|
ENDORSEMENT
[1] The Applicant Coalition, supported by the
Intervener, The Ontario Social Safety Network and Steering Committee
on Social Assistance seeks judicial review of the evidentiary rulings
of Coroner, Dr. David Eden made on November 8, 2002. Dr. Eden is
presiding over the inquest in the death of Kimberley Rogers who
was found dead in her apartment in Sudbury on August 9, 2001. At
the time of her death, Ms Rogers was 8 months pregnant and confined
to her residence following a conviction for welfare fraud. She pleaded
guilty to charges of defrauding Ontario Works of a sum of money
exceeding $5000 on April 25, 2001.
[2] This
application was heard on an urgent basis by a full panel of the
Court.
[3] Justice
G. Rodgers imposed a conditional sentence of 6 months followed by
a period of
18 months probation after hearing the joint submission of the Crown
and Ms Rogers' defence counsel. Ms Rogers was ordered to be at her
place of residence at all times, except for medical purposes, except
for religious purposes, except for shopping for the necessities
of life, groceries, clothing for her and her unborn child; except
to report to her supervisor, and for other purposes that may be
permitted by her supervisor. With respect to shopping for the necessities
of life, she was permitted to leave her residence on Wednesdays
from 9:00 a.m. until noon.
[4] As
result of her conviction. Ms Rogers' welfare payments were immediately
suspended for 3 months pursuant to the regulation under the Ontario
Works Act, S.O. 1997, c. 25, Schedule B, (the "Regulations")
as amended. After Ms Rogers was charged, the Regulations were amended
to provide for a lifetime suspension of benefits upon conviction.
[5] At
the time of her conviction, Ms Rogers lost her entitlement to the
drug card provided to
welfare recipients. Her local pharmacist provided medication on
an interim basis following the
intervention of the treating physician. On May 17) 2001, the City
of Sudbury subsequently
provided drug coverage on a retroactive basis.
[6] In
May 2001, Ms Rogers brought a constitutional challenge to the automatic
suspension
of welfare benefits. An interim injunction was granted by Justice
Epstein on May 31, 2001,
declaring Ms Rogers constitutionally exempt from the application
of the Regulation and ordering
her benefits reinstated retroactive to April 30, 2001, pending the
determination of the
constitutional challenge. Ms Rogers benefits were reinstated. Her
monthly entitlement was
reduced by $52 as part of the restitution order imposed as part
of her conditional sentence. This
left her with $468 per month to meet her living expenses including
her rent. As a result of Ms
Rogers' death, the constitutional challenge did not proceed.
Dr. Eden's Ruling on Standing
[7]
The inquest into Ms Rogers death was called on March 25, 2002. An
application for
standing at the inquest was brought by the Canadian Association
of Elizabeth Fry Societies, the
Women's Legal Education and Action Fund, the National Association
of Women and the Law
and the National Anti-Poverty Organization (the Coalition) on September
19, 2002. In its
application the Coalition relied on its expertise in the equality
rights of women and persons on
social assistance. There was also a joint application on a public
interest basis for standing from
the Ontario Social Safety Network and the Steering Committee on
Social Assistance (OSSN).
Dr. Eden released his ruling on standing on September 25,2002. Inasmuch
as the content of his
ruling forms the background to what we must decide, we reproduce
its relevant parts below:
I have listened
carefully to the arguments and submissions of all counsel, and
read the materials submitted.
While I may have consulted Coroner's Counsel for legal advice,
this ruling was entirely written by me.
In making my ruling about standing, I have considered the law
and custom concerning inquests, and balanced the very sincere
and deeply felt aims of the applicants, against the incremental
value in possible changes to the jury's verdict, the additional
procedural complexity and length of a hearing associated with
an increasing number of parties, and the uniqueness of the perspectives
brought by each applicant I have also taken into account that
this inquest is not a Royal Commission into poverty or welfare,
but is an examination of the specific circumstances surrounding
the death of Kimberley Rogers; and that applications for standing
must be based on the facts that gave rise to this inquest. F or
each party granted standing, the interest of the party under Section
41 has peen explicitly specified, and parties must limit their
cross-examination and calling of evidence to their respective
are~ of interest as set out in this ruling.
Joint Application from the Ontario Safety Network and the
Steering Committee
for Social Assistance
The Ontario Social Safety Network (OSSN) and the Steering Committee
for Social Assistance (SCSA), acting jointly and represented by
Ms. Jackie Chic, have applied for standing on a public interest
basis.
The OSSN is described as a province-wide organization in which
low-income persons form a substantial proportion of membership,
and which acts in an advocacy and advisory role. The organization's
goal is the eradication of poverty.
The SCSA is composed of social assistance caseworkers from Ontario
community legal clinics, and advocates on behalf of social assistance
recipients.
After hearing
the application and reviewing the written submission, I find that
the Ontario Social Safety Network and the Steering Committee for
Social Assistance, acting jointly, meet the legal test for public
interest standing at this inquest and have a substantial and direct
interest in the inquest by virtue of representing a group which
shares a legal identity with the deceased and will be acutely
affected by jury recommendations, and which has a unique or almost
unique expertise that will offer the jury a valuable perspective
that otherwise would not have come forward, within the following
specific area of interest:
"The development
of recommendations regarding welfare legislation and administration,
as it applies to persons in circumstances similar to those of
Ms. Rogers, excluding the process for criminal prosecutions
related to welfare legislation."
While this
party's participation in the inquest will therefore primarily
be in the
preventive phase of the inquest, this party may take party in
the investigative
phase, subject to the following restriction: this party's cross-examination
during
the investigative phase will be limited to evidence elicited solely
to act as a
foundation for development of recommendations within its area
of interest, and
without which the jury could not properly assess the proposed
recommendations.
This party had applied for standing in additional areas of interest.
The application
for standing met the legal test for standing only in the above-specified
ar~ and
the application for standing in other areas is denied.
Application
from the "CAEFS Coalition": Canadian Association of
Elizabeth Fry
Societies, with the Women's Legal Education and Assistance Fund,
the National
Association for Women and the Law, and the National Anti-Poverty
Organization
The CAEFS Coalition, represented by Ms. Jennifer Scott, has applied
for standing
at this hearing.
The Canadian Association of Elizabeth Fry Societies (CAEFS) is
a national association whose member agencies provide services
to women and girls in the criminal justice system, with particular
involvement in sentences served in the community'- It is well
established and, in addition to its service provision, has advocated
for its clients, and acted as a public intervenor at the Supreme
Court level.
The Women's Legal Education and Assistance Fund (LEAF) has been
in existence since 1985. It is a national, federally incorporated,
not-far-profit organization which is involved in issues, related
to the Charter rights of women and girls, including the impact
of criminal justice procedures, and has also acted as a public
interest intervenor in court hearings, including the Supreme Court.
The National
Association of Women and the Law (NAWL) is a national organization,
founded in 1974, whose goal is to advance women's equality through
law reform advocacy, research and education. It also has intervened
at the Supreme Court Level.
The National
Anti-Poverty Organization (NAPO) is a national organization. representing
the interests of low-income Canadians. A board, all members of
which have personal experience with living in poverty guides it.
After hearing
the application and reviewing the written submissions, I find
that the CAEFS Coalition meets the legal test for public interest
standing at this inquest and have a substantial and direct interest
in the inquest by virtue of representing a group which shares
a legal identity with the deceased and will be acutely affected
by jury recommendations, and which has a unique or almost unique
expertise that will offer the jury a valuable perspective that
otherwise would not have come forward, within the following specific
area of interest:
"The
development of recommendations regarding: the prosecution of
criminal offences, and the management of sentences for criminal
offences to be served in the community, applicable to persons
in circumstances similar to those of Ms. Rogers."
While this
party's participation in the inquest will therefore primarily
be in the preventive phase of the inquest, this patty may take
part in the investigative phase, subject to the following restriction:
this party's cross-examination during the investigative phase
will be limited to evidence elicited solely to act as a formation
for development of recommendations within its area of interest
and without which the jury could not properly assess the proposed
recommendations.
