ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-547-00SR
DATE: 20151211
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. H. Gluzman, for the Crown
- and -
CHANTAL BERGAMASCO
Mr. P. Druxerman, for the defence
HEARD: November 9, 2015, at Brampton
REASONS FOR JUDGMENT
F. Dawson J.
[1] This is a hearing pursuant to s. 746.6 of the Criminal Code to determine whether the accused has breached the house arrest provision of her conditional sentence and, if so, to determine what the consequences should be.
[2] The accused testified before me that she only breached her conditions because she was subjected to threats to herself and her family that if she did not accompany one Cordell Rumbaki and work for him as a prostitute she and her family would be harmed. The accused raises this as a “reasonable excuse” pursuant to s. 742.6(9) of the Code. That section establishes that at the hearing the court must be satisfied on a balance of probabilities that the offender has, without reasonable excuse the proof of which lies upon the offender, breached the conditional sentence, before the court will be in a position to proceed to impose the sanctions described in the section.
Background Facts
[3] In October 2012 the accused was charged with a number of firearms offences after the police came to her apartment looking for a man named Howard Buchanan. The police had information that Buchanan was in possession of a handgun. When the police arrived Buchanan was not present but a loaded handgun was found in a container of baby clothes in Ms. Bergamasco’s apartment.
[4] On October 8, 2014 a jury convicted Ms. Bergamasco of possession of a firearm knowing that she did not have a licence and careless storage of a firearm.
[5] On February 23, 2015, I sentenced the accused to a conditional sentence of 18 months. I note that it was the accused who sought the conditional sentence. The Crown sought a custodial sentence.
[6] The conditional sentence that I crafted was designed to promote the accused’s rehabilitation by allowing her to care for her young daughter and to pursue her education or career training, while protecting her from men like Mr. Buchanan and Mr. Rumbaki. By the time the accused was sentenced she had been charged with breaching the terms of her bail and I learned that post-conviction she was found working as a prostitute for Mr. Buchanan. Mr. Rumbaki’s name came up as someone who had tried to help her escape Mr. Buchanan’s clutches.
[7] There is a complicated chronology of events which is relevant to my decision at this time. I do not propose to set it all out. It was well canvassed in Crown counsel’s cross-examination of the accused at the hearing. Prior to reaching my decision I have carefully reviewed the chronology and the testimony of the accused concerning those events.
Evidence of the Alleged Violation
[8] On the afternoon of July 8, 2015 the police attended a hotel room in Mississauga to speak to Cordell Rumbaki. Mr. Rumbaki was then arrested on outstanding warrants. The accused was present in the hotel room. She gave the police a false name and date of birth and said that she had been Mr. Rumbaki’s girlfriend for about a year. She did not tell the police officers, even after Mr. Rumbaki was arrested and removed, that she had been kidnapped at gunpoint and forced to accompany Mr. Rumbaki in order to work as a prostitute.
[9] The accused testified that at about 11:00 a.m. on July 8, 2015, she left her young daughter in the backyard of her parents’ home in the care of other family members. She went out to the front driveway to have a cigarette. She said that Mr. Rumbaki appeared and dragged her to a nearby cat-walk. She claimed he pulled out a gun and threatened that if she did not go with him he would harm her or her family. She said she felt she had no choice but to go with him. He had hurt her before when she did not cooperate with him but always treated her alright if she did what he wanted. She knew he wanted her to go to work immediately as a prostitute. In cross-examination the accused agreed that she was kidnapped at gunpoint and said that she was terrified.
[10] Counsel for the accused urges me to accept the accused’s evidence, particularly given the background chronology of events that shows she has been victimized by pimps in the past. Counsel submits that all the elements of the excuse of duress are made out. See R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687 and R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14.
Analysis
[11] I am unable to accept defence counsel’s submissions for two reasons. First and foremost, I do not believe the testimony of the accused. Second, and still very significant, the evidence demonstrates beyond question that the complainant had at least two or three safe avenues of escape which she did not avail herself of. The second point eliminates the excuse of duress. It is also part of the reason I reject the accused’s testimony. I also wish to add that this is not a situation where the Crown must negative duress beyond a reasonable doubt. Given the wording of s. 742.6(9) the general burden is a balance of probabilities and it is for the accused to establish the excuse.
[12] I turn first to the credibility of the accused. She said that she went out for a cigarette and was kidnapped. Yet when she is later seen on security video at a Tim Hortons she has her purse and a wallet with her. She testified that her driver’s licence was in the purse. Her explanation for having these items is that Mr. Rumbaki kept a bag ready at his house which contained these items, condoms, a prepaid phone needed to post her adds and everything else she needed to work as a prostitute. The accused testified that after Mr. Rumbaki kidnapped her at gunpoint he called a cab which the two of them took to Mr. Rumbaki’s house so that he could retrieve the ready bag of items that included her purse and wallet.
[13] Of considerable significance, the accused testified that Mr. Rumbaki left her alone in the taxi while he went into the house. She clearly had an opportunity to escape or seek assistance at that time but did not do so.
[14] According to the accused the taxi then took them to a Studio 6 hotel in Mississauga. At that point Mr. Rumbaki went into the hotel alone to rent a room. The accused went to a nearby Tim Hortons to obtain food and a coffee. She can be seen on the security video wearing a floral print dress and waiting calmly in line in the very busy coffee shop. She calmly pays for her purchases and calmly leaves. She does not appear to be even slightly upset. In fact she appears composed and confident. She very clearly had an opportunity to seek protection and assistance and did not do so.
