Dementia: The new frontier of criminal justice

By Heather Campbell

This article originally appeared in The Lawyer's Daily.

On the morning of Oct. 4, 2016, 85-year-old Fred van Zuiden stood alone before a justice of the peace in a Calgary courtroom. He was wearing a blue prison jumpsuit and appeared confused. He had no lawyer. Hours earlier, van Zuiden had allegedly murdered his wife of 56 years. Police had found her dead from blunt force trauma.

Audrey van Zuiden had been caring for her ailing husband at home; she did not want to place him in a care home. But at 80 years old, she was growing increasingly frail; at 5-foot-11, he remained a sturdy 180 pounds. As his dementia worsened, he often forgot that Audrey was his wife. Indeed, friends suspect that on the night of the killing, he had mistaken her for an intruder.

It was a cruel and unusual end to a decades-long love story. Described by friends as soulmates, the couple met in 1958, and went on to build Western Canada’s premier sailboat company. They also collaborated on van Zuiden’s book, a memoir that recounts his wartime memories as an 11-year-old Jewish boy who had to fend for himself during the German occupation of his native Holland. The book went on to be a bestseller, with proceeds helping to pay for a statue in the Netherlands that honoured those who helped hide Jewish Holocaust survivors.

Van Zuiden was eventually found unfit to stand trial. A psychiatrist testified that while in custody the elderly man had thought that corrections and medical staff were Nazis, or hiding in the war with him. The doctor also testified that he expected van Zuiden’s dementia to remain the same or get progressively worse.

Dementia is one of the greatest societal challenges of the 21st century. An estimated 50 million people worldwide are living with the condition. The global dementia population is expected to reach 131.5 million by 2050. In Canada, it is estimated that 564,000 people have dementia and that 25,000 new cases are diagnosed every year. If nothing changes, there could be nearly one million Canadians with the condition in 15 years. Among Indigenous populations specifically, dementia rates are reported to be 34 per cent higher than the non-Indigenous population.

People with dementia rarely come into conflict with the criminal law. But given these numbers, it is expected that more members of this vulnerable group will be present at all stages of the criminal justice system — from initial police contact in the community to fitness to stand trial assessments in the courts to aging inmates in correctional environments.

Yet this vulnerable population’s needs remain unmet. Indeed, in a recent canvass of dementia advocacy organizations, the Dementia Justice Society of Canada consistently heard that the criminal justice system is ill-equipped to manage people with dementia.

Once in the justice system, defendants with dementia can face several problems. A criminal charge can result in many collateral consequences. One fundamental post-charge challenge is securing safe and appropriate housing, whether in assisted living, a nursing home, or in the larger community. While there are many factors at play, the problem is exacerbated when care homes are reluctant, or outright refuse, to admit someone with a criminal history.

One year after being charged with second-degree murder, 86-year-old van Zuiden remained in a secure psychiatry facility. At first his friends could only see him by sitting on the opposite side of a glass pane; they had to use a phone to talk. Later he was permitted to have visitors in the dining room. He was eventually authorized by the Alberta Review Board to live in secure care home, but as of November 2017, he remained on the waiting list.

Van Zuiden is not alone. Across the country, criminal defendants with dementia suffer housing vulnerability. Yet there has been little co-ordinated action to remedy this state of affairs. Notably, in a review of provincial, national and international dementia strategies, Dementia Justice found that criminal justice is largely overlooked, and often not mentioned at all.

As such, Dementia Justice is working to strengthen the housing security of criminal defendants with dementia. The organization’s first major project, funded by The Law Foundation of British Columbia, will identify gaps in the provincial legal and policy framework that can lead to housing vulnerability. The final report, expected to be published by early next year, will also look for promising approaches in other Canadian jurisdictions and make recommendations for improving the housing security of this small but vulnerable population.

Dementia is not an inevitable part of aging. But it is something that many of us will get: one in 11 Canadians over age 65, and one in three over age 80, has the disease. It also afflicts about 16,000 Canadians under age 65. Few will clash with the criminal law, but when they do, we must ensure that the response of our justice and elder care systems is fair and humane.