Court of Appeal for Ontario

Date: 2018-01-15 Docket: C61539

Judges: Laskin, Cronk and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Darryl Bebonang Appellant

Counsel

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 victim's presence and that he was simply lashing out. The jury may well have had a reasonable doubt about the appellant's 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 appellant's 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 appellant's 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 judge's 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 appellant's conduct was part of a pattern of persistent conduct sufficient to meet the statutory criteria for a dangerous offender designation. The trial judge's conclusion was reasonable.

[8] The appeal from conviction and sentence is dismissed.

"John Laskin J.A."

"E.A. Cronk J.A."

"Fairburn J.A."