MIGHT
BE FOUND CRIMINALLY NOT
RESPONSIBLE AND END UP IN THE
CRIMINAL JUSTICE SYSTEM AT A
PSYCHIATRIC HOSPITAL FOR AN
INDEFINITE PERIOD OF TIME.

Steve says IS THAT CASE OFFERED
IN THE CASE OF A DEMENTIA SUFFERER?

Graham says WELL, IT MAY BE, BECAUSE
DEMENTIA CAN CONTRIBUTE TO A
VERDICT OF NOT CRIMINALLY
RESPONSIBLE, BUT PEOPLE WHO ARE
CHARGED WITH CRIMES THAT DON'T
NORML ATTRACT... SENTENCES OR
MUCH LESS PENITENTIARY SENTENCES
ARE VERY DISADVANTAGED IF THEY
HAVE TO GO INTO THE CRIMINAL
JUSTICE SYSTEM INDEFINITELY.
YOU KNOW, THERE'S A SAYING WHEN
I DID CRIMINAL DEFENCE LAW, YOU
GOT TO BE CRAZY TO PLEAD
INSANITY, YOU KNOW, AND SO THIS
IS A TYPE OF CASE WHERE THE MAN
REALLY DIDN'T BELONG IN THE
CRIMINAL JUSTICE SYSTEM BECAUSE
IT WAS A HEALTH ISSUE AND A
HEALTH CARE ISSUE.
HE BELONGED IN THE LONG-TERM
CARE HOME SYSTEM.

Steve says AND IS THAT WHAT HAPPENED?

Graham says WELL, EVENTUALLY, BUT IN THE
MEANTIME THE MAN WAS REALLY...
HE WOULD QUALIFY FOR ADMISSION
TO A LONG-TERM CARE HOME IN
ONTARIO, THAT'S REALLY LIKE A
NURSING HOME OR A HOME FOR AGED
OR ELSEWHERE A PERSONAL CARE
HOME, PERHAPS, BUT NO HOME WOULD
ACCEPT HIM WHILE CHARGES ARE
OUTSTANDING.

Steve says NOW IS THAT A PRACTICE
OR A LAW OR WHAT'S... WHY IS
THAT HAPPENING?

Graham says IT'S A PRACTICE.

Steve says IF YOU HAVE BEEN
CHARGED WITH A CRIME, YOU CANNOT
GET INTO A LONG-TERM CARE FACILITY?

Graham says WELL, IT'S NOT REALLY CHARGED
WITH A CRIME, BUT IT'S
EXHIBITING VIOLENT TENDENCIES.
IF YOU ARE SOMEONE WHO SETS
FIRES OR HAS A HISTORY OF
PHYSICAL OR SEXUAL ABUSE, THEN
YOU MIGHT QUALIFY FOR ADMISSION
BECAUSE THESE ARE HEALTH CARE
FACILITIES, BUT THE INDIVIDUAL
FACILITIES ARE PROBABLY NOT
GOING TO ACCEPT THE APPLICANT,
SO THE MAN HAS NOWHERE TO GO.
SO IN THIS CASE, HE ENDED UP AS
A SOCIAL ADMISSION TO A REGIONAL
HOSPITAL AND REALLY OCCUPIED A
HOSPITAL BED UNTIL WE COULD GET
THE CHICKEN AND THE EGG RESOLVED
BECAUSE HE COULDN'T GET THE
CHARGES WITHDRAWN UNTIL HE HAD
AN APPROPRIATE LONG-TERM CARE
ADMISSION, AND HE COULDN'T GET
THE LONG-TERM CARE ADMISSION
WHILE THE CHARGES WERE OUTSTANDING.

Steve says WELL, HERE'S SOME
FACTS THAT WE SHOULD INTRODUCE
TO THE DEBATE AS WELL.
THIS IS NEW POLLING COMMISSIONED
BY THE ONTARIO COUNCIL OF
HOSPITAL UNIONS AND THE CANADIAN
UNION OF PUBLIC EMPLOYEES.
AND THEY ARE DESCRIBING A
SITUATION OF SIGNIFICANT
VIOLENCE IN LONG-TERM CARE.

A slate appears on screen, with the title "Violence in long-term care."

Steve reads data from the slate and says
FOR EXAMPLE, 80 percent OF THOSE
SURVEYED HAD EXPERIENCED
PHYSICAL VIOLENCE ON THE JOB,
63 percent SAID THAT THEY HAD FACED
SEXUAL HARASSMENT AT LEAST ONCE
ON THE JOB.
43 percent SAID THEY HAD EXPERIENCED
SEXUAL ASSAULT.
NOW GIVEN NUMBERS LIKE THAT, IF
A PERSON HAS VIOLENT TENDENCIES,
IS PUTTING THEM IN A LONG-TERM
CARE FACILITY REALLY THE ANSWER?

The caption changes to "Long-term care."

