Brief to Sudbury City Council

Submitted by the Committee to Remember Kimberly Rogers
And by the Sudbury Community Legal Clinic

February 21, 2002

Executive Summary
Introduction
Background Facts
Submission
Recommendations
Appendix 1
Appendix 2

Introduction:

The tragic death of Kimberly Rogers has inspired a group of concerned citizens of the City of Greater Sudbury to ask City Council to do what it can to prevent another similar tragedy.

In the recent past the Regulations under the Ontario Works Act have been amended to add new penalties for welfare fraud.

When a person is convicted of fraud in relation to the receipt of public assistance benefits for a period preceding April 1, 2000, that person is automatically cut off from receiving any benefits for 3 months on a first conviction, and 6 months on a subsequent conviction. (See Appendix 1)

When a person is convicted of fraud in relation to the receipt of public assistance benefits for a period in whole or in part after April 1, 2000, that person is automatically cut off from receiving any benefits for life. (See Appendix 1)

Background Facts

1. In October of 2000 the Health and Social Services Committee of the Regional Municipality of Sudbury "resolved that a letter be sent to the Honourable John Baird…requesting that the Zero Tolerance legislation be amended so that the penalty for welfare fraud would better reflect the severity of the crime."

2. At least ten other municipalities across the province passed resolutions or made recommendations between February of 2000 and May of 2001 condemning the legislation. (See attached Appendix 2 for summary).

3. Kimberly Rogers had received social assistance benefits from Ontario Works Sudbury until April 30, 2001. Her benefits were automatically cancelled on that date pursuant to the Regulations because she had pled guilty to welfare fraud on April 25, 2001.

4. Ms Rogers commenced a constitutional challenge of the Regulations that had resulted in the automatic suspension of her benefits as being in violation of section 7, 12 and 15 of the Canadian Charter of Rights and Freedoms. In her Court challenge she was attempting to have the Regulations declared unconstitutional and of no force. She was asking the court to reinstate her benefits in the interim.

5. Ms Rogers was five months pregnant at the time. Because of the cancellation of her benefits, she was destitute and had no means of support. She faced a number of serious consequences. In jeopardy were her shelter, her health and the healthy development of the child she was carrying.

6. Prior to being cut-off social assistance benefits, she was receiving an Ontario Works allowance in the gross amount of $520, being the maximum allowance for a single person. Her entitlement consisted of $325 shelter allowance plus $195 basic allowance for all other needs. She also received a drug card that paid for prescribed medications.

7. Between 1996 and 1999 Ms Rogers had attended college and had received Ontario and Canada student loans. She used this money to pay tuition and to support herself during this time. When a student successfully completes their college program, normally part of the student loans are then forgiven.

8. While at college, Ms Rogers also collected social assistance. She did not report her student loans to the Ontario Works office. Under public assistance regulations, that part of student loan funds which is not provided for tuition, compulsory fees, books, instructional supplies and prescribed transportation costs is deemed to be "income" and is deducted from social assistance entitlement. Through OSAP, Ms Rogers also received funds called a "living allowance". The living allowance is considered "income" and is deducted from social assistance entitlement.

9. When the living allowance portion of the student loans was discovered, Ontario Works Sudbury declared an overpayment of $13,468.31 and cancelled her benefits. Ms Rogers' OSAP entitlement was also cancelled and she lost any loan forgiveness to which she might otherwise have been entitled. As a result, she had to repay the full amount of student loans that she received. She managed to stay in school and graduated from the Social Services program at Cambrian College in April 2000 as one of the top students in her class.

10. Ontario Works Sudbury referred the matter to the police and Ms Rogers was charged with fraud over $5,000. She admitted to what she had done and pleaded guilty. She was sentenced to six months house arrest and an additional 18 months probation. A restitution order of $13, 372.67 was also made against her in favour of The City of Greater Sudbury Ontario Works.

