Court File and Parties

COURT FILE NO.: 11701 DATE: 20170529

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Applicant – and – Justin Derek Primmer Defendant

Counsel: Brian White and Jennifer Moser, for the Crown Ron Ellis and Heather Barnes, for the defendant

HEARD: October 3-7, 11, 12, 14, 17, 19, 20, 21, 2016 and February 24, 2017 at London, Ontario

MITCHELL, J. : (ORALLY)

DECISION ON DANGEROUS OFFENDER APPLICATION

1. Introduction

[1] The Crown seeks an order declaring Justin Primmer a dangerous offender and imposing a sentence of detention in a penitentiary for an indeterminate period pursuant to s. 753 of the Criminal Code of Canada (the “Code”). To support its request, the Crown relies on Mr. Primmer’s extensive criminal record and, in particular, a series of intimate partner violent offences committed by him over the period April 2013 through January 2014, including the predicate offences.

[2] Mr. Primmer seeks an order that this application be dismissed and that he be sentenced to a fixed term of imprisonment.

[3] In the alternative, he seeks to be designated a long-term offender pursuant to s. 753.1(1) of the Code and a determinate sentence followed by a long-term supervision order be imposed.

[4] In the further alternative, if designated a dangerous offender, he seeks a sentence of a fixed term of imprisonment, followed by a long-term supervision order.

2. Overview

[5] Justin Primmer is 33 years of age. His first offences were thefts committed at the age of 12. His criminal record spans 18 years and includes 47 convictions, 10 of which are for violent offences and 21 of which are for failing to comply with parole or probation orders.

[6] He has spent close to 14 years of his adult life in custody. For the most part, when not in prison, Mr. Primmer has been subject to probation or parole orders. Only seven months of his adult life have been spent in the community without supervision. A summary of his adult convictions is as follows:

• On July 20, 2002 at the age of 18 and while in custody on youth offences, Mr. Primmer assaulted another inmate, James Young, and was convicted of assault on October 21, 2002. While on probation for the assault on Mr. Young, Mr. Primmer assaulted James Bradley and following a guilty plea on July 21, 2003 was sentenced to three months in jail. A few weeks following his release from custody on this assault conviction and while on probation, Mr. Primmer stabbed Bill Welch to death. He pleaded guilty to manslaughter.
• Mr. Primmer then spent a number of years in the penitentiary and was released on October 5, 2012 being his warrant expiry date. Mr. Primmer managed to remain offence-free for less than seven months before committing the assault causing bodily harm on T.E. on April 28, 2013. Less than a month after the first assault on T.E., Mr. Primmer committed an aggravated assault on T.E. and an assault causing bodily harm on Desiree Gallagher.
• While on probation for the assault on Ms. Gallagher, Mr. Primmer assaulted S.S. in January 2014 and pled guilty to this assault. Immediately following his release on April 30, 2014, Mr. Primmer was arrested for the predicate offences. Mr. Primmer has remained in custody since that time.
• While in custody, he was charged, tried and convicted of assaulting another inmate at EMDC.

3. Procedural History

[7] On July 9, 2015, following a five-day trial, I convicted Mr. Primmer of the predicate offences. Immediately following his conviction, the Crown indicated its intention to apply pursuant to s. 752.1 of the Code for an assessment report in anticipation of an application by the Attorney General for Ontario for a dangerous offender or long-term offender status designation of Mr. Primmer.

[8] Almost two years have passed since Mr. Primmer’s convictions on the predicate offences; however, it should be emphasized that dangerous offender applications are typically lengthy, complex and time-consuming. Approximately three months following the convictions, the Crown brought the initial application for a remand and assessment with the consent of Mr. Primmer who was at that time self-represented. On this same date, an assessment order was made and on the request of Mr. Primmer, all psychiatric reports and parole board decisions were ordered sealed and subject to a publication ban.

[9] On February 26, 2016, the Crown sought an extension of time for filing Dr. Klassen’s psychiatric report. The extension was granted and Dr. Klassen’s report was filed on March 18, 2016. On March 30, 2016 the Crown sought an eight week adjournment to allow the Attorney General time to consider the Crown’s request. The Attorney General approved the Crown’s request and on July 13, 2016 the matter returned to court and the hearing was scheduled to commence October 3, 2016 with Mr. Primmer representing himself. Before the commencement of the hearing, Mr. Primmer retained counsel.

[10] Thankfully, the hearing of this application took less time than anticipated in large part due to the organization of materials by the Crown into a number of well-organized multi-volume briefs and all counsel’s efficient use of court time in conducting examinations and cross-examination of witnesses. Written submissions of the Crown and the defence were both excellent.

4. The Evidence

(a) The Predicate Offences

[11] Mr. Primmer was convicted of assault of T.E., assault causing bodily harm of T.E., aggravated assault of T.E., and uttering threats. These convictions stem from events which took place during the months of April and May 2013.

[12] A more detailed summary of the facts may be found in my trial decision [^1]; however, a condensed version of those facts will follow. During the Spring of 2013, T.E., then 20 years old, was residing with her young daughter in an apartment in London and was enrolled in college full-time. She met Mr. Primmer through a mutual friend.

[13] A few days after their initial meeting, the victim texted Mr. Primmer and the wheels of this short and volatile relationship were set in motion. Almost immediately, the relationship became intimate with Mr. Primmer regularly staying the night. The couple would consume significant quantities of alcohol and cocaine; with T.E. purchasing the alcohol and Mr. Primmer supplying the cocaine. When together, the couple rarely ventured outside her apartment and interaction between T.E. and her friends was severely restricted.

i) The Beating

[14] During the mid to late morning hours of April 28, 2013, after hours of consuming alcohol and cocaine, Mr. Primmer contacted a friend asking him to supply more cocaine so that he and T.E. could continue partying. The friend supplied more cocaine and the party continued. At some point, the couple found themselves without cocaine and without any money to purchase more, so Mr. Primmer suggested T.E. have sex with his friend in exchange for drugs. T.E. refused and Mr. Primmer became angry striking her on the side of her head with the back of his hand.

[15] The couple then drove the friend home. On the return trip back to the apartment, Mr. Primmer repeatedly punched T.E. on the side of her face and head with his closed fists. The beating continued in the apartment to the point T.E. was beaten unconscious. Upon waking later that afternoon, T.E. discovered her face swollen and virtually unrecognizable. Mr. Primmer admitted to beating her and expressing shock that he beat her because he “doesn’t hit girls”.

[16] Following the beating and before the cutting, Mr. Primmer visited T.E. less frequently; however, became more controlling and restricted her access to her social media accounts and communication with friends. She stopped attending college classes.

ii) The Cutting

[17] A few weeks following the beating, Mr. Primmer was at T.E.’s apartment and the two were consuming beer. After T.E. suggested they end their relationship, Mr. Primmer grabbed a knife and told T.E. to hold out her arms because he wanted to “show her who was boss”. Believing he was joking and would not follow through with the threat, T.E. held out her arms. Mr. Primmer proceeded to cut her left forearm. T.E. pulled her arms back and placed them behind her back. Mr. Primmer then swung the knife around her back and cut her right forearm.

[18] Mr. Primmer took pictures of the cuts on T.E.’s arms using his cell phone. Mr. Primmer intended to use the photos to show others what he was capable of and as a warning not to mess with him. Fearing retribution from Mr. Primmer, T.E. did not seek medical treatment nor did she go to police. She bears permanent scars on her forearms from the cutting.

[19] T.E. eventually did report the assaults and related offences in February 2014. As earlier noted, