UPDATE: July 24, 2020 As the Ford government did not respond to our demand letter by the deadline, our lawyers are working as quickly as possible to draft court documents. Stay tuned for further updates.
TORONTO: The Justice Centre for Constitutional Freedoms (jccf.ca) today announced that it will file a Charter challenge against the Ontario government and various Long-Term Care Homes (LTCH), on behalf of several essential family caregivers and their elderly relatives, for their infringement of residents’ Charter rights to life, liberty and security of the person.
The Justice Centre has served a legal demand letter today on Premier Doug Ford, the Chief Medical Officer of Health Dr. David Williams and the Minister of Long-Term Care Dr. Merrilee Fullerton, outlining the concerns of their clients and a proposal to avoid litigation.
Essential family caregivers are not visitors. They provide necessary care to elderly or vulnerable relatives in congregate care settings, such as long-term care homes, and have always been considered part of the health care team. Many volunteer 10-20 hours per week or more, saving the government vast sums in staffing costs. When the lockdown arising from concerns about COVID-19 began in March, all visitors were denied access, even those family members providing this essential care.
While caution in the earliest days of the pandemic may have been warranted, it has been patently clear for many months now that these essential caregivers could be properly trained in the use of personal protection equipment (“PPE”), and could safely resume their caregiving responsibilities as they had before the lockdown. Instead, the Ford government has chosen to ignore the people who have long experience in helping to care for their relatives and a vested interest in their health and well-being, in favour of bringing in the army, students, teachers, part-timers, new hires and other people who were deemed safe enough to enter the premises. Responsible family caregivers, however, continue to be viewed as disease vectors.
Despite recommendations from many organizations working with the elderly, including the Registered Nurses’ Association of Ontario, the Provincial Geriatrics Leadership Office, the Canadian Foundation for Healthcare Improvement, and the National Institute on Ageing, supporting the immediate return of family caregivers and providing detailed suggestions to ensure the safety and success of their re-introduction, the government has ignored these rational, evidence-based approaches.
Consequently, the care that previously had been provided by family members has—in many cases—simply not continued during the four months of lockdown. Seniors have been left unbathed, with unwashed hair, nails not trimmed, dirty clothes not changed, legs not stretched, rooms not cleaned or organized, and filth accumulating in rooms that have become prison cells for vulnerable elders.
“That is not even the worst of it,” states Lisa Bildy, an Ontario-based lawyer with the Justice Centre. “The mental and physical health of many elderly residents has also rapidly declined. For dementia sufferers, the passage of four lonely months has meant that familiar faces have become stranger’s faces. Many have lost their will to live. Some have died – alone. We have received dozens of emails from across the province telling us these horrible stories.”
“This isn’t right. It isn’t moral, it isn’t constitutional, and it isn’t necessary,” continues Bildy.
The Canadian Charter of Rights and Freedoms guarantees Canadians the right to life, liberty and security of the person. At a minimum, the interference by the Ford government in the ability of LTCH residents to make decisions (or have their substitute decision makers make decisions) concerning their bodily integrity and medical care infringes their liberty rights in a manner that is not in accordance with the principles of fundamental justice.
Further, leaving elderly, vulnerable residents to endure intolerable suffering, physically, mentally, and emotionally, impinges on their constitutional rights to liberty and security of the person. In the rare circumstances when a government must violate such rights, it has the responsibility under section 1 of the Charter to ensure that there is a rational connection between the measures taken and the objective, and that such measures are proportionate and minimally impairing of the rights of citizens.
“The elderly are no less entitled to these rights than any other Canadian,” explains Jay Cameron, Litigation Director with the Justice Centre. “The Ford government is violating our clients’ Charter rights, and the rights of the isolated elderly generally in its care, in a manner that cannot be demonstrably justified in a free and democratic society,” adds Cameron.
As was outlined in the Justice Centre’s detailed report, entitled “Unprecedented and Unjustified: A Charter analysis of Ontario’s response to COVID-19,” this government’s singular focus on one risk has prevented an appropriate balancing of the benefits and costs of its decision to infringe the rights and freedoms of Ontarians.
The Justice Centre has advised the government that it will be commencing proceedings, unless a government directive is issued immediately that is clear, concise, explicit and mandatory for all LTC homes in the province of Ontario, without exception, adopting the recommendations of the Registered Nurses’ Association of Ontario for the immediate re-integration of essential family caregivers.
“We hope the Ford government will recognize that it is in its own interest to move quickly to allow family caregivers to return to LTCHs,” states Bildy. “Such caregivers ease the burden on employees to ensure that an appropriate level of care can be provided to all residents, and they provide important oversight functions. This is to the benefit of everyone, including the LTCHs and the Ford government, who are already facing lawsuits for providing inadequate care. This problem will only worsen the longer essential family caregivers are kept out,” Bildy concludes.
The Justice Centre is in the process of preparing court documents.