This party
had applied for standing in additional areas of interest. The
application for standing met the legal test for standing only
in the above-specified area, and the application for standing
in other areas is denied.
In addition, this application is granted for the party as currently
constituted. If the constituent organizations ceased to act jointly,
this party's standing will expire immediately, and new applications
for standing would be required if the organizations wished to
continue participation in the inquest.
[8]
Dr. Eden's ruling on standing is not in issue in this application.
For purposes of what we
have to decide, we note that Dr. Eden observed that the Applicant
Coalition had a "substantial and direct interest" in the inquest..
..by virtue of... (sharing) a legal identity with the deceased and
will be acutely affected by jury recommendations, and which has
a unique or almost unique expertise that will offer the jury a valuable
perspective that otherwise would not have come forward...".
Dr. Eden's
Evidentiary Ruling
[9]
The inquest commenced on October 25, 2002. Evidence surrounding
all of the relevant factual circumstances of Ms Rogers life was
heard from October 15 to November 8, 2002. [During
submissions this was referred to as the investigative stage of the
inquest. There is no biforcarion of the stages of an inquest in
the Coroner's Act.] Expert evidence, provided
by groups granted public interest standing, is generally only heard
at the preventative stage. On November 7, 2002, Dr. Eden heard submissions
from the intervenors on the expert evidence they intended to call
during the preventive stage. The Coalition proposed to call Kim
Pate and Bruce Porter as expert witnesses and tendered Will Says
outlining their anticipated evidence. On November 8, 2002, Dr. Eden
released his rulings. For our purposes, the relevant parts are:
All of the
proposed witnesses may be called, but I have had to limit the
areas of
evidence of some witnesses, in order to ensure that the evidence
was based on
facts before the inquest and otherwise admissible.
Some initial comments before I provide rulings on each proposed
witness:
First, this ruling concerns areas in which the witnesses may testify,
and is subject to qualification of each witness in the proposed
areas.
Second, the approval of an area of evidence through a witness
is not licence to
explore areas outside the factual basis of this inquest or my
previous evidentiary
rulings.
Third, where a witness will be presenting evidence to the jury
concerning persons in circumstances similar to those of Ms. Rogers,
such as welfare recipients, I expect such evidence to be presented
in a clear, meaningful statistical format. preferably from a peer-reviewed
academic journal or an official source, which is made available
to all parties and myself at the same time as the more detailed
will-say. Anecdotal evidence is to be discouraged.
Fourth, Ms. Scott has asked to broaden the scope of the inquest
to include systemic discrimination against women. It is clear
in case law that a bald assertion by a party that some issue exists
does not meet the legal test for admissibility. The party must
establish, from the evidence heard, adequate grounds to explore
the issue, and, after hearing arguments and submission, I do not
find that such foundation has been established As with many issues
that Ms. Scott and other counsel have asked to include in the
inquest. I do not deny that the issue exists and may well merit
public discussion and scrutiny. but there is no factual foundation
for exploration of the issue at this inquest.
Fifth, it would be improper for the jury to make recommendations
to judges concerning sentencing practices, which are a matter
of case law. and outside the jurisdiction of the coroner and inquest
jury. It would not be improper for the jury to comment on the
information that the court should consider before passing sentence,
provided that the principles of criminal justice are not violated.
Sixth. Ms. McArdle questioned whether a witness called by a party
with standing
could introduce evidence not previously heard. In my view, a witness
called by a
party with standing may introduce additional evidence, subject
to prior notice to
other parties and the other roles of admissibility.
Finally, nothing in this ruling changes any previous evidentiary
rulings I have made.
[lO] Dr.
