Justice With Dignity - Committee to Remember Kimberly Rogers

Kimberly Rogers Inquest Alerts

House "like the jail" in Sentence, Inquest Told

by Liz Cowan

Osprey Media Group

North Bay Nugget
Wed. October 30, 2002

Sudbury - If Kimberly Rogers had been convicted of welfare fraud before 1996, she would have faced a jail term, the coroner’s inquest into her death was told Tuesday.

Mary Nethery, director of the criminal law policy branch of the Ministry of the Attorney General, testified that conditional sentences were introduced after 1996 as a “gap between jail and probation.”

She said it is described as a term of incarceration in the community and has some punitive and rehabilitative effect.

A conditional sentence, Nethery said, usually involves some period of house arrest.

“The house is like the jail ... and the individual subject is allowed out on certain strict terms and is under the supervision of the conditional sentence supervisor,” she said.

Rogers died in August 2001 in her apartment during a heat wave. The 40-year-old woman was eight months pregnant and serving a six-month conditional sentence for welfare fraud.

The conditional sentence allowed her to leave her apartment for three hours each week and to attend medical appointments. Toxicology reports indicated she died of a lethal overdose of anti-depressants.

There are also no specific guidelines for sentencing to deal with welfare fraud, Nethery said. The judicial system relies on case law as it evolves. But before 1996, it was not unusual to see a jail term for this type of fraud.

Now, it is not unusual to see conditional sentences.

“There was a shift from jail to conditional sentences in these types of fraud,” Nethery said.

Although house arrest is not mandatory in a conditional sentence, Nethery said it is the norm rather than the exception.

The terms of the order can also be changed if they are found to be inappropriate or problematic.

The conditional sentence supervisor can apply to the Crown attorney if the sentence is not workable or the offender, Crown or counsel can request a change and a hearing will be held.

Once information about a charge is received from the police, the Crown attorney undertakes a screening process. The Crown is allowed some degree of discretion, but there has to be a reasonable prospect of conviction and be in the public interest to proceed.

If there is no prospect of conviction, the prosecution is discontinued.

During the screening process, some matters are not considered and these include the race, religion and social status of the accused and partisan political advantage or disadvantage.

“Some decisions we have to make are very difficult,” Nethery said. “There may be public outcry, but it is not taken into account.”

Some factors that can be considered are the gravity or triviality of the incident; the age, physical and mental health or special infirmity of the accused; and whether the consequences of any resulting conviction are unduly harsh or oppressive.

Jennifer Scott, representing the Elizabeth Fry Society, the Women’s Legal Education and Action Fund, the National Association of Women and Law and the National Anti-Poverty Organization, asked Nethery if the circumstances of the accused are taken into consideration during the screening process.

“Is the physical and mental health of the accused and the impact of the conviction part of the screening process?” Scott asked.

“Yes, potentially,” Nethery said.

Some information would not be available to the Crown during the screening process but divulged later by the defence counsel or in a pre-sentence report, which is ordered by a judge before sentencing is determined, Nethery said.

She also said an accused person may not want certain personal information released before the court.

Nethery also agreed, under cross-examination, that a “valid consideration for sentencing” would be to take into account how an accused person will meet basic survival needs.

Philip Zylberberg, Sudbury assistant Crown attorney, testified he did the initial screening of Rogers’ case.

Since her case was considered serious, it had to proceed as an indictable offence.

Zylberberg said the initial screening indicated there would be an early plea of guilt.

It was also the Crown’s position at that time that there should be a six-month conditional sentence, which included a curfew and a restitution to pay $2,500 during the conditional sentence.

He said he must have been under the impression that Rogers was working. As for the curfew, Zylberberg said he was not in a position at that time to address how restrictive it would be.

The inquest continues today at the Sudbury Court House.




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