minicounsel

COURT FILE NO.: 134-10

DATE: 20150113

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

DARRYL BEBONANG

Respondent

Philip Zylberberg and Guy Roy, for the Crown

Terry Waltenbury and John Saftic, for the Respondent

HEARD: May 12, 13, 14, 15, 16, 21, 22, 23 and October 6, 2014

DECISION ON APPLICATION

Cornell J. (orally):

INTRODUCTION

1Mr. Bebonang was originally charged in an indictment with two counts of attempted murder. The charges arose as a result of a stabbing that involved two complainants. Following a conviction by a jury of one count of aggravated assault, the Crown now seeks to have Darrell Bebonang declared a dangerous offender pursuant to s. 753 of the Criminal Code of Canada.

2The Crown alleges that Mr. Bebonang’s lengthy record of violent criminal conduct, his continued inability to control his violent behaviour, as well as the facts and circumstances surrounding the predicate offence are such that Mr. Bebonang meets the definition of a “dangerous offender” within the meaning of s. 753 of the Criminal Code.

3Both the Crown and defence agreed that this is not an appropriate case to simply impose a determinate sentence for the offence for which Mr. Bebonang has been convicted. The defence submits that it is appropriate that Mr. Bebonang be found to be a long-term offender who would be required to serve an additional sentence in the range of 18 months to 2 years less a day.

4For the reasons that follow, I find that Mr. Bebonang is a dangerous offender who shall be subject to an indeterminate sentence.

FACTUAL BACKGROUND

5Following his release from prison on May 31, 2008, Mr. Bebonang returned to his home community of M’Chigeeng. On March 28, 2009, Mr. Bebonang was convicted of assault and assault with a weapon. As a result of Mr. Bebonang’s desire to undergo rehabilitative treatment at Rockhaven, a recovery home for male alcoholics, Mr. Bebonang received an 18-month conditional sentence despite his extensive criminal record.

6For a number of years, Mr. Bebonang and Joanie Anwhatin have lived in a sporadic common law relationship. Ms. Anwhatin was known to Mr. Bebonang to have a serious drug-abuse problem.

7Mr. Bebonang was concerned about Ms. Anwhatin’s drug use. He testified that he decided to also begin heavy drug use in an effort to demonstrate to Ms. Anwhatin how destructive such behaviour can be.

8On the day of the predicate offence, Mr. Bebonang and Ms. Anwhatin decided to spend the evening in a crack house. A number of people were present, including Michael Debassige and his sister, Sheila Laford.

9The evening passed uneventfully. As people were beginning to leave, a confrontation between Mr. Bebonang and Michael Debassige occurred in a hallway leading to the exit door. Michael Debassige testified that as he was getting ready to leave, Mr. Bebonang approached him and said “do you remember me?” at which point Mr. Bebonang brandished a knife and began to stab Michael Debassige in the head. A struggle ensued with the parties making their way into the living room. The remaining guests left as quickly as possible with the exception of Sheila Laford. According to Michael Debassige, he was repeatedly stabbed by Mr. Bebonang with the result that he was sitting in a prone position on the couch awaiting death. Sheila Laford then interposed herself between Mr. Bebonang and her brother at which point in time Mr. Bebonang proceeded to stab her four times in the chest and abdomen resulting in a collapsed lung.

10Michael Debassige was stabbed 12 times. Sheila Laford was stabbed four times. According to their evidence, they were able to eventually overpower Mr. Bebonang despite their stab wounds and force him outside of the apartment into the hallway.

11Mr. Bebonang told a very different story at the trial. He said that as he and Joanie were about to leave the apartment, Michael Debassige said “do you remember me?” at which point in time he proceeded to head butt Mr. Bebonang. Mr. Bebonang was then “jerseyed” by having his hoody pulled up over his arms and his head. In this defenceless position, he received a number of blows from more than one individual. He was bent over at the waist. As the blows rained down upon him, he noticed a knife on the floor. He grabbed the knife and began to swing it from side to side in an effort to defend himself. His efforts were successful with the result that Michael Debassige and Sheila Laford ended their assault upon him. Mr. Bebonang testified that he was then able to stand upright, un-jersey himself and then proceed to leave the apartment.

12Although their wounds were serious, both Michael Debassige and Sheila Laford recovered from them.

13Mr. Bebonang fled the scene and made his way to Toronto where he was arrested for an unrelated charge.

FACT FINDING

14In approaching the task at hand in determining the nature and extent of the predicate offence, I am faced with the difficulty that the jury does not provide reasons for their verdict. This issue is dealt with in the Criminal Code as follows:

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

15The fact finding issue was addressed by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18:

16This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

17Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

18Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

16The original charges involved two counts of attempted murder. Aggravated assault was also available to the jury as a lesser and included offence. This is the path that the jury chose to follow in connection with the assault upon Michael Debassige. The jury found no criminal conduct by Mr. Bebonang toward Sheila Laford.

17The jury could have arrived at its decision in a variety of different ways. It is possible that they accepted Mr. Bebonang’s assertion of self-defence, but felt that he exceeded the amount of force necessary when it came to defending the assault by Michael Debassige. The jury may have felt that even if Mr. Bebonang was the aggressor, he lacked the necessary intent to support a conviction for attempted murder. The path that the jury followed in coming to its decision is not self-evident.

18In the end, I am left with a finding that Mr. Bebonang used a knife to commit a violent assault upon Michael Debassige and inflicted serious injury upon him.

THE ISSUES

Does Mr. Bebonang meet the criteria set out in ss. 753(1)(a)(i) and (ii) of the Criminal Code such that he should be declared a dangerous offender?
If so, is there a reasonable expectation that a lesser measure falling short of an indeterminate sentence will adequately protect the public against the commission by Mr. Bebonang of murder or a serious personal injury offence?

MR. BEBONANG’S BACKGROUND

19A Gladue report was prepared that provides extensive background information about Mr. Bebonang. Additional information was provided directly by Mr. Bebonang at the time that he testified at the trial and at the time of the dangerous offender application.

20Mr. Bebonang was born of Jeanette Bebonang and Nelson Corbiere on November 9, 1977. Although he is the only child born of this union, he has a half-sister named Debbie Bebonang, who currently resides in Sudbury, Ontario. He was raised in an abusive environment.

21His father was an abusive alcoholic with the result that domestic violence between his mother and father was common place. His parents lived together sporadically in a common law relationship. Following the separation, Mr. Bebonang did not maintain a stable relationship with his father even though they lived in the same community. Mr. Bebonang testified that his father ran whore houses, introduced him to sex at a young age and taught him how to use women for financial gain. Mr. Bebonang’s father died of cirrhosis of the liver caused by alcohol abuse.

