



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Primmer, 2018 ONCA 306

DATE: 20180327

DOCKET: C62678

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Primmer

Appellant

Richard Litkowski and John Fennel, for the appellant

Megan Petrie, for the respondent

Heard: March 20, 2018

On appeal from the conviction entered on August 27, 2015
    by Justice Thomas McKay of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of assault causing bodily harm as a result
    of an altercation in a correctional facility. The appellant was recognized as
    the heavy on his range, the inmate who was respected by the guards and other
    inmates to serve food and to maintain order and control within the unit. The
    complainant, a recognized troublemaker, came into the unit and, by his words
    and actions, challenged the appellants authority. The appellant responded by
    punching the complainant in the head 25 to 30 times with his fists. The attack
    was captured and recorded by a security camera.

[2]

The sole defence at trial was self-defence. The trial judge reviewed the
    evidence in some detail and concluded that the Crown had disproved self-defence
    beyond a reasonable doubt.

[3]

The principal ground of appeal raised by the appellant is the submission
    that the trial judge failed to pay adequate attention to the evidence relating
    to the prison setting and the inmates code. The appellant contends that the
    inmates code establishes certain norms and standards which required the
    appellant to use force to respond to the complainants challenge or face at
    some point a violent attack from the complainant or the other inmates.

[4]

We disagree with that submission. The trial Judge conducted a careful
    review of the appellants evidence relating to the prison context and what the
    appellant claimed to be the motivation for the attack.

[5]

No issue is taken with the trial judges analysis of the legal elements
    for self-defence. The trial judge concluded that the appellant launched what
    amounted to a pre-emptive attack on the complainant to maintain his status as
    the heavy and to discourage the complainant or any other inmate from
    challenging that status. At the point he assaulted the complainant, the
    complainant had done nothing more than use disrespectful language and threaten
    future violence.

[6]

The prison setting and the inmates code had to be considered as
    crucial contextual factors in assessing self-defence. However, that context
    does not trump the
Criminal Codes
legal definition of self-defence.

[7]

The reasons of the trial judge demonstrate that he did take the prison
    context into account but that he found that the Crown had proved beyond a
    reasonable doubt that the legal elements of self-defence were not met. It was
    open to the trial judge to find beyond a reasonable doubt that the appellant
    had acted not in self-defence, but out of anger and a desire to maintain his
    status. (para. 73) Given the timing and nature of the assault, the trial judge
    was also entitled to find that the Crown had proven beyond a reasonable doubt
    that the appellants actions were not reasonable in the circumstances (para.
    74). On this record, the trial judge was entitled to find that [t]he use of
    force [by the complainant] was not imminent and that [t]he nature of the
    threat was more bravado than a threat that [the complainant] appeared capable
    or motivated to carry out (para. 74).

[8]

We do not accept the submission made in the appellants factum that the
    trial judge made a
W.D
. error. While the trial judge did not recite
    the
W.D.
test, that is not fatal provided the trial judge properly
    applies the burden of proof. The trial judge did so in this case. He clearly
    stated and understood that the burden of disproving self-defence remained
    throughout on the Crown and it is apparent from his reasons that the
    appellants evidence did not leave him with a reasonable doubt.

[9]

At one point in his reasons, the trial Judge indicated that he had seen
    the complainant on a pretrial attendance and observed that he would not be
    described as a highly fit man (para.66). The complainant did not appear at the
    trial to testify and the appellant argues that the trial judge erred by relying
    on evidence outside the record. While the trial judge should not have relied on
    his pretrial observation of the complainant we are not persuaded that this
    caused any prejudice to the appellant. The appellant himself admitted in
    cross-examination that the complainant was not as physically fit as he was.
    Moreover there was other evidence, including the video, from which the trial
    judge could readily conclude that the complainant was no physical match for the
    appellant.

[10]

For
    these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe
    J.A.
G. Pardu J.A.

Fairburn J.A.