Eden proceeded then to list detailed rulings on the will-say statements
of proposed
witnesses. The witnesses to be called by the applicants were Kim
Pate and Bruce Porter. Dr. Eden made rulings initially on summaries
of the evidence which he later found had been superceded. On being
told that new updated summaries regarding Pate and Porter had been
filed he replaced his prior detailed ruling on the out dated summaries
with the ruling on the updated will-say statements. Dr. Eden continued:
Ms. Tie has
advised me that, in my ruling of this morning, I referred to a
document that had since been updated. I do not appear to have
received the update. This ruling takes into account the updated
document, which will label Appendix F-l.
This ruling replaces the section of my ruling beginning with the
word "Kim Pate"
and ending with the sentence "Item 6 is admissible. with
the above restrictions".
Kim Pate
Items I to
3 are admissible through this witness.
Item 4 is not relevant to the scope of an inquest, and is not
admissible.
Item 5 is not relevant as written, as there has been no evidence
that the fraud charge was laid in order to address a social issue;
the evidence is that there were grounds to believe that an offence
had occurred under the Criminal Code. However, the reference to
the effect of a criminal sentence on a person with a preexisting
mental illness is admissible.
Items 6-8 are admissible.
Bruce Porter
Item 1 is admissible. with the exception of references to the
Income Tax Act, for
the reasons stated with respect to this issue in my original ruling.
There is no
basis in the evidence for Item 2~ for the reasons stated in my
original ruling.
Items 3 and 4 are not within the scope of an inquest, for the
reasons set out in my
original ruling.
Item 5 is admissible.
Appendix
F-l
Outline of Anticipated Expert Evidence Called by the CAEFS'
Coalition
It is anticipated
that Ms. Pate and Mr. Porter will speak to two of the issues identified
by the Coroner to be addressed at this inquest.
The fact that Kimberly Rogers was a welfare recipient who had
been charged with and convicted of welfare fraud and as a result,
had her welfare payments terminated, and was subject to an overpayment
deduction. The fact that Kimberly Rogers was ser\ling a conditional
sentence, which included house arrest and a restitution order.
Ms. Kim Pate
It is anticipated that Ms. Pate's evidence will cover the following
areas, however, the evidence may change once all of the factual
evidence has been adduced at the inquest.
|
(1)
|
An
overview of the use of conditional sentences (i.e. house arrest),
their history and purpose. Conditional sentences were introduced
to reduce the use and cost of incarceration for offences and
to provide for more humane sentences, served in the community.
They are increasingly being used in welfare fraud cases. |
| |
|
|
(2)
|
How
conditional sentences have been used in the sentencing of
men and women and the differential impact. In situations
where gender and economic disparity converge, conditional
sentences exacerbate and further entrench the state of oppression
for women. For example, conditions of house arrest for men
frequently include the right to leave the home for employment,
thereby reducing the confining and isolating nature of the
house arrest. This then may not be included for women who
are less likely than men to be employed.
Women
prisoners are the fastest growing prison population worldwide.
Despite this trend, progressive initiatives towards deinstitutionalization
(i.e. house arrest) have been undem1ined because of the
erosion of community based social support" services. This
is particularly stark in the case of welfare hurl, where
the convicted person may be ineligible for provincially
funded social services. As a result, women may be confined
without the necessary support services being provided to
them.
|
| |
|
|
(4)
|
The
failure of the criminal justice system in cases of welfare
fraud to build capacity and promote self-sufficiency for women
though the sentencing process. For instance, women like Kim
Rogers, who try to upgrade their education in order to enhance
their ability to exit the welfare rolls, are effectively prevented
and/or punished for their efforts.