22Mr. Bebonang’s mother reports that she was sexually abused at the age of six years old. The Gladue report indicates that Mr. Bebonang’s mother;

… presents an alcohol and drug addiction related to childhood trauma. She acknowledges that her trauma and addiction has (sic) been projected onto Darrell which in turn, has contributed to his substance abuse.

Darrell reports that his mother was constantly in a state of emotional instability, particularly while intoxicated. She was frequently absent from the family home and hence left Darrell unsupervised, “wild and wandering”. His mother was known to be absent for long periods of time while drinking and as a result, he would be without food. He frequented the home of his maternal grandparents to eat and for a source of company but they too, were living with an alcohol addiction and regularly had parties in the home. On occasion his mother would secure a babysitter for he (sic) and his sister. In some instances, Darrell would babysit other community children where parents were out drinking. He recalls that more often than not, the parents would return home intoxicated and violence would erupt. Darrell would hide himself and the children he was caring for in an effort to evade injury. He has also been placed in a care giving role to younger cousins while his aunt or uncle had been drinking. He again was witness to domestic violence following their return. He has seen many women, including his mother, beaten by their partners and beaten with objects of opportunity such as beer or liquor bottles.

In addition, his most prevalent memory of his grandparent’s home was during a party. The home was packed with people drinking and he was made to be the “beer boy” and fetch beer for guests and family members. He expressed that during the party, a fight broke out and he became so scared that he was shaking and wanted to hide. The adults in the home were fighting inside and out. During the violence, a man told him to disregard the fights and grab more beer. Darrell was told by the man that violence is inevitable and that he shouldn’t be scared. He was told that while he was fetching beer for people at the home, he should take drinks during his delivery so that he too would be intoxicated when violence erupted and it wouldn’t seem so scary. Darrell also recalled seeing men being beaten and the women cheering the aggressors. He indicates that this specific incident taught him that alcohol is an escape and that violence promotes acceptance. Darrell was approximately 10 years old. He reports regular aggressive behaviour since.

Furthermore, Darrell recalls eating from his grandparent’s vegetable garden and asking them and community members if they had seen his mother to which they responded “she’ll be back.” Darrell was left with a feeling of loneliness and insecurity. Darrell spoke with compassion when he said that his mother “grew up with a sickness just like I did. The sickness of alcoholism, manipulation and no love. My mom was a little girl living in a woman’s world. She got stuck with kids and we got left and dragged into her world. She couldn’t let go of partying.”

23Mr. Bebonang’s mother was known to drink heavily during her pregnancies.

24Mr. Bebonang struggled in school. There were persistent behaviour problems in class and he was frequently subject to disciplinary measures. Following grade eight, Mr. Bebonang attended the Manitoulin Secondary School. The Gladue report indicates that “by this time, he was well engaged in substance abuse and violence. He spent a mere two months at the grade nine level before he was expelled”.

25Mr. Bebonang is functionally illiterate.

26Mr. Bebonang has no employment history to speak of. When he needs money, it is reported that he is “known to engage with women who are working in the sex trade to fund his addiction. He reports that while he is not incarcerated, he is far too transient to secure social assistance and as such is the reason why (sic) pursues women in the sex trade.”

27The evidence before me discloses that Mr. Bebonang began to consume alcohol somewhere between 8 and 12 years of age. By the time he was in high school, he had developed a serious alcohol abuse problem. This was compounded by an addiction to prescription pills and cocaine.

Criminal Record

28Mr. Bebonang has an extensive criminal record that began when he was a youth. The following offences are advanced by the Crown as being relevant to this application:

Date of Offence

Age

Conviction

Circumstances

1994 October 24

Assault Weapon Exhibit 22 Tab F

Struggled with sister over knife and went at third person with knife

1996 February 3

Assault Weapon Exhibit 22 Tab G

Grabbed janitor at shopping mall with both hands around shoulders and pulled knife on her

1997 June 2

Threatening Death Exhibit 22 Tab K

Threatened Michael Debassige while holding liquor bottle and when fleeing

1997 June 20

Prowling at Night Exhibit 22 Tab K

Entered two residences frightening the homeowners

1999 April 10

Break and Enter Exhibit 22 Tab M

Threw rock through window then entered and pulled knife on mentally challenged homeowner demanding beer and threatening to kill

2000 March 2

Weapon Dangerous (2); Threatening Serious

Bodily Harm (2)

Exhibit 22 Tab N

Two-hour standoff with guards at Fenbrook Institution while armed with knife and broom handle, threatening harm to two correctional officers

2001 April 7

Robbery Exhibit 22 Tab O

Stole a sawed off shotgun and used it to force a taxi driver to drive him from St. Alphonse to Montreal

2003 June 29

Assault Causing Bodily Harm Exhibit 22 Tab Q and Exhibit 34

With other inmate assaulted third inmate in institution gym, kicking him after he passed out causing facial fractures

2003 October 31

Assault Peace Officers Exhibit 22 Tab Q

Threw urine at two correctional officers at Donnaconna Institution

2004 December 27

Arson Exhibit 22 Tab Q and Exhibit 35

Started fire in institution yard that required 21 firemen and 4 fire trucks; lasted several hours; caused estimated $70,000 damage

2006 March 21

Assault Peace Officers Exhibit 22 Tab R

Threw urine on two correctional officers hitting both on face and one on arm as well

2009 March 28

Assault and Assault Weapon Exhibit 22 Tab S

Drinking in residence with peers: struck Anthony Bayer with metal sleeve used for weights. Chased Bayer and Michael Hall down road, continued assault on Bayer and assaulted Hall coming to Bayer’s help.

2009 November 13

Aggravated Assault – index offence

Stabbed Michael Debassige 12 times causing near-fatal injuries both to him and to Sheila Laford who came to his aid.

29The result of all of Mr. Bebonang’s various convictions is that he has spent the majority of his adult life within an institutional setting.

CRIMINAL CODE PROVISIONS

30 Section 753 of the Criminal Code sets out the provisions which apply on this application:

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.

Serious Personal Injury Offence

31 Section 752 of the Criminal Code defines “serious personal injury offence” as follows:

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which the offender may be sentenced to imprisonment for ten years or more.

ANALYSIS

Predicate Offence

32There can be no doubt that Mr. Bebonang used violence against Michael Debassige and that such conduct endangered Mr. Debassige’s life or his safety. As a result, I am satisfied that Mr. Bebonang’s conviction for aggravated assault is a serious personal injury offence.

