



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bebonang, 2018 ONCA 30

DATE: 20180115

DOCKET: C61539

Laskin, Cronk and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Bebonang

Appellant

Paula Rochman, for the appellant

Amy Alyea, for the respondent

Heard: January 8, 2018

On appeal from the conviction entered on June 8, 2012 and
    the sentence imposed on January 13, 2015 by Justice R. Dan Cornell of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

There is no dispute that the appellant stabbed two people. He was
    prosecuted on two counts of attempted murder. He was acquitted on one count and
    convicted of aggravated assault on the other. He was declared a dangerous
    offender and received an indeterminate sentence.

[2]

The appellant raises two grounds on his conviction appeal.

[3]

First, he argues that the two verdicts are irreconcilable. We do not
    agree. There was a logical basis upon which the jury could arrive at the
    verdicts. Given the variances in the evidence as it applied between the
    victims, and considering the legal instructions given, the different verdicts
    were available. While the stabbings occurred generally at the same time, there
    was evidence that the appellant seemed unaware of the second victims presence
    and that he was simply lashing out. The jury may well have had a reasonable
    doubt about the appellants
mens rea
on this count or about whether the
    appellant acted in self-defence. This ground of appeal must fail.

[4]

Second, the appellant argues that the trial judge erred in failing to
    limit the use that could be made of bad character evidence. The impugned evidence
    relates to the appellants assault of the complainant over fifteen years prior
    to trial. The appellant maintains that the failure to give the jury guidance on
    the use of this evidence ran the risk that the jury engaged in improper
    propensity reasoning. For the following reasons, we do not agree:

(i)

The evidence of the prior
    assault lost almost all significance in the context of the entire trial.

(ii)

The appellant agreed to the
    admission of the evidence and did not ask for a mid-trial instruction.

(iii)

While not in relation to this
    specific piece of evidence, the jury was provided with an early mid-trial
    instruction about character evidence and the fact that [w]e do not determine
    guilt or innocence based on whether someone is a good or bad person. The jury
    was specifically instructed not to follow propensity reasoning.

(iv)

The jury was instructed during
    the charge to avoid propensity reasoning, specifically as it relates to the
    appellants criminal record.

[5]

We are satisfied that the jury would have understood how to and how not
    to approach the evidence relating to the prior assault. Moreover, the parties
    were in the best position to understand the impact of this evidence and whether
    it had any prejudicial effect. The charge was thoroughly vetted in advance and
    the appellant did not suggest any deficiencies on this point. No objection was
    taken following the charge. This ground of appeal cannot succeed.

[6]

The appellant also appeals from his designation as a dangerous offender.
    He maintains that the trial judge failed to make sufficient factual findings
    regarding the index offence. The appellant argues that the trial judges
    failure to do so deprived him of the ability to adequately assess whether the
    statutory criteria in s. 753(1)(a)(i) and (ii) of the
Criminal Code
were
    met.

[7]

We disagree. The trial judge made all factual findings necessary in the
    circumstances. He concluded that the appellant used a knife to commit a
    violent assault  and inflicted serious injury upon [the victim]. While the
    trial judge could have gone further, this factual finding was sufficient to
    establish the pattern of behavior necessary to make the dangerous offender
    finding. Even if the trial judge had made further factual findings, including
    that the appellant acted in self-defence but merely used excessive force in
    doing so, it would not have changed anything. On any version of the facts, the appellants
    conduct was part of a pattern of persistent conduct sufficient to meet the
    statutory criteria for a dangerous offender designation. The trial judges
    conclusion was reasonable.

[8]

The appeal from conviction and sentence is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

Fairburn J.A.


