Ensuring Equality Under the Law for Older Adults

August 24, 2012 – The Law Commission of Ontario (LCO) released a report titled A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice. The report is based on the assumption that current laws and policies may often fall short of fully recognizing social complexity. In particular, older people are often marginalized or ignored by laws and policies aimed at the general population. As a result, the report questions the underlying assumptions on which laws and policies are built and attempts to establish a framework through which law and policy makers should consider the needs, challenges, and circumstances of an aging population.

Law and Policy Should be Built on Sound Principles

The report is quick to clarify that the framework does not provide a simple, definitive answer to all the challenges in developing and applying laws, policies, and practices that affect older adults. Instead, it aims to provide a consistent set of principles, identify and address potential barriers and sources of ageism, and consider key aspects of the relationship of older adults with the law. The principles that the report indentifies include respecting dignity and worth, fostering autonomy and independence, promoting participation and inclusion, recognizing the importance of security, responding to diversity and individuality, and understanding membership in the broader community.

In addition to these principles, the report recognizes other factors that are important to consider when applying the principles, such as the continuum of changing needs and circumstances of older adults and the need for laws to be designed to be inclusive and person-centered. Unfortunately, such principles and factors are often left out in the current design and implementation of laws and policies. The framework is meant to be applicable across all laws and policies to help policy-makers, courts and legislators, advocacy organizations and community groups, and other public and private actors that develop or administer polices that affect older adults.

Uncovering False Assumptions Underlying the Law

There are often underlying assumptions that may or may not have been intentionally held in making laws and policies. As a result, another major theme in the framework is uncovering those assumptions that affect older persons differently or disproportionately. It recognizes that since older persons have different needs and circumstance as they age, the effects of certain laws and policies may have different effects on older persons than the general population.

Ensure Reliable Complaint and Enforcement Mechanisms

Change for the sake of change is not enough, according to the report. Effective accountability and enforcement is needed to ensure that changes made to existing laws and policies reach the intended targets with the intended consequences. The framework calls for mechanisms to ensure accountability, transparency and effectiveness to be build into the law from the start. It recognizes that there are individuals that are at greater disadvantage or heightened risk, who need to be protected from the power imbalances that occurs when laws and policies are implemented. Those mechanisms need to be supplemented with adequate age-friendly supports and resources to ensure that they are navigable and accessible for older people. Older persons should be able to easily understand their rights, advocate for themselves, and voice their concerns and complaints.

As advocates for change in policy and law, CARP recognizes the importance of designing laws and policies that are inclusive, fair, and equitable to older Canadians.

In offering a framework for writing laws and policies inclusive of older Canadians, the LCO is giving law and policy makers a useful tool in that endeavour. Ultimately, however, it’s up law and policy makers to write laws and policies that promote and respect the dignity of older Canadians.

The full report can be found on the website of the Law Commission of Ontario.