Pattern of Behaviour

33In order to assess whether or not there has been a pattern, I must examine and consider Mr. Bebonang’s past criminal conduct. In this case, the Crown asserts that it is open to me to find that Mr. Bebonang is a dangerous offender pursuant to either or both ss. 753(a)(i) and (ii). The approach to be taken when assessing the constituent elements of these various sections is set out in considerable detail in R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92, where the Alberta Court of Appeal stated at paras. 109-117:

109What do these sections require in assessing an offender’s past conduct? First, the type of past behaviour encompassed by these sections is criminal behaviour since the predicate offence, a criminal one by definition, must form part of the pattern of conduct. The dangerous offender legislation is directed at those who hurt people through criminal, as opposed to simply anti-social, conduct. The latter cannot be the foundation for a dangerous offender application.

110This takes us to the second point: the quality of the past behaviour. Does all criminal behaviour form part of the pattern? In our view, it does not. We read s. 753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s. 753(a) must be a “serious personal injury offence” (meaning that it itself must meet either a violence or endangerment requirement under s. 752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern.

111Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice.

112As explained by Lambert, J.A. in R. v. Dow 1999 BCCA 177, [1999] B.C.J. No. 569 at para. 24 (C.A.), online: QL (BCJ) in reference to s. 753(a)(i):

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

The one qualification we would add to these comments is that it is not necessary that the past conduct have led to actual injury. Attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may well be adequate.

113Because the pattern of past behaviour must be repetitive (s. 753(a)(i)) or persistent (s. 753(a)(ii)), evidence of one episode of violence or aggression will not suffice: Lyons, supra. This does not mean that it will always be necessary that the offender have a lengthy history of violence or aggression. To the contrary. Depending on the facts, a pattern sufficient to form the basis for predicting future behaviour which threatens others may be found on very few such incidents. [Indeed, under s. 753(a)(iii), which is not relevant here, there is no need for a pattern; one brutal attack may be sufficient.] Generally, however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be: Langevin, supra. We do not suggest that the offences must be of the same kind, that is, for example, a number of robberies. Similarity, as noted, can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims. This explains why the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous: R. v. Jones (J.F.) (1993) 63 O.A.C. 317 (C.A.). [Emphasis in original.]

114Moving from the behavioural component of the pattern contemplated under s. 753(a)(i), we turn to the lack of restraint element. To qualify as part of the pattern, the impugned conduct must show that the offender has failed to restrain his or her behaviour in the past (and that this has led to death, injury or severe psychological damage or at least a likelihood of this harm) and that there exists a likelihood of causing death, injury or severe psychological damage through a failure to restrain that behaviour in the future. Likelihood, in this context, means more than simply a possibility. At the very least, it means more probable than not. [We note that in Lyons, supra at 338, the Court used the “very likely” formulation when dealing with this issue, but in other cases, Jones, supra, and Currie, supra, it used the term “likelihood”.] [Emphasis in original.]

115Under s. 753(a)(ii), the persistent aggressive conduct must show a substantial degree of indifference by the offender with respect to the reasonably foreseeable consequences to others of that behaviour. We agree with the sentencing judge that this section should be read as including a requirement that the Crown prove beyond a reasonable doubt that the evidence discloses a likelihood that the type of aggressive behaviour described will continue in the future.

116There is another dimension to the offender’s conduct which merits special emphasis. The net effect of the threshold requirements under ss. 753(a)(i) and (ii) is that not only is the sentencing judge to consider whether the past conduct is likely to continue. To satisfy the pattern requirements, the conduct must also demonstrate a relatively high level of intractability. As La Forest, J. confirmed in Lyons, supra at 338:

Also explicit in one form or another in each subparagraph of [s. 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added.]

117This reflects Parliament’s intention that not only must the offender have demonstrated a commitment to serious violence or endangerment in the past; the reasons for that behaviour should militate against any reasonable prospect for meaningful change in the future. It is this combination – violence and the likely continuation of that conduct – which, taken together, justify the finding that this offender will likely pose a threat in the future.

Likelihood of Future Violence

34Section 753(1)(a)(i) contains a prospective component. In order to meet the requirements of such section, the Crown must prove a likelihood of causing death, injury or severe psychological damage on other persons through failure in the future to restrain such behaviour. Given the use of the word “likelihood”, the Crown is not saddled with the burden of proving that such offences will be committed, only that there is a present likelihood of such conduct in the future. A useful discussion of this subject was undertaken by Code J. in R. v. Gibson, 2013 ONSC 589, [2013] O.J. No. 490, where he stated at para. 18:

The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite “likelihood” of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility”. See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black's Law Dictionary, 9th Ed. 2009, at p. 1012; D.A. Dukelow, Dictionary of Canadian Law, 3rd Ed. 2004, at p. 723; R. v. H. (J.T.) (2002), 2002 NSCA 138, 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.). When applying this meaning to the “likelihood” test found in s. 753, the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility.

35Code J. quoted from the earlier decision of Laforest J. in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at para. 94:

…It seems to me that a “likelihood” of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J. in R. v. Knight (1975), 1975 1424 (ON SC), 27 C.C.C. (2d) 343 (Ont. H.C.) at p. 356:

I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future -- this, in the nature of things would be impossible in practically every case -- but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct. [Emphasis in original.]

Consideration of the Requirements

36Mr. Bebonang’s criminal conduct began at a young age and has continued unabated throughout his adult life. The 13 offences that are relied upon by the Crown in support of this application all involve an element of violence. The scope of the violence ranges from somewhat benign (the throwing of the urine) to situations where the loss of life was a distinct possibility.

37Five of the convictions involved the use of a knife including the predicate offence which involved the victim being stabbed 12 times. Other offences involved the use of a liquor bottle while uttering a death threat, the use of a sawed off shotgun that was used to force a taxi driver to drive a considerable distance at gunpoint, as well as a metal sleeve used in the March 2009 assault with a weapon.

38Mr. Bebonang has a conviction for arson in 2004. This occurred in an institutional setting. In that setting, arson virtually always involves the risk of serious injury or death.

39The predicate offence involved near-fatal injuries to the victim. All of the other convictions involved the potential for serious harm. As was pointed out in R. v. Neve, actual injury is not required, rather, “attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may well be adequate”.

40The similarity in these various convictions includes the degree of violence and the aggression threatened as well as the harm that was inflicted on the victims.

