Euplio Cusano, a long-term care resident with a decades-long brain injury, spent months in jail awaiting a bail hearing, only to be fatally assaulted by another inmate in October 2024. His tragic time in custody began after he was arrested following an altercation with fellow residents outside their care home seven months earlier.
The 69-year-old’s story, reported in the Toronto Star, exposes a dangerous flaw in the criminal justice system: vulnerable seniors with cognitive impairments risk languishing in custody because there are few appropriate alternatives to manage them.
Delays in bail hearings and a lack of specialized care options not only weaken public confidence in the administration of justice but can also turn into a life-threatening ordeal.
Cusano’s case is not unique and will become even more frequent as the population ages. There are no standardized statistics collected, but we know anecdotally that across Canada, seniors with dementia and other cognitive impairments are sometimes arrested after physical altercations in care homes, private dwellings or while out in the community, and then sent to jail to await bail. They often wait weeks and even months in custody because no long-term care homes will accept them.
Others are sent to forensic hospitals, where they undergo assessments to determine whether they are fit to stand trial. These institutional settings are often a poor substitute for what the person truly needs: a stable, supportive care home environment.
While most people with cognitive impairment are non-violent, symptoms such as behavioural disinhibition, loss of social judgment, impulsivity and impaired moral reasoning can bring them into conflict with the criminal law. Their stories are a sobering reminder that the justice system often fails the most vulnerable: accused seniors with cognitive impairments are essentially punished for conditions beyond their control because the system lacks safe places to shelter them.
Rapid access behavioural support units (BSU) offer a practical solution to incarceration. These units provide specialized care for people whose cognitive impairments cause behavioural disturbances that cannot be managed in a regular care home setting. Staff there have the time and training to manage agitation, aggression and confusion in a safe, controlled and humane environment. A criminal charge does not disqualify someone from placement.
Expanding access to specialized units would allow courts to release seniors on bail instead of detaining them in an unfamiliar, unpredictable and chaotic environment that can further exacerbate confusion, provoke agitation and endanger the lives of seniors, as Cusano’s death tragically demonstrated. Providing alternative placements is not merely compassionate; it is a matter of justice. It would also reduce custodial overpopulation, relieve the strain on limited staff resources, and allow other cases to move more quickly through the system, which benefits everyone.
Ontario is on the right track, having announced funding in 2024 for 51 new BSU specialized beds in Brampton, Etobicoke and Timmins, bringing the total to 398 beds in care homes across the province. The government also boosted funding for all 21 BSUs in the province and continues to invest in mobile behavioural support teams that integrate specialized services into long-term care homes.
Equally critical is ensuring that lawyers representing seniors with cognitive impairments have the training and support to advocate effectively for their clients. While the legal profession has made strides in improving its understanding of cognitive impairments among accused seniors, continued training and education remain essential to ensure lawyers are equipped to handle these cases with skill and sensitivity.
Navigating bail decisions for vulnerable seniors requires not only an understanding of criminal law and procedure but also being attuned to cognitive impairments and awareness of their clients’ medical needs, care options and community supports. Well-prepared lawyers, working closely with social workers, health-care providers and other professionals, can help identify appropriate housing or specialized care placements, allowing courts to grant bail safely and reduce unnecessary and dangerous stays in custody.
What happened to Cusano reveals the consequences of a system unprepared for the vulnerabilities of an aging population. Justice demands that we ensure the safety and dignity of those least able to defend themselves.
Excellent and very timely conversation without a doubt, thank you for addressing this important topic. This may be of interest to you as I recently read that this study found that ageism itself may contribute to a deterioration in cognitive functioning or impairment:
“Cognitive impairment is a worldwide epidemic. Informed by NIA’s Health Disparities Framework, this study investigated interpersonal, behavioral, and sociocultural risk and protective factors associated with cognitive health trajectories. Mixed models examined factors associated with cognitive health with data from the Health and Retirement Study among Whites, Blacks, and Hispanics (2008-2014, N=4,511). A majority of respondents who experienced everyday discrimination attributed it to ageism among this racially and ethnically diverse sample. Stratified mixed models of everyday discrimination by attribution (racism or ageism) revealed worse cognitive functioning. Major lifetime discrimination was not statistically associated with cognitive functioning. Economic factors (education, income, assets) and religious activity protected cognitive functioning and were particularly salient for Blacks and Hispanics. Strategies that bolster individual resilience as well as social policies that address discrimination and structural inequities will likely reduce health disparities and improve population health.”
Source: “Discrimination and Protective Factors to Cognitive Health: Testing NIA’s Health Disparities Framework” (2020)
https://academic.oup.com/innovateage/article/4/Supplement_1/672/6037857?searchresult=1