Kim Rogers: Death in the Modern Day Pauper’s Prison

Cet article est disponible uniquement en anglais.

Kim Rogers, eight months pregnant and serving a sentence of house arrest in Sudbury, Ontario, died in her small apartment on August 9, 2001 during the course of a record-setting heat wave. Two days passed before her body was found.

Many see Kim Roger’s death as the result of an absurd and excessive sentence acting in concert with the Harris’ government’s social assistance regulations. Since their enactment on April 1, 2000, the regulations impose a lifetime ban on claimants convicted of social assistance fraud.

Rogers pled guilty on April 25, 2001 to receiving about $49,000 in student loans over the course of four years while she was in receipt of social assistance. She had attended Cambrian College in Sudbury and had just obtained a diploma in Social Work. The Court was informed that she was pregnant, suffered from chronic depression and often had to rely upon charity to afford medication and food. She stated that she was not told when she plead guilty that, in addition to a sentence ordered by the Court, she would be automatically suspended from social assistance for life by the province.

In sentencing, Judge Greg Rodgers ordered Kim Rogers to serve six months of house arrest, allowing her to leave her apartment for three hours one day a week. Yet, in addition to being banned from receiving social assistance for life, she was ordered to repay both the overpayment and the loan, together totalling $62,000, despite having absolutely no source of income or any opportunity to obtain work during her sentence.

Faced with an impossible situation, Kim Rogers launched a constitutional challenge of the Regulations under the Ontario Works Act, S. O. 1997 c. 25, Schedule B, as amended (” Regulations”). She took the position that the Regulations violated her rights contained in the Canadian Charter of Rights and Freedoms and were ultra vires the Lieutenant-Governor in Council of the Province of Ontario. Essentially, it was to be argued that the lifetime ban constituted cruel and unusual treatment or punishment contrary to s. 12 of the Charter. In addition, it would be argued that Rogers was denied her s. 15 Charter right to equal treatment before the law and denied her s. 7 Charter right to life, liberty and security of the person, as her sentence was not administered in accordance with the principles of fundamental justice.

In a decision rendered May 31, 2001 by Epstein J., in Rogers v. Ontario (Works, Administrator for the City of Greater Sudbury) [2001] O. J. No. 2167, the Court granted an interlocutory injunction allowing Rogers to receive social assistance pending a full hearing of the constitutional challenge, with retroactive payments. The full hearing was set to be heard in Toronto in September, 2001.

Epstein J., noted as fact that Rogers had no personal savings, was estranged from her family and the father of her child, and was unable to access help from many charitable organizations. The Court stated that in these unique circumstances Rogers was in peril of becoming homeless and deprived of basic sustenance and that:

“… such a situation would jeopardize the health of Ms. Rogers and the fetus thereby adversely affecting not only mother and child but also the public – its dignity, its human rights commitments and its health care resources. For many reasons, there is overwhelming public interest in protecting a pregnant woman in our community from becoming destitute.”

However, even after the reinstatement, she was only entitled to receive $520 a month from Ontario Works. This amount was clawed back to $468, as the overpayment was levied. Her rent was $450. It was impossible for her to afford or obtain sufficient or proper food. Before her death she was literally a prisoner in her small apartment, waiting through a heatwave for her sentence to end, hungry and understandably anxious for her unborn child, yet still anticipating the hearing of her constitutional challenge.

Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies (CAEFS) in an e-mail to the Par-L listserve after Kim Roger’s death, stated that:

“The institutional contradictions arise from the central issue that we are dealing with the creation of an underclass, subject to increased state control and too frequently the consequent criminalization of the most marginalized, particularly poor, racialized and psychiatrized — and women disproportionately so….”

Many of us know that the decision to prosecute for “welfare fraud” is a relatively recent government policy. In the past, such instances were more likely to be referred to as “over-payment” and repayment schemes would be implemented. Technically, the government always had the option to pursue criminal charges, but the practice was to not do so. Indeed, in some cases, as in situations where it was determined that the individual made a genuine mistake or a social worker determined that the individual had been intending to improve his/her situation (ie. pursuing an education or other training), portions of the so-called over-payments might be “forgiven.”

Kim Roger’s case starkly highlights the terrible consequences when poor and disabled women’s Charter rights are effectively breached by the operation and application of harsh legislation and policy, as other provincial governments (most recently Nova Scotia) are considering implementing policy and regulatory provisions on social assistance similar to Ontario’s.

Sources: MacKinnon, M. and Lacey, K., “Bleak House”, The Globe and Mail, Saturday, August 18, 2001, F1; Kim Pate, e-mail on Par-L listserve; Rogers v. Ontario (Works, Administrator for the City of Greater Sudbury) [2001] O. J. No. 2167