41The various criminal convictions cover a range of situations and circumstances. These include domestic violence (struggle with sister over knife), neighbourhood violence (prowl at night and pulling knife on mentally challenged homeowner demanding beer and threatening to kill), public violence (grabbed janitor at shopping mall and use of a sawed off shotgun to force taxi driver to drive him to Montreal as well as the predicate offence), institutional violence (the armed standoff with guards, the use of urine on correctional officers and the arson conviction). It is clear that no matter what his surroundings or his circumstances, Mr. Bebonang is simply unable to restrain his violent behaviour.

42I am satisfied that a pattern of repetitive violent behaviour has been established. The factual background reviewed by me is also sufficient to establish the existence of a pattern of persistent aggressive behaviour that includes the predicate offence.

43Mr. Bebonang’s extensive criminal conduct has resulted in injury or severe psychological damage. When I take this and the balance of the evidence into account, I have no hesitation in coming to the conclusion that there is a likelihood of death or injury to other persons or the infliction of severe psychological damage on other persons in the future given Mr. Bebonang’s proven track record.

Failure to Restrain / Substantial Degree of Indifference

44I now turn to the question of whether Mr. Bebonang’s conduct is such that it demonstrates a failure to restrain his behaviour and a substantial degree of indifference respecting the reasonably foreseeable consequences his behaviour has on other persons.

45Shortly after his arrest, Mr. Bebonang was interviewed by Detective Constable Murray on November 29, 2009. Excerpts from the videotaped interview were provided and marked as Exhibit 17. After discussing some prison hardship and the fact that many of the prisoners are now younger and bigger than Mr. Bebonang, he had this to say:

BEBONANG:

You know, and I just say no and I walk away and as soon as they put their hands on me or do anything to me, it’s hard for me to control, I’ll snap, and I black out a lot of times and I fight and do things. It’s just that adrenaline kicks in cuz you know, I died a few times inside, I made it for some reason. So when stuff like that happens, I snap. It’s just – well, it’s a cover, it just snaps. It’s not gonna be me, you know? And I always know and that’s why I always looks like I’m the bad guy, assaulting people and doing things to people, that’s why people look at me “Aw this guy’s fuckin terrible, he’s bad”.

46At a later point in the interview, Mr. Bebonang spoke of the difficulty that he has in functioning in society:

BEBONANG:

And this is how I see it, ya know? I see it’s like I’m not meant to have my freedom, ya know? I try my best even with my temper, my anger, the way I look at life, the way I see how respect should [unintelligible] and taught, I can’t think like that and have my freedom at the same time cuz there’s so much rude people out there. S-, society’s fucked up, it’s gone, like there’s, there’s nothing.

Ya you know, so-, things like that will build me up stronger or, will-, will build the hate back up in ya that’s why I get scared [unintelligible] that’s why my-, my girl, ya know, cause she’s always been there for me, ya know? She calms me down, she’s the only one who can calm me down and make sense, ya know? I wanted to, ya know, go [unintelligible] I’m glad I got caught last night cause evil shit was going through my mind and it was villains that was coming, I was on my way to go get my, my, my stuff, you know hell was gonna break loose.

MURRAY:

Go get your stuff, what do you mean?

BEBONANG:

Ya know, my you know, adrenaline rush, you know, my-, my rush.

MURRAY:

Mmm.

BEBONANG:

You know, let’s get it on, you know, it’s what I wanted to do and it didn’t work out like that.

MURRAY:

Are you glad?

BEBONANG:

Yeah I am, and I’m glad and I’m disappointed ya know cuz I just wanted to take it out on my family. Said okay, give it one more shot, give it one more shot. I could always go out in a blaze of glory anywhere anyways ya know, it doesn’t matter freedom or not, streets or not, jail or not, ya know. I can’t always make my decision anytime I want, when I’m tired.

MURRAY:

Does that-, [slightly leans back in chair and crosses right leg overtop of left leg] does that kinda stuff scare Joanie…

BEBONANG:

Naw.

MURRAY:

Like you now, you know, you said last night you were gonna go out and get yer adrenaline and that, would that scare her?

BEBONANG:

No it wouldn’t scare her, she-, she scared she gonna lose me, ya know?

MURRAY:

Mm Hmm

BEBONANG:

That’s the only thing, ya know? [looks directly at D/Cst. MURRAY while he is speaking] She’s not afraid of me, I’m not afraid of her.

MURRAY:

No, that’s what I mean she’d be afraid of-, that something would be happen to you and that she would lose you.

BEBONANG:

Well she’s been afraid of that for so many years, ya know? With my temper and how I snap…

MURRAY:

[clears throat]

BEBONANG:

Ya know, cus when I snap, I really do. I snap.

MURRAY:

Hard to get back?

BEBONANG:

It’s hard to get back, ‘specially my temper. Like I always-, nobody-, all these psychologists, all these places I went to, professional people they didn’t teach me how to do nothing man, I already took control myself, how I was feeling and I seen nobody was helping me and everybody’s acting like they’re helping me and they weren’t helping me. They were putting me down, backstabbing me in front of the courts and stuff, ya know? They’re hurting me, so I said you know you gotta do it ya know, you gotta get up and do this yourself because …

47Later in the interview when speaking about growing up, Mr. Bebonang had this to say:

BEBONANG:

So I grew up big time, it’s how I grew up. I-, I try to have discipline on myself so it wasn’t bad but I [unintelligible]

MURRAY:

Mm Hmm

BEBONANG:

You know, I was likin it, it was nice, the power and the control and the fear was nice.

MURRAY:

Like of people who came up against you, you mean?

BEBONANG:

Yeah, well, I was jus-, it’s easy ya know? Was like, I see-, I see one guy punk this guy and say oh yeah? Kay, how can I do better?

MURRAY:

Mkay.

BEBONANG:

I make a fuckin noose and put it around your neck drag you around the in yard and skin your skin right off the pavement, you know?

MURRAY:

Mm Hmm

BEBONANG:

Then I stomp on ya.

MURRAY:

Mm Hmm

BEBONANG:

Then I, done my thing.

48Mr. Bebonang recognizes his inability to control his anger and violence. During the exchange with Detective Constable Murray, Mr. Bebonang indicated that in order not to be violent, he had considered chopping off his hand and breaking his legs:

BEBONANG:

And that’s how-, that who-, that’s who I am man, is a person tryin to struggle up and [unintelligible] strict and disciplined with respect and very high pride and loyalty. It’s hard man, and everybody hypocrites around everybody’s this, everybody y’know, it’s hard for me to fuckin live like that man. What do I have to do man? Show me like, fuckin chill. I was gonna chop my hand off too.

MURRAY:

Why?

BEBONANG:

Juss-, to-, so I don’t do nothing, ya know. So I don’t have nothing-,

MURRAY:

Oh my god! So you wouldn’t be violent you mean?

