ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR12-70000-227700-M0
Date: 20130114
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KIMRON BENGY
Robert Wright, for the Crown
Scarlet Smith for Mr. Bengy
Heard: December 7, 2012
FORESTELL J.
reasons for Judgment on the Charge of Contempt
Background
[1] Kimron Bengy was subpoenaed to appear as a defence witness in the trial of Leon Alexander and Edmund Benjamin. Mr. Alexander faced charges of second degree murder and manslaughter. Mr. Benjamin faced a charge of manslaughter. Mr. Bengy, at the time that he was called to testify, had been acquitted of one count of murder and convicted of a second count in relation to the same killings with which Mr. Alexander and Mr. Benjamin were charged.
[2] When called to the stand on November 19, 2012, Mr. Bengy affirmed to tell the truth and then refused to answer any questions. The trial was adjourned in order for Mr. Bengy to speak to his lawyer who attended for that purpose. After being given an opportunity to speak to counsel and after being warned that he could be found in contempt, Mr. Bengy continued to refuse to answer questions.
[3] I cited Mr. Bengy with contempt and he was remanded to December 7, 2012 to appear to show cause why he should not be found in contempt.
Evidence at the Show Cause Hearing
[4] At the contempt hearing, the transcript of Mr. Bengy’s refusal to answer questions was filed. It is not disputed that Mr. Bengy refused to answer questions, that he was afforded ample opportunity to consult with counsel and to consider his position and that he continued to refuse to answer questions.
[5] Mr. Bengy testified in his defence. He testified that he is serving a life sentence and, as a result of his current classification, is serving his sentence at Millhaven institution. He is on “J-unit” at Millhaven and will not move from that unit for at least two years. J-unit is where offenders convicted of homicides, serious violent offences and gun charges are incarcerated. Mr. Bengy testified that there are violent offences committed on J-unit on a regular basis. He also testified that if an inmate is suspected of being an informant he is likely to be beaten or stabbed. Mr. Bengy testified that an inmate is considered to be an informant if he testifies. He testified that word travels back to the institution if an inmate takes the stand.
[6] Mr. Bengy testified in examination-in-chief that he meant no disrespect in refusing to testify, but that he had no choice in order to protect himself from harm.
[7] Under cross-examination Mr. Bengy agreed that he had testified at the preliminary inquiry when called as a witness by the Crown. At that time he had not been convicted and was detained at a detention centre.
[8] He agreed that he did not want to be labelled a ‘rat’ and that a ‘rat’ was someone who pointed the finger at someone. He agreed that he did not point the finger at anyone at the preliminary inquiry and therefore was not a ‘rat’. He was asked what was different at the trial when he was being called by the defence. He replied that he “just chose not to say anything”. He went on to say that he had a case that he was going to appeal.
[9] He also said that it was “not about being afraid.”
[10] It was put to him that when he was called to the stand he did not say anything about being too scared to give evidence. He replied that this had “nothing to do about being afraid. It was not about being afraid.” He said it was about the “life [he has] to live in prison.” He agreed that he was not afraid; it was about reputation in the prison.
[11] In re-examination, Mr. Bengy testified that the difference between the preliminary inquiry and the trial was that he did not know at the preliminary inquiry that he would be living for years in prison.
[12] In re-examination Mr. Bengy reiterated that his refusal to testify was not about being scared, but it was about his “name” in prison.
The Law
[13] As set out by our Court of Appeal in R. v. Devost, 2010 ONCA 459, [2010] O.J. No. 2611 at paragraphs 34 to 36:
¶34 The crime of contempt in the face of the court is unique in many ways. It is, however, a true crime requiring proof of prohibited conduct (actus reus) and proof that at the time the accused engaged in the prohibited conduct, he or she had the requisite culpable state of mind (mens rea). Both elements must be proved beyond a reasonable doubt.
¶35 The actus reus of contempt in the face of the court consists of conduct that seriously interferes with or obstructs the administration of justice or conduct which causes a serious risk of interference or obstruction with the administration of justice: R. v. Glasner (1994), 1994 3444 (ON CA), 93 C.C.C. (3d) 226 (Ont. C.A.) at pp. 242-43. ….
¶36 The crime of contempt also requires proof of mens rea. In Glasner, Laskin J.A. described the necessary mens rea in this way:
In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or conduct which demonstrates indifference, which I take to be akin to recklessness. Nothing short of that will do.
[14] A witness who refuses to be sworn or to testify can be cited for contempt. In R. v. Cohn (1984), 1984 43 (ON CA), 48 O.R. (2d) 65 our Court of Appeal explained that in cases such as the case before me, involving contempt in the face of the court, the facts known to the judge may amount to prima facie proof of the offence. However, the contemnor is entitled to the presumption of innocence and the burden on the accused is only an evidential burden, not a persuasive burden.
[15] The jurisprudence makes clear that the defence of duress applies to the offence of contempt. To raise the defence of duress, an accused must introduce some evidence that he acted as a result of threats of death or serious bodily harm to himself or to another person. Once the accused raises the defence and introduces some evidence of duress, the burden shifts to the Crown to show, beyond a reasonable doubt, that the accused did not act under duress. (See: R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687.)
Application of the Law to the Facts of this Case
[16] The refusal to testify by Mr. Bengy interfered with the administration of justice. It was admittedly a deliberate and calculated choice by Mr. Bengy. The issue to be determined is whether the Crown has proven beyond a reasonable doubt that Mr. Bengy did not act under duress. I am satisfied beyond a reasonable doubt that Mr. Bengy did not act under duress.
[17] Mr. Bengy testified in his examination-in-chief that his refusal to testify was motivated by the fact that he would not be safe in the penitentiary if he testified. In cross-examination and in re-examination, however, Mr. Bengy made it clear that he was not afraid and that his refusal to testify had nothing to do with fear. He testified that he was concerned about his ‘name’ and he also testified that he had his own appeal to think about. Mr. Bengy testified at the preliminary inquiry with no consequences to his safety. He testified that he would not be considered an informant unless he implicated someone. He agreed that he had not implicated anyone at the preliminary inquiry and that he was not considered an informant as a result of that testimony.
[18] I find that Mr. Bengy did not refuse to testify because of any fear of death or bodily harm. His motivation for not testifying remains unclear. It was either out of a desire to protect his reputation or a desire to protect his own interests in his appeal.
[19] I therefore find that the actus reus and mens rea of the offence of contempt have been made out. The defence of duress has been disproven. I am satisfied that the offence of contempt has been proven beyond a reasonable doubt.
[20] Counsel for Mr. Bengy did not submit that I ought to find that Mr. Bengy acted under duress, but submitted that I should find that Mr. Bengy ‘purged’ the contempt citation. I do not find that Mr. Bengy purged the contempt. Mr. Bengy was given two opportunities to testify after being warned about the consequences of not testifying and after having an opportunity to consult his lawyer. He could have purged the contempt by testifying and he made a decision not to do so. I find, based on Mr. Bengy’s conduct and his testimony that he chose to put his interests in his reputation ahead of his legal obligation to answer questions in a murder trial.
[21] I find Mr. Bengy guilty of contempt.
Forestell J.
Released: January 14, 2013
COURT FILE NO.: CR12-70000-227700-M0
DATE: 20130114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
kimron bengy
Reasons for Judgment
on the Charge of Contempt
Forestell J.
Released: January 14, 203