Kimberly Rogers Inquest -
Tues. Dec. 3, 2002 - Day 28
Kim Pate, Executive Director of Canadian Association of Elizabeth Fry Societies, testified. (Bruce Porter' cross examination will be continued tomorrow because Ms. Pate had to leave today). Ms. Pate has visited almost all Federal and many provincial prisons across Canada; worked on law reform, professional education, and many consultations with government, particularly in the area of conditional sentencing (house arrest). She has also been qualified as an expert for various other legal purposes, including the suicide of a woman in jail. The coroner ruled Ms. Pate is qualified to give evidence on women in conflict with the law, sentencing and the impact of sentencing and how the criminal justice system could better meet the needs of this population.
Ms. Pate explained that conditional sentences were brought in, in 1996 mainly to try to bring down the increasing rate of incarceration in Canada. It was felt that many people were there for property related offenses who were not a risk to the community. The Supreme Court of Canada has given direction that conditional sentences are meant to be prison sentences; therefore they must include a curfew or house arrest. In addition to the punitive aspect, they should also have a restorative aspect-should include rehabilitation.
There are a number of differences between men and women, starting with the commission of offenses: women far less likely to be charged with violent offenses. Women are more likely to get conditional sentences, and are less likely to reoffend. As well, the impact of house arrest is not the same. Since men are more likely to be employed, they usually have a condition allowing them to leave the house each day for a job; therefore it is a less isolating sentence than those for an unemployed woman confined to the home virtually all the time.
Although more women now get conditional sentences, there is not a correspondingly great decrease in the number of women in jail. Some people who used to get probation and fines, now get house arrest.
Women tend to be far more compliant, to follow the rules, and be very fearful of challenging, appealing or getting conditions varied. In this case, Kimberly Rogers understood that she could only leave for three hours on Wednesday, even though the conditional order said she could leave for other purposes if she got permission from her conditional supervisor.
Ms. Pate commented that since Ms. Rogers' death many people have said she would have been better off in jail (as she would at least have had food provided). However the reality of jail for women and people with mental health problems is that many commit suicide in jail. Here in Sudbury, women are put into 5 cells in a part of the men's jail; as many as 15 women could be crammed into those cells. Conditions in provincial jails generally are deteriorating (some women even prefer to get a longer sentence in order to be sent to a federal prison). The isolation causes pre-existing mental illnesses to get worse, and new ones to develop. Ms. Rogers had panic disorders, social phobia, and depression.
When asked about the
impact of a criminal conviction for welfare fraud on women, Ms. Pate stated
that obviously the most obvious effect now is the lifetime ban. Even if
given probation, she will have no income. If she had a job a criminal
conviction often means she will lose it, and it is much harder to get
a job with a criminal record. The ban is an administrative penalty that
serves to ratchet up the punishment far beyond what is appropriate for
The lawyer for the Ministry of Public Safety and Security stated in cross examination that it would have been easy for Ms. Rogers to get permission to leave her home for many reasons such as looking for a job, or going to a parenting group. If she was too compliant or afraid to ask for a letter of permission, the community people could have helped her simply by getting her to sign a consent to speak to her conditional sentence supervisor. Therefore, he proposed that Ms. Pate should train all Elizabeth Fry society staff (in their 24 chapters across Canada) in the simple process of getting a consent signed and getting permission for their clients under house arrest to go out.
In response to questions from Cindy Wilkey, lawyer for OSSN/SCSA, Ms. Pate agreed that should criminal prosecution continue to be used for some welfare fraud, that a diversion program might be used so that people could avoid criminal convictions triggering the ban, but still be held accountable for the offense. She also agreed that it would be a good idea to provide fact sheets on the meaning of conditional arrest, how to get permission to go out, how to vary the conditions, etc.
The lawyer for the Attorney General pointed to the testimony of the defense lawyer in Ms. Rogers case, in which he claimed it would not have been in Ms. Rogers best interests to have a pre-sentence report. Ms. Pate replied that not all people charged with welfare fraud have competent counsel; sometimes they can't get a lawyer at all, or may have duty counsel who knows nothing about them. In response to the suggestion that it would have been a breach of Ms. Rogers' privacy to have a pre-sentence report looking into her background and personal characteristics to determine whether she could manage house arrest, the jury was reminded of the affidavit Kimberly Rogers signed just two weeks after the sentence in which she voluntarily disclosed all the personal information that would have been useful in determining the appropriate sentence.
On Wednesday, December 4, Mr. Porter's cross examination will resume. Then the last witness at the inquest will be called, Margaret Little, for OSSN/SCSA.
Nancy Vander Plaats, OSSN