Graham says YES UNDER CERTAIN
CIRCUMSTANCES.
THE CIRCUMSTANCES ARE IF THE
PERSON IS ADMITTED TO A
SPECIALIZED UNIT.
HERE IN ONTARIO WE CALL THEM
BEHAVIOURAL SUPPORT UNITS WHERE
THERE ARE SPECIAL TRAINING AND
FACILITIES TO CARE FOR DEMENTED
PERSONS WITH VIOLENT TENDENCIES.
IT'S NOT THAT WE DON'T KNOW HOW
TO CARE FOR THESE PEOPLE.
WE HAVE KNOWN THAT FOR A LONG
TIME.
THE LONG-TERM CARE HOME INDUSTRY
IS QUITE ABLE TO DO THAT, BUT
THE PROBLEM IS THERE ARE NOT
ENOUGH BEHAVIOURAL SUPPORT UNITS
AND NOT ENOUGH BEHAVIOURAL
SUPPORT BEDS.
AND THAT'S THE PROBLEM, IS THAT
WHEN THERE'S DEMENTIA AND
VIOLENCE, THERE IS A WAITING
LIST FOR BEHAVIOURAL SUPPORT
UNITS, BUT THERE'S NO WAITING
LIST FOR JAIL.

Steve says SO WE NEED MORE... NO
WAITING LIST FOR JAIL MEANING
THEY CAN BE INCARCERATED MUCH
MORE EASILY THAN THEY CAN BE
FOUND A PLACE IN A LONG-TERM
CARE FACILITY.

Graham says IT'S REALLY THE LAST RESORT.
IT'S THE NO OTHER OPTION.
YOU KNOW, AT ONE TIME I
REPRESENTED AN ELDERLY MAN IN
HIS 80S.
THIS MAN HAD A LONG-TERM
SAME-SEX RELATIONSHIP WITH
ANOTHER MAN.
THEY WERE BOTH VERY CULTURED,
WELL EDUCATED, REALLY REFINED
PEOPLE WHO HAD NO CRIMINAL
TENDENCIES AND NO VIOLENT
TENDENCIES, BUT THEY BOTH
DEVELOPED DEMENTIA, AND THEY
LIVED IN AN UPSCALE PART OF TOWN
IN A RENTED APARTMENT, AND THEY
REACHED THE POINT WHERE AT
CERTAIN TIMES THEY WOULD FAIL TO
RECOGNIZE EACH OTHER, AND THEY
BECAME MUTUALLY ASSAULTIVE, AND
THE POLICE WERE CALLED ON MANY
OCCASIONS BY NEIGHBOURS AND THE
LANDLORD UNTIL FINALLY THE
POLICE FELT THEY HAD NO OTHER
ALTERNATIVE BUT THEY HAD TO
ARREST SOMEBODY, SO THEY
ARRESTED MY CLIENT WHO WAS THEN
IN HIS 80S, AND THIS MAN, WHO
HAD PROBABLY NEVER HAD A PARKING
TICKET, I'M SURE I'M
EXAGGERATING, BUT HE HAD NO
EXPERIENCE WITH THE CRIMINAL
JUSTICE SYSTEM, FOUND HIMSELF IN
HIS 80S WITH DEMENTIA IN THE
GENERAL PRISONER POPULATION,
WHICH IS QUITE YOUNG, GOING BACK
AND FORTH TO THE CRIMINAL COURTS
IN A PADDY WAGON.

Steve says YOU DON'T WANT TO SEE THAT.

Graham says WELL, IT'S SOMETHING YOU'D
NEVER WANT TO SEE IN YOUR LIFE,
AND EVENTUALLY THE MAN DID GET
OUT OF THE CRIMINAL JUSTICE
SYSTEM AND INTO THE HEALTH CARE
SYSTEM WHERE HE BELONGED, BUT
THE HEALTH CARE SYSTEM WAS NOT
ABLE TO RESPOND WHEN IT NEEDED
TO, AND THE CRIMINAL JUSTICE
SYSTEM... IT FELL TO THE
CRIMINAL JUSTICE SYSTEM TO DEAL
WITH THE CASE THEY... THAT
NOBODY ELSE COULD HANDLE JUST TO
PREVENT INJURY.
SO THAT'S FAIRLY COMMON.
THAT'S A COMMON TYPE OF SITUATION.

Steve says WELL, LET'S FINISH UP
ON THIS, GRAHAM, BECAUSE I
PRESUME WITH OUR POPULATION
INCREASINGLY AGING AND WITH
NUMBERS OF DEMENTIA SUFFERERS
INCREASING, THIS IS SOMETHING
WE'RE GOING TO BE SEEING A LOT
MORE OF IN FUTURE.
IS THAT FAIR TO SAY?

The caption changes to "Facing an aging population."

Graham says THAT IS ABSOLUTELY FAIR TO
SAY, STEVE.
WE NEED MORE OF THE RIGHT,
APPROPRIATE FACILITIES.
WE NEED MORE BEHAVIOURAL SUPPORT
UNITS, MORE BEDS.
WE HAVE LESS THAN 200 BEDS OF
BEHAVIOURAL SUPPORT UNITS ACROSS
THE PROVINCE OF ONTARIO.
WHICH IS SHOCKINGLY LOW.

The caption changes to "Producer: Katie O'Connor, @KA_OConnor."

Steve says WELL, I KNOW THIS HAS
BEEN ON YOUR RADAR SCREEN FOR 35
YEARS, BUT IT'S I THINK PROBABLY
JUST RECENTLY ON THE RADAR
SCREENS OF A LOT OF US, SO
THANKS FOR BRINGING IT TO OUR
ATTENTION.

Graham says THANK YOU.

The caption changes to "Subscribe to The Agenda Podcast: tvo.org/theagenda."

Steve says THAT'S GRAHAM WEBB,
LAWYER AND EXECUTIVE DIRECTOR
WITH THE ADVOCACY CENTRE FOR THE ELDERLY.

Graham says THANK YOU, STEVE.

Watch: Crime, Punishment, and Dementia