The use of the criminal justice system to address social problems
and the impact of this trend on people who are poor, particularly
women with mental health issues. For example. the failure
of the criminal justice system in cases of welfare fraud,
to meet the needs of women with mental health issues results,
not only in the creation of new mental health issues such
as depression, but also the increased likelihood of exacerbation
of pre-existing mental health issues. |
| |
|
|
(6)
|
Because
of the insufficiency of social assistance to cover basic living
expenses, recipients of benefits often have to resort to other
means in order to pay the rent or feed themselves and/or their
children. There is an increasing trend to treat as criminal
such survival strategies of poor people as, the sharing of
accommodation, the sale of ftu1liture, the acceptance of gifts
or loans of money and/or goods, the receipt of undeclared
employment income, et cetera. |
| |
|
|
(7)
|
In
light of the foregoing, the appropriateness of non-crim1nalizing
treatment of welfare overpayment by the criminal and social
justice systems will be the focus of this witness' evidence. |
| |
|
| (8) |
How these general principles apply to Kimberly Rogers and
her conviction for welfare fraud and subsequent house arrest
|
Mr. Bruce Porter
It is anticipated that Mr. Porter's evidence will cover the following
areas:
|
(1)
|
Mr. Porter will review statistics obtained in a special tabulation
from the Centre for Justice Statistics, as well as information
from other sources, showing patterns in referrals to police,
charging, sentencing and the use of diversion under the Criminal
Code, the Income Tax Act and the Employment Insurance Act
for comparable types of offences, with a particular focus
on the frequency and effect of conditional sentencing. |
| |
|
|
(2)
|
Mr.
Porter will describe the nature of discriminatory prejudice
and stereotypes applied to people relying On social assistance
and how these influence the treatment of welfare fraud,
including decisions to refer to police, charging and sentencing.
Mr.
Porter will review the evolving recognition of people on
social assistance in human rights legislation and under
the Canadian Charter of Rights and Freedoms as a group subject
to discrimination and stereotype, requiring protection from
discrimination. He win also provide an overview of other
human rights protections relevant to Kimberly Rogers, such
as discrimination because of mental and physical disability
and sex (including pregnancy). He will explain that such
protection requires that special measures and appropriate
care be taken to ensure that needs related to poverty, disability,
sex and pregnancy, are taken into account and addressed
in policies and in the exercise of discretion relating to
investigations, diversion and referrals to police.
|
| |
|
|
(4)
|
Mr.
Porter will explain in accessible terms the rulings of the
Supreme Court of Canada in which the Court found that administrative
and judicial discretion must be exercised reasonably and
informed by the values and principles of international human
rights law that has been ratified by Canada. Mr.
porter will document that international human rights law
recognizes the right to adequate food, clothing and housing
and other and that states have an obligation to ensure that
those who are sentenced to any font1 of incarceration are
provided with these and other requirements of dignity and
security.
Mr. Porter will suggest that welfare ~ud is excessively
criminalized and that administrative remedies of the sort
most often used in other areas, such as Employment Insurance,
ought to be the general rule with respect to cases such
as Kimberly Rogers'. Drawing on his work in judicial education,
he will suggest ways in which the guidelines and policies
should be developed to better address considerations related
to poverty, disability, pregnancy. gender and family status.
He will advance suggestions of how policies and guidelines
should ensure: i) that prison terms or house arrest are
not disproportionately applied to people OD social assistance;
ii) that conditional sentences do not result in harsher
penalties for social assistance recipients or jeopardize
mental or physical security because of poverty or other
disadvantage, and ill) that no one subject to conditional
sentencing is denied assistance necessary to ensure access
to adequate. food, clothing, housing and other necessities.
|
[11]
It is this ruling that promped the Coalition to bring the application
now before us.
[12) In essence, the Coalition says that Dr.
Eden's ruling excludes evidence that goes to the
very core of the reason it was granted standing and results in a
failure of natural justice. The
Coalition says that once granted standing, there should be no limit
to its right to lead relevant evidence.
[13] The Coalition emphasizes that it
is not attempting to turn this Inquest into a Royal
Commission. The respondents, especially the Ministry of the Attorney-General,
Criminal Law Division, urged us to be alert to the fact that a Coroner's
Inquest in not in the nature of a Royal Commission. It is said that
if the Coalition succeeds in this Application for Judicial Review,
it will have the effect of broadening the inquest so that it takes
on the characteristics of a Royal Commission Inquiry. We do not
agree with this submission. It is clear to us that all parties understand
that the inquest is not akin to a Royal Commission Inquiry. We note
that Dr. Eden prepared a document entitled" Inquest Procedures"
that contained clear guidelines that would govern the conduct of
the inquest. It refers to the Coroner's Act, R.S.O.1990,c. C.37,
section 31 and concludes with the following commentary:
Throughout
this inquest, we should never lose sight of the fact that we are
here because a member of our community died, and that it is the
task of all of us to put before the jury the evidence that will
enable them to render a verdict which fairly and impartially reflects
the facts of the case, and which may contain recommendations to
prevent the death of another.