11. It is clear from the transcript of the April plea of guilt that the Judge, the lawyer for the Crown and the defence lawyer knew that Ms Rogers, in her second trimester of pregnancy, would be cut off benefits and would have absolutely no means of subsistence.

12. For years, Ms Rogers had been suffering from several medical conditions for which medication was prescribed.

13. In an Affidavit in support of Ms Rogers' constitutional challenge, her family doctor outlined that she was in need of adequate food and shelter for her own sake and for the sake of her fetus. He pointed out that pregnant women need more calories daily than non-pregnant women do and that they need particular nutrients to prevent damage to their health and to the health of the fetus. He stated that lack of proper food and nutrition might result in irreversible damage to the skeletal, neural and visual development of the fetus.

14. Ms Rogers had no other source of income other than social assistance. She had no savings. As a result of the cancellation of her assistance and the house arrest sentence, she had absolutely no means to support herself.

15. Her rent was $450 per month and she was in arrears. She was unable to pay her phone bill. Her landlord had agreed not to seek eviction and to accept reduced rent temporarily, but only on the condition that she re-pay the difference in the future. Her regular rent was $125 more than the maximum shelter allowance provided by Ontario Works. Ms Rogers could not afford to eat properly, even with the use of food banks.

16. The Sudbury Public Health Report of June 2001 entitled "The Cost of Eating Well within Manitoulin and Sudbury by District" states that in the City of Greater Sudbury, a woman 25-49 years of age, in her second and third trimester of pregnancy, needs $30.15 per week to eat healthily. (See attached Appendix 3)

17. Ontario Works used to provide a pregnancy diet supplement in the amount of $37 per month. After the province discontinued this benefit, Ontario Works Sudbury implemented a pregnancy diet supplement of $43 per month. Unfortunately, although Ms Rogers would have qualified for the pregnancy diet supplement when her benefits were reinstated by Court order, Ontario Works did not advise her of the existence of the supplement. As a result, Ms Rogers did not receive any extra assistance to pay for food, although it was apparent in the court documents served on Ontario Works that she was clearly in need of this assistance.

18. The drug card which is provided to Ontario Works recipients was cancelled when Ms Rogers' benefits were terminated. She was in debt to her pharmacist who filled her prescription on credit following her doctor's intervention. She did not have money to pay for future medication.

19. The City of Greater Sudbury issued a special municipal drug card to Ms Rogers after she launched her constitutional challenge. The City repaid the debt to the pharmacist and undertook to provide coverage for Ms Rogers' medication costs pending the three-month suspension period.

20. Ontario Works Sudbury did not actively participate in the case and instead chose to take no side.

21. The Elizabeth Fry Society and Better Beginnings, Better Futures were active in helping Ms Rogers. Unfortunately, even with their involvement and the reinstatement of her benefits, Ms Rogers was still in dire straits. She could not access nor could she afford fresh fruits, vegetables or meat on a regular basis. The mandates and limited funding of the many charitable organizations in Sudbury could not address all of her needs.

22. The Superior Court of Justice rendered a decision on May 31, 2001 granting Ms Rogers a constitutional exemption from the operation of the Ontario Works Regulation under challenge and reinstating her benefits. (See Appendix 4) In her Reasons for Decision Justice Gloria Epstein wrote:

"In the unique circumstances of this case, if [Ms Rogers] is exposed to the full three months suspension of her benefits, a member of our community carrying an unborn child may well be homeless and deprived of basic sustenance. Such a situation would jeopardize the health of Ms Rogers and the fetus, thereby adversely affecting not only mother and child but also the public - its dignity, its human rights commitments and its health care resources. For many reasons, there is overwhelming public interest in protecting a pregnant woman in our community from being destitute."

23. Early in June of 2001, Ontario Works Sudbury issued benefits to Ms Rogers, but continued to reduce her monthly entitlement to collect the overpayment by $52, leaving her with $468 per month. After Ms Rogers paid her rent, she had $18 left to cover all her other monthly expenses, including food, transportation costs and telephone.

