By Jennifer Keck

Most Canadians were appalled last summer when they heard that Kimberly Rogers had died alone and eight months pregnant, in her sweltering apartment in Sudbury, Ontario, while under house arrest for welfare fraud. What many do not realize is that the policies and conditions that set the stage for this tragedy are still in place and in some respects, have actually worsened.

Kimberly Rogers was charged with welfare fraud after collecting both social assistance and student loans to help cover the costs of attending four years of community college. She was convicted in April 2001 and the penalty was stiff: six months under house arrest (with the right to be allowed out of her hot apartment three hours per week); a requirement to repay more than $13 thousand dollars in benefits; 18 months probation and loss of the right to have part of her student loan forgiven.

At the time of Rogers' conviction, Ontario Works* regulations specified that anyone convicted of welfare fraud would be automatically suspended from receiving benefits for three months. This stipulation has since been made tougher. Anyone convicted of welfare fraud in the province of Ontario will be banned for life from ever being able to collect social assistance.

In Rogers' case the three month suspension meant that she was confined to house arrest with no source of income to cover her rent, food or other expenses. On May 14, 2001, Kimberly Rogers became the first Ontario citizen to launch a case under the Charter of Rights and Freedoms that challenged the constitutional validity of Ontario Works regulations that suspended benefits. She did this with the help of the Sudbury Community Legal Clinic.

In her charter case, Rogers argued: (i) the law that allowed welfare authorities to disqualify her from receiving assistance contravened the Charter rights to life, liberty and security of the person (she had no source of income); (ii) cutting off her assistance after she had already been severely punished constituted 'cruel and unusual punishment'; and (iii) as a pregnant woman with a diagnosed disability, the automatic suspension infringed the Charter's guarantee of equality.

""(the suspension of benefits) will in all likelihood have grave and lasting consequences for both Rogers and her fetus." Physician, affidavit to court, May 2001

Judge Gloria Epstein granted a constitutional exemption to the law for Rogers while Rogers' legal team prepared her case. In making her decision, the judge pointed to Canada's human rights commitments:

"In the unique circumstances of this case, if [Ms Rogers] is exposed to the full three months suspension of her benefits, a member of our community carrying an unborn child may well be homeless and deprived of basic sustenance. 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 being destitute."
Justice Epstein, Ontario Superior Court of Justice May 31, 2001

"There is overwhelming public interest in protecting a pregnant woman in our community from becoming destitute." Justice G. Epstein, Ontario Superior Court of Justice, May 31, 2001 Physician, affidavit to court, May 2001

Rogers' benefits were reinstated for the interim, but this was not the end of her problems. Even with Ontario Works benefits she was unable to support herself and her unborn child. After a deduction of 10% (towards repayment to Ontario Works), Rogers received $468 per month. With $450 going towards paying the rent, Rogers was left with $18 per month to cover all other necessities.

"I ran out of food this weekend. I am unable to sleep and I cry all the time." Kimberly Rogers, affidavit to court, May 2001

Tragically, while still under house arrest, Kimberly Rogers died just weeks after the Ontario Superior Court of Justice released its exceptional decision. The Ontario Coroners' office has called for an inquest that will begin in October 2002.

Justice with Dignity

Kimberly Rogers was caught in the cruel web of social assistance policies that have been introduced by the Ontario government since 1995. Dramatic cuts to benefits, the repeal of discretionary benefits for pregnant women, mandatory work-fare, increased vigilance in monitoring and now the lifetime ban for anyone convicted of welfare fraud – all of these changes are designed to make it harder for people like Kimberly Rogers to 'get by' on social assistance.

Motivated by the Rogers' tragedy, the Committee to Remember Kimberly Rogers, a community group from Sudbury, has set out to ensure this type of tragedy does not happen again. In October they held a successful forum in Sudbury that attracted over 150 people. In February the group submitted a brief to the local municipal council with recommendations about how they should proceed with welfare fraud cases in the period leading up to the inquest.

Now the group has joined forces with other anti-poverty organizations and unions to educate the public on the need for welfare reform. The Committee to Remember Kimberly Rogers launched the Justice with Dignity campaign on May 14, 2002 in Ottawa. Companion events were held in Ottawa, Toronto, Sault Ste. Marie, Sudbury, London and Thunder Bay to honour Rogers and to press for welfare reform. The Committee is working with the National Anti-Poverty Organization, Canadian Association of Elizabeth Fry Societies and the Ontario Social Safety Network in order to expand this campaign to other communities.

The Committee makes it clear that social assistance policy in Ontario needs a major overhaul to meet the needs of poor people. The Province must first set benefits at adequate levels; increase funds for training and employment to pre-1995 levels (adjusted for cost of living); allow social assistance recipients to receive both assistance benefits and student loans; repeal the lifetime ban on collecting social assistance benefits after a welfare fraud conviction; make it easier for people in need to qualify for social assistance and stop violating Canada's human rights commitments and international treaty obligations.

The group is also pressing the federal government to restore rights under the Canada Assistance Plan and to ensure every level of government upholds Canada's human rights commitments and international treaty obligations.

Last year, Kimberly Rogers had the courage – against incredible odds – to launch a Charter case that could have had a major impact on how welfare fraud cases are handled in Ontario. According to Laurie McGauley, a member of the Committee to Remember Kimberly Rogers, "… we owe it to Kimberly Rogers to keep up the struggle for better conditions for low-income people, their families and communities. Overhauling social assistance is only the beginning."

For more information about the Committee to Remember Kimberly Rogers, their municipal brief, the Justice with Dignity campaign and to receive buttons and brochures, contact Laurie McGauley at 705-674-0282 or by e-mail at myths@vianet.on.ca.

* Ontario Works is Ontario's social assistance program

Jennifer Keck was a professor of social work at Laurentian University, an active researcher on women's issues, labour and health care, and a passionate social advocate. Jennifer died of breast cancer on June 12, 2002. She was 48.

Canadian Council on Social Development, 190 O'Connor Street, Suite 100, Ottawa, Ontario, K2P 2R3