Court of Appeal for Ontario

Date: 2018-03-27 Docket: C62678

Judges: Sharpe, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Justin Primmer Appellant

Counsel

For the Appellant: Richard Litkowski and John Fennel

For the Respondent: Megan Petrie

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 appellant's 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 "inmate's code". The appellant contends that the "inmate's code" establishes certain norms and standards which required the appellant to use force to respond to the complainant's 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 appellant's 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 judge's 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 "inmate's code" had to be considered as crucial contextual factors in assessing self-defence. However, that context does not trump the Criminal Code's 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 appellant's 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 appellant's 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 appellant's 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.