DisAbled Women's Network: DAWN ONTARIO

Kimberly Rogers Inquest Alerts

 

Judicial Review Decision in CAEFS v. Dr. David Eden, Coroner

November 28, 2002

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COURT FILE NO.: 676/02
DATE: 20021128

SUPERIOR COURT OF JUSTICE ONTARlO
DIVISIONAL COURT

RE:

 

CANADIAN ASSOCIATION OF ELIZABETH FRY SOCIETIES, WOMEN'S LEGAL EDUCATION AND ACTION FUND, NATIONAL ASSOCIATION OF WOMEN IN THE LAW, and NATIONAL ANTI-POVERTY ORGANIZATION
v. DR. DAVID EDEN, Coroner in the Inquest into the Death of Kimberly Rogers
   
BEFORE: J. deP. WRIGHT, ELLEN MACDONALD AND HOWDEN JJ.
   
COUNSEL: Jennifer Scott and Kate Stephenson, for the Applicants
   
 

Al J:C. O'Marra and Kevin McGivney. for the Respondent, Dr. Eden. Coroner

   
  M Michele Smith, for the Respondent, Ministry of the Attorney General - Crown Law Criminal
   
  JoAnne Frenschkowski, for the Intervener, The Ontario Social Safety Network and Steering Committee on Social Assistance
   
HEARD: November 21 and 22, 2002
 

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

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This page was created on De. 2, 2002

Coroner's Ruling re Application for Standing at the Inquest into the Death of Kimberly Rogers
Pre-Inquest Hearing Held September 19, 2002
- Sudbury Courthouse

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