24. The legislation provides discretion to the Administrator of Ontario Works and his staff to reduce the rate of collection of an overpayment in cases of financial hardship. But for the three month period after her conviction, Ontario Works Sudbury continued to collect the overpayment at a rate of 10% off Ms Rogers' benefits.

25. The Court will not have an opportunity to rule on Ms Rogers' constitutional challenge because she died in early August, alone in her apartment. Her unborn child did not survive.

26. Ontario Works Sudbury reimbursed Ms Rogers' family for the cost of a very modest burial. This was a discretionary benefit.

27. A Coroner's Inquest has been called and it will be the function of the Inquest to review the circumstances of Ms Rogers' death. It is hoped that the Inquest will address the question of what contribution, if any, the provincial public assistance legislation and policies had in these tragic circumstances.

Submission:

It is incumbent on City Council to take consideration of the many issues that have been raised and immediately take steps to make changes pending the outcome of the Inquest with a view to preventing any other similar tragedies. If this happened to someone facing a fraud conviction and a three-month suspension, imagine how profound the effects of a lifetime ban would be.

Convicted murderers and others convicted of violent crimes are guaranteed food, shelter, clothing and medical attention for the duration of their sentence. The Ontario Works Regulations add penalties to criminal offences that other convicted persons do not face.

Canada is a State Party to the International Covenant on Economic, Social and Cultural Rights, entered into more than 25 years ago.

Article 9 of this International Covenant states:

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 10 states:

Special protection should be accorded to mothers during a reasonable period before and after childbirth.

Article 11 states:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Article 12 states:

(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
          (a) The provision…for the healthy development of the child;

Canada also signed the Universal Declaration of Human Rights.

Article 5 of that Declaration states:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The Canadian Charter of Rights and Freedoms echoes this by stating in Section 12 that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

Article 25 of the Universal Declaration of Human Rights reads as follows:

(1) Everyone has the right to a standard of living adequate for the health and well being of himself and of his family including food, clothing, housing and medical care and necessary social services…

(2) Motherhood and childhood are entitled to special care and assistance…

Lastly, Section 7 of the Canadian Charter of Rights and Freedoms guarantees that

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Given the Ontario Works regulations that ban social assistance benefits for 3 and 6 months, and for life, how are the men, women and their children affected by this law supposed to survive? What are they to eat, and where will they find it? Where are they to live? How are they to obtain prescribed medication? How are they to provide clothing for themselves and their children?

Having reviewed the tragic details of Ms Rogers' case, we urge the City of Greater Sudbury to be at the forefront of reform on this issue. We present the following recommendations for consideration by Members of Council:

Recommendations:

I. That the City of Greater Sudbury make representations to the Provincial Government and to the Association of Ontario Municipalities stating that the Regulations providing for automatic suspension in cases of fraud be rescinded because:

(i) they place men, women and children in peril;

(ii) they are contrary to International and Canadian Charter rights;

(iii) they lay a burden on community charitable resources that most are in no way equipped to provide; and

(iv) it is impossible to implement these Regulations without causing undue harm and danger to the health and lives of those affected.

II. That the City of Greater Sudbury direct Ontario Works Sudbury not to refer any other matters to the police in the period up until the Coroner's Inquest into the death of Kimberly Rogers.

III. That, in the alternative, Ontario Works Sudbury implement a process that allows caseworkers to take extenuating circumstances into consideration when deciding whether or not to refer matters to the police.

IV. That if Ontario Works Sudbury chooses to continue to pursue fraud charges, and that if as a result the benefits of a Sudbury recipient of Ontario Works are cancelled, the City of Greater Sudbury continue to pay benefits to that recipient and his or her family from municipal funds.

V. That Ontario Works Sudbury be required to advise pregnant Ontario Works recipients of the pregnancy diet supplement currently available.

