Ruling re Application for Standing at the Inquest into the Death of Kimberly Rogers - Justice With Dignity

Kimberly Rogers Inquest Alerts

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

Physicians

City of Sudbury

Ontario Ministry of the Attorney General

Sudbury Police

Ontario Ministry of Public Safety & Security

Sudbury Social Planning Council

Joint Application from the
Ontario Social Safety Network (OSSN) and
the Steering Committee for Social Assistance (SCSA)

Application from the "CAEFS Coalition":
Canadian Association of Elizabeth Fry Societies,
with the Women's Legal Education and Assistance Fund,
the National Association of Women and the Law, and
the National Anti-Poverty Organization

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 Kimberly Rogers; and that the applications for standing must be based on the facts that gave rise to this inquest. For each party granted standing, the interest of the party under Section 41 has been explicitly specified, and parties must limit their cross-examination and calling of evidence to their respective areas of interest as set out in this ruling.

Physicians

Physicians who provided care to Ms Rogers, represented by Mr. Brynaert, have requested standing on the basis that they directly provided care to Ms Rogers, and that the health care provided to Ms Rogers has been identified as an issue to be examined at this inquest. Using the private law test, I find that this party is substantially and directly interested in this inquest. Under Section 41 of the Coroners Act, the interest of this party is:

"The medical care provided to Ms Rogers and persons in similar circumstances."

City of Sudbury

The City of Sudbury, represented by Mr. Martin James, has requested standing, specifically with regard to the Ontario Works program, which it administers. Sudbury Ontario Works staff were involved with Ms Rogers, before, during and after the prosecution. Ontario Works' involvement with Ms Rogers has been identified as an area to be explored at this inquest. Using the private law test, I find that this party is substantially and directly interested in this inquest. The party's interest under Section 41 is:

"The municipal administration of welfare and provision of services to low-income persons, as it relates to Ms Rogers and persons in similar circumstances."

Ontario Ministry of the Attorney General

The Ontario Ministry of the Attorney General, represented by Ms Lynne McArdle, has applied for standing, specifically to represent the interests of the Criminal Law Division and the specific Crown Attorneys involved in the prosecution and sentencing of Ms Rogers. The criminal prosecution and sentencing of Ms Rogers has been identified as an area to be explored at this inquest. Using the private law test, I find that this party is substantially and directly interested in the inquest. The party's interest under Section 41 is:

"The role of the Crown Attorney in the prosecution and sentencing of Ms Rogers, and persons in similar circumstances."

Sudbury Police

Mr. Rejean Parisé has applied for standing on behalf of Sudbury Police. The role of Sudbury Police in the criminal prosecution of Ms Rogers is an issue expected to be explored at this inquest. Using the private law test, I find that this party is substantially and directly interested in this inquest. The party's interest under Section 41 is:

"The Police role in the prosecution of Ms Rogers, and persons in similar circumstances."

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.

Ontario Ministry of Public Safety & Security

Mr. Brian Whitehead has applied on behalf of the Ministry of Public Safety and Security, whose staff supervised Ms Rogers during her sentence. The supervision of Ms Rogers sentence has been identified as an area to be explored at this inquest. Using the private law test, I find that this party is substantially and directly interested in the inquest. The party's interest under Section 41 is:

"The Ministry's role in the supervision of Ms Rogers' sentence, and persons in similar circumstances."

Sudbury Social Planning Council

The Sudbury Social Planning Council (SPC), represented by Mr. Donald Kuyek, has applied for standing on both private and public interest grounds, which I will deal with separately:

Private Interest: Mr. Kuyek applied for standing under the private law test, submitting that one of the scheduled witnesses is involved with the SPC, and that other SPC staff provided services to the deceased. A witness testifying at an inquest is not automatically a party with standing, and Section 43 of the Coroner's Act specifically anticipates the situation where a witness who is not a party may request representation by counsel. The assistance provided to Ms Rogers by persons associated with SPC has not been identified as an issue to be examined at this inquest, and Mr. Kuyek did not suggest any reason it should be; as well, Mr. Kuyek has not suggested any areas of recommendations which the jury might direct to the SPC (Mr. Kuyek argued persuasively that the SPC is in a position to assist the jury in formulating recommendations directed to other agencies, a matter I will discuss below). The Sudbury Social Planning Council fails to meet the private law test for standing at this inquest.

Public Interest: By affidavit and during oral submissions, the SPC has provided information to the effect that it is a provincially incorporated non-profit charitable organization in existence for more than 10 years, which assists and advises government and other agencies regarding effectiveness of social program delivery. Its member organizations provide direct services to clients in Sudbury, including Ms Rogers. The applicant argues convincingly that it has developed a unique expertise with regard to the delivery of social programs in Sudbury, including recognition and management of service gaps.

In summary, the organization directly serves clients who share substantial factors in common with the deceased, and has developed a unique expertise in some areas in which the jury may wish to make recommendations.

I find that the Sudbury Social Planning Council meets the legal test for public interest standing and is substantially and directly interested in the inquest by virtue of representing a group which shares a legal identity with the deceased, which 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 formulation of recommendations to ensure that necessary social services are available to persons in Sudbury who are in circumstances similar to those of Ms Rogers, and particularly the prevention of life-threatening gaps in social services."

While this party's participation in the inquest will therefore primarily be in the preventive phase of the inquest, this party may take part in the investigative phase, subject to the following restrictions: 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.

Joint Application from the Ontario Social 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 Jacquie 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."

In addition, this application is granted for the two organizations acting jointly as a single party to the process. If the organizations cease to act jointly, this party's standing will expire immediately, and new applications for standing would be required if these organizations wished to continue participation in the inquest.

Application from the "CAEFS Coalition": Canadian Association of Elizabeth Fry Societies, with the Women's Legal Education and Assistance Fund, the National Association of 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-for-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 submission, 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 party 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 foundation for development of recommendations within its area of interest, and without which the jury could not properly assess the proposed recommendations.

In addition, this application is granted for the party as currently constituted. If the constituent organizations cease 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.

Order of Cross-Examination
Parties will cross-examine in the following order:

Physicians
Ministry of Public Safety And Security
Ministry of the Attorney General
City of Sudbury
Ontario Social Safety Network & Steering Committee for Social Assistance
Social Planning Council
CAEFS Coalition

Where the witness is a party with standing or from a party's organization, that party may cross-examine last. This order may be changed for a particular witness by my instruction or by mutual agreement among parties.

David S. Eden, M.D., Presiding Coroner

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