The Standard of Review
[14] We approach this application for judicial review on the basis
that considerable deference
is afforded the ruling of Dr. Eden In Toronto (Metropolitan) Services
Board v. Young [1997] O.J. No. 1076, Sharpe J. (as he then was)
stated:
Applications
for judicial review of the decision of a coroner to grant or
refuse standing have been considered a number of times by this
court. It is well established that the standard of review is
not correctness, but whether the coroner committed a serious
error in principle resulting in unfairness: Stanford v. Harris
(1989) 38 C.P.C, (2d) 161 (Div. Ct.) at 173 per Campbell J.
In Black Action Defence Committee v. Huxter, supra, Adams J.
reviewed the authorities and concluded (at p. 691) "that a decision
of a coroner will not be reviewed where there is no evidence
on the record to suggest that the coroner acted "improperly,
unfairly, or unreasonably", Earlier, Adams J. described the
test as whether there was a (at p. 677) "serious error in principle"
and whether the coroner "manifestly erred." In Stanford v. Harris,
Campbell J. explained the rationale for curial deference to
the decisions of a coroner in this area (at p. 173):
The standard of review obviously does not involve a power
in this Court to substitute its own view for that of the coroner,
on the basis only that the Court, in the position of the coroner.
would have reached a different decision.
The coroner
is faced with a very difficult task and must be afforded a
sufficient degree of insulation from review.. .Applications
for judicial review should be discouraged, as they detract
from the coroner's ability to control the proceedings, and
they produce delay.
[15]
We are alerted that the majority of the cases cited
to us on the standard of review deal with decisions on standing
of various groups who sought intervenor's status. In cases where
evidentiary decisions of the coroner were the subject of judicial
review the question is whether the ruling has such an impact on
the fairness of the proceeding that it leads to a failure of natural
justice., If the ruling does lead to a failure of natural justice,
the reviewing court is entitled to intervene. Such an intervention,
while the inquest is proceeding has been held necessary to "save
the inquest": see People First of Ontario v. Porter. Regional
Coroner Niagara. [1992] O.J. No. 3 at page 3 (C.A.). The words "save
the inquest" imply a very high standard of review.
[16]
Ms. Scott stressed that the Coalition believes
that the evidence excluded by Dr. Eden prohibits the Coalition from
offering the unique perspective to the jury on matters for which
it was given standing. Dr. Eden's rulings are not as restrictive
and limiting as urged upon us by Ms. Scott. We record that we have
carefully considered his rulings focusing on what evidence is in
and what evidence is out as a result of his rulings. Having done
so, we do not see the effect of his rulings as one wich deprives
the Coalition of the opportunity to address the bed rock issues
which underlie the reasons why the Coalition and OSSN were granted
standing by Dr. Eden.
[17]
Although we are handicapped by the fact that we
did not have a complete record of all of the evidence at the inquest,
the thoughtfulness and fairness that is inherent in the ruling impresses
us. (By commenting on the absence of a complete
record, we do not criticize any of the parties. They did remarkable
work in getting sufficient materials together in order that this
application could proceed with minimum disruption to the Inquest.)
It is not the function of this court to micromanage the
ruling of Dr. Eden. In view of the standard of review, Dr. Eden's
ruling is not one with which we can or should interfere. The application
is therefore dismissed.
Signed by
John deP Wright J.
Ellen Macdonald J.
Peter Howden J.
Date: November 28, 2002
Please
note that the above text was retyped and there may be errors.
To View the original document in PDF format, follow
this link. (requires Acrobat Reader)
This page
was created on De. 2, 2002
|