VI. That the Committee for Health and Social Services be re-instituted, include community representatives and be open to hearing community views on cases in those areas where difficulties arise.

Molly Hancock
Committee to Remember Kimberly Rogers

Grace Kurke
Sudbury Community Legal Clinic

Appendix 1

Section 36 of Regulation 134/98 (as amended) states the following:

(1) An administrator shall refuse to provide assistance to an applicant or cancel or reduce the assistance provided to a recipient if a member of the benefit unit has been convicted of a crime or an offence in relation to the receipt of,

(a) assistance under the Ontario Works Act, 1997;
(a.1) income support under the Ontario Disability Support Program Act, 1997; (eff. June 1, 1998)
(b) benefits under the Family Benefits Act; or
(c) assistance under the General Welfare Assistance Act.

(2) If the recipient is a single person, the assistance shall be cancelled; if the recipient's benefit unit includes a dependent, the assistance shall be reduced by an amount equal to the budgetary requirements and benefits for the convicted person.

(3) Assistance shall be refused, cancelled or reduced under this section,

(a) for three months if it is a first conviction;
(b) for six months with respect to any subsequent convictions for that person.

Section 36 of Regulation 134/98 (as amended by O. Reg. 48/00, eff. April 1, 2000) states the following:

(1) An administrator shall refuse to provide assistance to an applicant, and shall cancel the assistance provided to a recipient, if the applicant or recipient is a single person who has been convicted of an offence described in subsection (5) that was committed in whole or in part on or after April 1, 2000. (O. Reg. 48/00, eff. April 1, 2000)

(2) An administrator shall refuse to include the amount determined under subsection (4) in the assistance to be provided to an applicant, and shall reduce the assistance provided to a recipient by the amount determined under subsection (4), if, (O. Reg. 48/00, eff. April 1, 2000)

(a) the benefit unit of the applicant or recipient includes one or more dependants; and (O. Reg. 48/00, eff. April 1, 2000)
(b) one or more of the members of the benefit unit have been convicted of an offence described in subsection (5) that was committed in whole or in part on or after April 1, 2000. (O. Reg. 48/00, eff. April 1, 2000)

(3) Subsection (2) applies if the applicant or recipient is otherwise eligible for assistance. (O. Reg. 48/00, eff. April 1, 2000)

(4) Subsection (2) referred to in subsection (2) is an amount equal to the sum of the budgetary requirements and benefits of each member of the benefit unit who has been convicted of an offence described in subsection (5) that was committed in whole or in part on or after April 1, 2000. (O. Reg. 48/00, eff. April 1, 2000)

(5) This section and section 36.1 apply to an offence, whether under Ontario or federal legislation, in relation to the receipt of , (O. Reg. 48/00, eff. April 1, 2000)

(a) assistance under the Act; (O. Reg. 48/00, eff. April 1, 2000)
(b) income support under the Ontario Disability Support Program Act, 1997; (O. Reg. 48/00, eff. April 1, 2000)
(c) benefits under the Family Benefits Act; or (O. Reg. 48/00, eff. April 1, 2000)
(d) assistance under the General Welfare Assistance Act, which was, before its repeal, the Revised Statutes of Ontario, 1990, chapter G. 6, as amended. (O. Reg. 48/00, eff. April 1, 2000)

Section 36.1

(1) Section 36, as it read immediately before April 1, 2000, continues to apply in respect of convictions for offences described in subsection 36(5) that were committed in whole before that day. (O. Reg. 48/00, eff. April 1, 2000)

For greater certainty, where section 36, as it read immediately before April 1, 2000, applies in respect of convictions for offences that were committed in whole before that day and where section 36, as it reads on or after April 1, 2000, applies in respect of convictions for offences that were committed in whole or in part on or after that day, nothing prevents both provisions from being applied to a benefit unit, whether at different times or at the same time. (O. Reg. 48/00, eff. April 1, 2000)

Appendix 2

MUNICIPAL RESPONSES TO ZERO TOLERANCE