[15] I also observe that when describing being threatened with a gun in the cat-walk Ms. Bergamasco could not describe where the gun was produced from. Nor could she say where the accused put it afterwards. I note that security video from the front desk and reception area of the Studio 6 shows Mr. Rumbaki to be wearing a tee shirt and jeans, both relatively trim and form fitting. There is no place a gun could likely be hidden. There is no evidence that Mr. Rumbaki had changed his clothes at his house.
[16] When the police arrived at the hotel the accused gave a false name and date of birth. She did not seek the assistance of the police even after Mr. Rumbaki was arrested and removed. She took a cab home and then tried to contact a Cst. DeCardova, who had been involved with her before and knew her story. I have taken what the accused said about her rationale for doing so into account. Her behaviour was, however, inconsistent with what would be expected from someone who had been kidnapped at gunpoint and who was terrified. Quite apart from the credibility impact of this, it is a third opportunity she had to seek assistance. I note that until she testified here the accused had not told anyone in authority that she was kidnapped at gunpoint.
[17] In addition to the foregoing, other evidence was led which shows that the accused has behaved in a very inconsistent fashion in relation to her allegations against Mr. Buchanan and Mr. Rumbaki. Despite her K.G.B. statement against Mr. Buchanan she refused to testify at his preliminary inquiry and he was freed. Despite her current claims about Mr. Rumbaki, she texted a police officer after these events and prior to her arrest on this matter, that she would not testify against Mr. Rumbaki. She also texted that he had never acted as her pimp. She says she did that because she was being pressured and threatened by others to get Mr. Rumbaki’s charges dropped. The difficulty I have is that the entire chronology of relevant events demonstrates that the accused is manipulative and thoroughly unreliable and she bears the burden.
[18] In this regard, I also note that the accused now admits that it was her idea to get back into prostitution around Christmas 2014. That was kept from me when she previously testified at her sentencing hearing. I understand, of course, that prostitution is not illegal. Nonetheless, she previously left the impression with me that she was always forced into it.
[19] I also have evidence before me that the accused told Cst. Mendonca on April 17, 2015, when she refused to testify against Mr. Buchanan, that she felt that her life was over due to the house arrest provision and her criminal record and that she would return to escorting because she cannot do minimum wage jobs. In her testimony she claims that she meant she might work as an escort after her conditional sentence was over.
[20] At one point in her cross-examination the accused was asked if Mr. Rumbaki had ever threatened her with a gun before. She said that she could not remember and that she did not think so. In my view this demonstrates that the accused is not a truthful witness. A truthful person would surely know whether they had previously been threatened with a gun.
[21] I simply do not believe the accused’s testimony regarding the threats she claims were made. In addition, she had two to three safe avenues of escape. Either of these findings would lead me to reject her excuse.
[22] I note that the breach alleged is otherwise admitted. I find the violation of the conditional sentence to have been established.
Disposition
[23] The question then arises as to what, if any, consequences should flow. The governing authorities indicate that the presumptive result is that the offender should serve the balance of the conditional sentence as a custodial sentence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. However, s. 742.6(9) provides me with a wide range of options.
[24] Here I note that within less than five months the accused was found violating her conditional sentence. She then gave a false name and date of birth to the police. She was permitted to continue living in her parents’ home and the conditions I imposed provided a generous opportunity for her to take steps to assist herself after she was convicted of firearms offences. One of the main purposes of the conditional sentence was to give the accused an opportunity to further her education or job training. I was previously advised that she was genuinely motivated to do that. However, she has not done that. She has violated the trust placed in her. Instead of taking advantage of the opportunity to improve prospects for herself and her daughter she has continued to involve herself in the sex trade by violating the terms of her conditional sentence. The report from her supervisor also indicates that she has not kept appointments for counselling which may have assisted her with her self-esteem and which may have helped her to resist the malign influences of men like Mr. Buchanan and Mr. Rumbaki.
[25] The accused has a history of violating her bail conditions. Now she has violated her conditional sentence. In these circumstances the accused’s breach of the terms of her conditional sentence must give rise to significant meaningful consequences. It appears to me that she has been using her association with people like Mr. Buchanan and Mr. Rumlaki to garner sympathy and to manipulate those around her. It is also now apparent that she previously misled me.
[26] Unless there are meaningful consequences for those who violate conditional sentences the entire conditional sentencing regime is put at risk.
[27] I conclude that the next six months of the sentence I previously imposed should be served in custody. I accordingly suspend the conditional sentence and make that order. When the accused is released from that custodial portion of her sentence the conditional sentence will resume pursuant to the original order made on February 23, 2015. The probationary period, of course, remains in effect. The accused will be taken into custody today to begin serving the custodial portion of her sentence.
[28] In reaching this decision I have taken into account the factors set out in s. 742.6(17). I consider this breach to be serious. I do not see this order as creating undue hardship. Indeed the accused is fortunate I have not simply converted the balance of the sentence into a custodial one. In my view the accused requires individual deterrence. I believe six months in custody is appropriate having regard to my continuing concern about the accused’s rehabilitation, the seriousness of the underlying offence and the damage such breaches do to the conditional sentencing regime, as well as to the need for both specific and general deterrence.
F. Dawson J.
Released: December 11, 2015
COURT FILE NO.: CR-13-547-00SR
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
CHANTAL BERGAMASCO
REASONS FOR JUDGMENT
Justice F. Dawson
Released: December 11, 2015