BEBONANG:

Yeh.

MURRAY:

When were you thinkin that?

BEBONANG:

Uh, a couple months ago.

MURRAY:

Well geezus, don’t do that!

BEBONANG:

[unintelligible] started, [unintelligible] my ankles.

MURRAY:

Oh my god!

BEBONANG:

My knees are bad though.

MURRAY:

Seriously.

BEBONANG:

Yeah, seriously. I’m thinkin bout breakin my legs.

MURRAY:

Darrell! It’s not gonna change anything, hurting yourself like that, geez!

BEBONANG:

Well I try ya know, me I try to, ya know, I tried so many years that I’ve been tryin like 15 [fifteen] years, 17 [seventeen] to 20 [twenty] years I been tryin to cope with myself to handle myself and everything, ya know. But it’s gettin hard now, it’s just like ya know [clears throat] I rather spend time in-, I don’t mind to [unintelligible] you know, I see people on the street, they’re doin good you know.

49What could be more powerful evidence than the evidence that comes from Mr. Bebonang himself wherein he candidly acknowledges his failure or inability to restrain his violent actions and the substantial degree of indifference that he expresses with respect to the consequences to other persons of his violent behaviour?

50This exchange also underscores the likelihood that such violent behaviour will occur in the future given his candid acknowledgement that he has considered chopping off his hand and breaking his legs in order to bring an end to his violent behaviour.

Psychiatric Evidence

51Dr. Derek Pallandi who has a practice in forensic psychiatry prepared the assessment that had been ordered by me.

52Dr. Pallandi diagnosed Mr. Bebonang as having an Anti-Social Personality Disorder which describes an on-going and persistent personality structure.

53Mr. Bebonang’s Psychopathy Check List – Revised (PCL-R) was 29. This score placed Mr. Bebonang one point below the cut-off for a psychopathy designation.

54Dr. Pallandi also administered the Violence Risk Appraisal Guide (VRAG). Mr. Bebonang placed in the eighth of nine “bins”. This places Mr. Bebonang in a group that has been shown statistically to be at high risk of violent recidivism: 82 per cent over a ten-year period. I note that this probability is actuarial in nature and is not to be interpreted as the predicted result for Mr. Bebonang as an individual.

55In addition to actuarial considerations, Dr. Pallandi also looked at various dynamic factors. These included the fact that Mr. Bebonang is functionally illiterate, has manifestly antisocial attitudes both inside and outside institutional facilities, has no work history or vocational training, he has little, if any family or community support and that on a long-term basis, Mr. Bebonang has drug and alcohol abuse disorders.

56It was the opinion of Dr. Pallandi that these clinical or dynamic factors support the actuarial findings.

57It is the considered opinion of Dr. Pallandi that Mr. Bebonang’s risk for violent recidivism over the long term is in the high to very high range.

58Counsel for the defence raised various concerns about the weight to be placed upon Dr. Pallandi’s evidence. These include:

He was not aware of the facts of the index offence;
He had a lack of information about the progress made by Mr. Bebonang while on remand;
He was erroneously of the view that Mr. Bebonang lacks insight;
He has limited experience dealing with Aboriginals and those with FASD;
He placed undo weight on the VRAG;
He used a definition of “violent recidivism” which included common assault and was thus over inclusive for our purposes;
He placed undo weight on the HARE Psychopathy Checklist; and
He relied upon matters not proven in evidence.

59I have taken all of these factors into consideration in assessing the weight that is to be given to Dr. Pallandi’s evidence.

Previous Assessments

60Although Dr. Pallandi’s evidence was the only psychiatric evidence that was tendered upon the application, I also had the benefit of various psychological reports that were prepared in 1994 and 1995.

61Dr. Paul M. Valliant prepared a psychological assessment dated November 30, 1994. At that time, Mr. Bebonang was a youth in custody awaiting trial for two counts of assault. According to the report, alcohol and illicit substances were consumed prior to the offence. While in custody, Mr. Bebonang had been referred to the Behaviour Management Unit on or about November 13, 1994, because of aggressive behaviour. It was reported that Mr. Bebonang had “been in a classroom and following a remark made by a fellow student, had kicked the desk and threatened to kill the student. He was then taken to isolation and placed into physical restraints. At that time he was completely out of control and had to have a helmet placed on his head so that he would not injure himself”.

62Dr. Valliant reports:

During this evaluation, this youth alluded to sadistic and aggressive tendencies. On one of the questionnaires he was asked if he were ever cruel to animals. Darrell replied that he was cruel to female animals. When questioned further about this he stated that he “gets rid of them”. On another question it was asked whether he would get angry if someone played a practical joke on him. Darrell replied that if someone made a “fool” out of him in front of others, he would have to “kill” him.

63Dr. Valliant concluded by saying “examinations of this youth profile show that he was elevated on the psychopathic deviant scale. Individuals with this elevation have a higher probability of problems with adjustment. Characteristically, they are social deviant and become involved in conflict with society because of impulsiveness, rebelliousness, and depression and guilt over their situation.”

64While in the Brookside Youth Centre, a report was prepared by J.E. Mack, Chief Psychologist. The report concludes by saying:

He is a young man with a self-admitted fascination with alcohol abuse. Its effect appears to enhance his own aggressiveness. While limited verbally, it appears Darrell has been able to act as leader among his peers and this may well be a position he may seek to achieve. Conflicts with both peers and staff may be a regular part of his existence and these may escalate to physical aggression.

65These predictions came true. I need not dwell on Mr. Bebonang’s acts of physical aggression as they are well documented. While in an institutional setting, the evidence indicates that Mr. Bebonang has tried to maintain a leadership position.

66Finally, I was provided with a psychological contact note prepared by Glenn J. Baubarger, Chief Psychologist in November of 1995. The background information includes many behaviour reports for fighting and threatening. Even at that stage, Mr. Bebonang reported that he was working very hard to control his temper. Hindsight being what it is, we now know that Mr. Bebonang has been unable to do this. Even at that early stage, Mr. Bebonang expressed a desire to go to the Rainbow Lodge which is the native alcohol treatment program in Wikwemikong. As will be documented later, Mr. Bebonang has had many failed attempts at rehabilitative therapy.

Dangerous Offender Designation

67Where the Crown seeks to have an individual declared a dangerous offender, the overriding consideration is the protection of the public: See R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at paras. 14, 15, 26 and 38.

68The Crown has the burden of establishing beyond a reasonable doubt that Mr. Bebonang meets the dangerous offender criteria set out in s. 753(1) of the Criminal Code.

69I have considered Mr. Bebonang’s lengthy and virtually uninterrupted record of violent criminal conduct. I have considered only those convictions that have involved violence and aggression. I have considered the nature of the offences as well as the circumstances under which they were committed. I have considered the injury or harm that has been caused by Mr. Bebonang’s criminal conduct. The record itself speaks for Mr. Bebonang’s inability to control his violent behaviour. Lest there be any doubt about this, Mr. Bebonang’s own words in the form of his disclosure to Detective Constable Murray make it abundantly clear that Mr. Bebonang only knows one path and that is the path of violence without regard for the consequences that might result from his actions. This pattern is so well entrenched and his ability to restrain his violent behaviour is so limited that he has considered chopping off his hand and breaking his legs in order to put a stop to it.

70History is the best predictor of future events. Mr. Bebonang’s uninterrupted record of violence and incarceration from the time that he was a teenager in and of itself is clear evidence of the likelihood that such violent behaviour will continue in the future. When Mr. Bebonang’s history is considered along with all of the other factors that I have taken into consideration, the evidence overwhelmingly establishes that there is a likelihood that Mr. Bebonang’s violent conduct will continue in the future along with the likelihood that such conduct will cause death, injury or inflict severe psychological damage on other persons.

71On the evidence before me, and for the reasons previously set out, I am satisfied beyond a reasonable doubt that the requirements of s. 753.(1)(a)(i) have been established in that:

i. Mr. Bebonang has engaged in a pattern of repetitive behaviour, including the predicate offence;

ii. such conduct shows a clear failure or inability to restrain his behaviour; and

iii. there is a likelihood of him causing death or injury or severe psychological damage to others in the future as a result of his failure or inability to restrain his behaviour.

72Further, I am satisfied beyond a reasonable doubt for the reasons that I have outlined that the requirements of s. 753(1)(a)(ii) have also been established on the evidence before me in that I find there is:

i. a pattern of persistent aggressive behaviour exists, including the predicate offence;

ii. that shows a substantial degree of indifference on Mr. Bebonang’s part with respect to the reasonably foreseeable consequences to other persons of his behaviour.

73I am satisfied that Mr. Bebonang meets the criteria under both ss. 753(1)(a)(i) and (ii) of the Criminal Code. In view of this, I find him to be a dangerous offender.

DISPOSITION OPTIONS

74Having found Mr. Bebonang to be a dangerous offender, there are three disposition options available to me as set out in s. 754(4) of the Criminal Code. In this particular case, it has been agreed that the determinate sentence option does not apply with the result that the remaining choices are either an indeterminate sentence, or a determinate sentence along with a long-term supervision order.

75Having determined that Mr. Bebonang is a dangerous offender, I am required by s. 753(4.1) to impose an indeterminate sentence unless I am satisfied that the public can be protected by some lesser measure against the commission by this offender of a serious personal injury offence.

76In R. v. R.S., 2014 ONSC 6350, I made the following observations:

56In 2008, amendments to the dangerous offender provisions took effect. These amendments removed the prior discretion to decline to declare a person a dangerous offender under certain conditions. Now, that discretion may only be exercised when determining the appropriate sanction to impose following a dangerous offender designation. Throughout the various versions of the dangerous offender legislation, the overwhelming concern was for the protection of the public. This means that the emphasis has been on prevention rather than the usual sentencing considerations of rehabilitation, denunciation and deterrence. The approach to be taken in this type of application is succinctly stated by Moldaver J.A. (as he then was) in R. v. D.V.B., 2010 ONCA 291, [2010] O.J. No. 1577, at para. 58:

[58] In sum, if persons who are otherwise highly dangerous cannot meet the relatively modest requirements of s. 753.1(1)(c) in the generous timeframe allotted by Parliament, then in my view, they should be declared dangerous offenders and given an indeterminate sentence. As my colleague Cronk J.A. explained in R. v. Little (2007) 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 70 (leave to appeal to the S.C.C. denied April 24, 2008, [2008] S.C.C.A. No. 39):

The Court is required on a dangerous offender application to balance the liberty interest of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: In a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.

77Unlike most criminal proceedings, there is no burden of proof on either party at this stage of the proceeding. This is an issue for me to determine within the exercise of my discretion based on all of the evidence tendered upon the application: see R. v. F.E.D., 2007 ONCA 246, 84 O.R. (3d) 721, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 568, at paras. 53-55.

Statutory Provisions

78 Sections 753(4) and (4.1) of the Criminal Code provide as follows:

753 (4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

79The end result of the application of these sections is that the remedial discretion that I have to impose a proper sentence is now subject to the mandatory provision found in s. 753(4.1).

80The evidence must show a reasonable expectation that a lesser measure will be adequate. In approaching this subject, I adopt the approach outlined in R. v. Taylor, 2012 ONSC 1025, [2012] O.J. No. 1564, at para. 356, where Wilson J. states:

I conclude that to meet the statutory test in s. 753(4.1) I must be satisfied that there is a reasonable expectation, defined as a confident belief for good and sufficient reason based upon the evidence that a penitentiary sentence followed by a 10 year supervision order will “reduce the threat to life, safety or physical or mental well-being of other persons to an acceptable level”. To reduce the threat to acceptable levels, the evidence must disclose evidence of treatability applying the three-part test enunciated in R. v. McCallum, at para. 47, and in R. v. G.L. at para 42.

81The three elements outlined in R. v. McCallum (2005), 2005 8674 (ON CA), 196 O.A.C. 101, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 145, are set out at para. 47. There must be evidence of treatability that is more than an expression of hope. The evidence must indicate that the offender can be treated within a definite period of time. Finally, the evidence of treatability must also be specific to the offender.

Factors Favouring a “Lesser Measure”

82Counsel for Mr. Bebonang has submitted the following:

In applying the test of “reasonable expectation of a lesser measure” it is important to recognize that we are talking about at some point in the future, as opposed to immediate release. Having regard to the gains made by Mr. Bebonang, his obvious and expressed insight during the hearing, and the resources available to him, there is ample evidence supporting a reasonable expectation that a lesser measure will adequately protect the public, including:

Mr. Bebonang has begun to open up and expressed his desire for change to numerous people, including this Court;
Notwithstanding the limited resources available to him while on remand, Mr. Bebonang has immersed himself in his native culture, participated in 1 to 1 counseling sessions with NILO, sweat lodges, drumming, and pipe ceremonies;
Mr. Bebonang’s behaviour in custody has improved (Nurse Fran Lejeunesse of the Sudbury District Jail);
Mr. Bebonang has taken an anger management course and has been practicing the tenets thereof;
Mr. Bebonang has been taking prescription medication to assist with alcohol addiction;
Mr. Bebonang is aware of his problems with addictions and violence and committed to addressing them;
The evidence of Dr. Pallandi, in cross-examination was that if Mr. Bebonang “bought in” and committed himself to appropriate programing and counseling, took programming while under a sentence, and followed up with appropriate program following release then he would be optimistic that there would be a reasonable expectation of adequate control in the community;
Mr. Bebonang has now been diagnosed with Fetal Alcohol Spectrum Disorder. His needs have thus been better identified and there are specific resources in his home community to deal with his issues;
Mr. Bebonang is prepared to take appropriate programming in a custodial setting prior to release;
Mr. Bebonang’s stressors, financially will be reduced, as he will be set up with an ODSP worker as part of the resources available in his home community;
Mr. Bebonang has realized this his co-dependant relationship with Joanie Anwhatin is a barrier to his recovery and he is severing that relationship;
There are follow-up programs for addictions and violence available in the community through Corrections Services Canada and Mr. Bebonang is prepared to take such programing.

Factors not Favouring a “Lesser Measure”

Psychiatric Evidence

83The only psychiatric evidence that was put forward for my consideration was the evidence of Dr. Pallandi. Dr. Pallandi’s opinion is that based upon both actuarial and clinical factors, Mr. Bebonang’s risk for violent recidivism over the long-term is in the high to very high range.

Personal Circumstances

84As has been noted, Mr. Bebonang is functionally illiterate. He has never held a regular job and has no job skills to speak of. He has no family or community support to speak of. To the contrary, the evidence discloses that Mr. Bebonang chooses to spend his time with people of similar background and with similar problems.

85He began to abuse alcohol at approximately ten years of age, something that was recognized by him in 1994 when he sought admission to the Rainbow Lodge. When he drinks, the evidence discloses that he loses his ability to control his violent behaviour. Mr. Bebonang self-reports the use of cocaine and the abuse of prescription drugs.

86Having spent a good portion of his teenage years and most of his adult life in an institutional setting, Mr. Bebonang has become highly institutionalized and has had great difficulty in functioning in day to day society.

Criminal Record

87It is fair to say that Mr. Bebonang’s criminal record continues on an almost uninterrupted basis since he was a youth. The record contains many convictions for many serious, violent offences. The continuity, variety and serious nature of the offences demonstrates a clear pattern of violent behaviour that is beyond Mr. Bebonang’s ability to control. This is recognized by him when he stated that he was prepared to cut his hand off and break his legs in order to stop his violent behaviour.

88The predicate offence represents an escalation of his violent behaviour which is clear evidence that he has failed to learn any lessons from his previous periods of incarceration.

Deterrence

89It is clear that both the provincial and federal sentences that have been imposed have failed to have any deterrent effect upon Mr. Bebonang.

Rehabilitative Programs

90On behalf of Mr. Bebonang, it was suggested that if a sentence of 18 months to 2 years less a day was imposed, Mr. Bebonang could take certain programs offered within the provincial system. Mr. Bebonang has been down that road many times without any success whatsoever. The Crown’s Synopsis contains an accurate summary of the various efforts at programming and rehabilitation that Mr. Bebonang has undertaken:

Waseskun 2001

There is a basis for his pessimism. Over the past 15 years, Mr. Bebonang has been out of custody on three occasions, with poor results. In 2001, he was released to complete his penitentiary sentence at the Waseskun Healing Center. This is an aboriginally-based institution designed to help aboriginal men, often but not always offenders, to regain balance in their lives. Its approach to therapy is holistic and it is well-regarded by Corrections Canada. All of the evidence showed it to be an excellent facility for Mr. Bebonang, who expressed a strong motivation to participate in its program.
Mr. Bebonang lasted about 43 days at Waseskun. He refused to participate in the Group Component of the healing program because of his capacity for violence against sex offenders who disclosed their histories in his presence. Instead, additional individual therapy sessions were scheduled for him. Nonetheless, he engaged in aggressive and threatening behaviour towards other residents; finally, a directive was issued to him that he would be required to leave if any further such acts occurred. He left the program without leave and committed the April 7, 2001 offences. Afterwards, he explained that his decision to leave was an accumulation of his need to escape the pressure of the therapeutic process – he was unable to accept the trust and respect provided by the staff and unable to handle his deep-rooted emotions that the healing program opened up.

M’Chigeeng 2008 – 2009

His next return to the community was for a ten-month period from May 31 (or June 1), 2008, until he committed the March 28, 2009 offences. During that period, he was not subject to any court orders. He lived in his home community and did not take advantage of any community rehabilitative programs or programs for his own advancement. On his own evidence, he had five good months after leaving the institution, and then fell back on old patterns of behaviour, precipitated in part by the resumption of cohabitation with Joanie Anwhatin, culminating in the March 28, 2009 incident.

Rockhaven 2009

He was in custody for four months before being sentenced on the March 2009 charges. At that time, he was motivated to accept rehabilitative programming. He spoke at length to the sentencing court about his awareness of his need for help and his desire to avoid returning to old patterns. He had a plan that involved living at Rockhaven, a recovery home for male alcoholics, and using it as a base for further substance abuse rehabilitation, literacy programming, traditional aboriginal programming and mental health counselling. Justice Renaud was persuaded to impose an 18-month conditional sentence notwithstanding Mr. Bebonang’s criminal record.
He lasted about 47 days at Rockhaven. According to the Rockhaven staff, he was directed to leave because of aggressive conduct. According to Mr. Bebonang, he chose to leave of his own accord. On either account, the entire rehabilitative plan came to an abrupt end on September 30, 2009. For the next 1 ½ months, his life was chaotic. He and Ms. Anwhatin were unable to maintain a stable residence. He did not complete an application for Native Horizons, an aboriginally-based substance abuse rehabilitation facility. Although he reported to his conditional sentence supervisor, she identified him as being at a very high risk. On November 13, he committed the index offence, just three months after being placed on the conditional sentence. Afterwards, he admitted to having fallen back into drinking and to having started taking heavy drugs out of sympathy for Ms. Anwhatin.

Treatability

91According to R. v. McCallum, there must be evidence of treatability that is more than an expression of hope, the evidence must indicate that the offender can be treated within a definite period of time and finally, the evidence of treatability must also be specific to the offender. On the evidence before me, none of these three elements have been satisfied. Other than Mr. Bebonang’s stated desire to change, there was no evidence of treatability. There was no evidence that Mr. Bebonang could be treated within a definite period of time. There was no evidence of treatability that was specific to Mr. Bebonang.

Protection of the Public

92In R. v. F.E.D., the Ontario Court of Appeal indicates that if the court is “uncertain whether that requirement is satisfied (reasonable possibility of control of risk in the community) … the sentencing judge should refuse to exercise the discretion”: see also R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259 and R. v. Wormell, 2005 BCCA 328, 198 C.C.C. (3d) 252, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 371. Although those cases refer to the standard set out in s. 753.1(1)(c) of the Criminal Code, it is my opinion that the same approach be taken under s. 753(4.1).

93In R. v. Gibson, Code J. made the following observation at para. 57 when addressing the issue of adequate protection for the public:

For a lesser sentence to “adequately protect the public”, within the meaning of s. 753(4.1), there would have to be a “reasonable expectation” that P.G.’s risk of re-offending could be controlled by some means other than indefinite detention. The normal means of achieving such control are treatment, community supervision, or the deterrent effect of a fit determinate sentence.

94As previously mentioned, Mr. Bebonang’s record makes it abundantly clear that the deterrent effect of a fit determinate sentence has had no effect upon him.

95Given his lengthy record, Mr. Bebonang has had little opportunity for community supervision. The most recent attempt in the form of a conditional sentence imposed by Renaud J. on the March 2009 charges resulted in Mr. Bebonang leaving Rockhaven after 47 days and thereafter, committing the predicate offence.

96This leaves treatment as the final consideration. Various treatments have been tried and all have failed. Since as early as 1994 and 1995, Mr. Bebonang has taken the same approach each time he finds himself before the courts. He admits that he has a problem and seeks to obtain assistance to deal with the issues that confront him, either in the form of his substance abuse issues or his propensity for violence. Over a period of some 15 years, all of these efforts have failed.

97There is no cogent, reliable evidence that Mr. Bebonang’s violent and aggressive behaviour can be managed or controlled. There is no plan that he can be rehabilitated within a certain period of time. The suggestion that Mr. Bebonang will respond to counselling and programming lies in the realm of speculation only. Apart from some general evidence about programs that are being established for people suffering from Fetal Alcohol Spectrum Disorder, there was no evidence about a detailed support plan for Mr. Bebonang should he be released into the community. All of these concerns highlight the lack of an evidentiary basis to establish the “reasonable expectation” contemplated by s. 753(4.1).

Assessment of the Factors

98Mr. Bebonang certainly presents as a sympathetic figure. During these proceedings, he indicated that he had gained insight into his problems and expressed what I believe to be a sincere desire to change. While in remand, he has completed a basic anger management program. He testified that he has been able to use some of these techniques to manage his anger. A nurse at the jail testified that Mr. Bebonang has been making use of time outs and segregation in order to manage his anger. While I accept that Mr. Bebonang has a desire to change, I am of the opinion that he, at this stage, is simply not capable of doing so.

99Mr. Bebonang suggests that he has immersed himself in his native culture. The reports from 1994 and 1995 indicate that at that time, Mr. Bebonang had immersed himself in his native culture and was participating in smudge sessions. His immersion in native culture began in 1994 and has done nothing to control his violent behaviour.

100Mr. Bebonang asserts that he is aware of his problems with addictions and violence and he is committed to addressing them. Mr. Bebonang was aware of this as early as 1994 or 1995 when he requested admission to the Rainbow Lodge. When given the opportunity to participate in rehabilitative programming, Mr. Bebonang’s record is one of dismal failure.

101A careful consideration of all of the factors leads me to the inescapable conclusion that there is no reasonable expectation that a lesser measure will adequately protect the public from Mr. Bebonang’s violent conduct.

102In view of this finding, I have no alternative but to impose detention in a penitentiary for an indeterminate period.

CONCLUSION

103The Crown’s application to have Mr. Bebonang declared a dangerous offender is allowed. An indeterminate sentence of imprisonment is imposed pursuant to ss. 753(4) and (4.1).

104I point out that this is not the equivalent of a life sentence. Mr. Bebonang has indicated that he recognizes that he needs help to deal with his substance abuse and anger management issues. He has taken some small steps in this direction. If Mr. Bebonang is serious about his desire to change his life, he will avail himself of the various programs that are open to him within the institutional setting. A first step would be for him to improve his literacy skills. This will require him to cascade down to a medium security facility. This will require Mr. Bebonang to govern his behaviour while incarcerated and demonstrate that he is capable of anger management. The onus now rests upon Mr. Bebonang to demonstrate that he can make the changes that are necessary in order for him to put himself in a position where he can be considered for release into the community.

Ancillary Orders

105It is also appropriate that the following ancillary orders be made:

That Darryl Bebonang be prohibited for life from possessing any firearms, weapon or ammunition as defined in s. 109 of the Criminal Code.
That the appropriate authority be authorized to take bodily substances from Darryl Bebonang pursuant to s. 487.051 of the Criminal Code.
That an order issue under s. 743.21 of the Criminal Code preventing Darryl Bebonang from communicating directly or indirectly with Michael Debassige and Sheila Laford.
That a disclosure order be made pursuant to s. 760 of the Criminal Code in the form attached and marked as Schedule “A”.

The Honourable Mr. Justice R. Dan Cornell

Released: January 13, 2015

Schedule “A”

Court File No. 134/10

SUPERIOR COURT OF JUSTICE

(Northeast Region)

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

and -

DARRYL BEBONANG

Respondent

COURT ORDER

s. 760 Disclosure to Correctional Service of Canada

WHEREAS Darryl Bebonang was found guilty in Sudbury, Ontario, on June 8, 2012, of aggravated assault.

AND WHEREAS there was an application on behalf of the Attorney General of Ontario pursuant to s. 753(1) of the Criminal Code of Canada to have Darryl Bebonang declared a dangerous offender;

AND WHEREAS the Court finds Darryl Bebonang to be a dangerous offender pursuant to ss. 753(1)(a)(i) and (ii) of the Criminal Code of Canada:

THIS COURT ORDERS, in accordance with s. 760 of the Criminal Code of Canada, that:

A copy of all reports written by psychiatrists, copies of all exhibits filed during the hearing and any observations of the Court with respect to the reasons for the finding, together with a transcript of the reasons for decision of the trial, be forwarded to the Correctional Service of Canada as soon as practicable.

Dated at the City of Greater Sudbury this 13th day of January, 2015.

The Honourable Mr. Justice R. Dan Cornell (SCJ)

CITATION: R. v. Bebonang, 2015 ONSC 195

COURT FILE NO.: 134-10

DATE: 20150113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

DARRYL BEBONANG

Respondent

DECISION ON APPLICATION

Cornell J.

Released: January 13, 2015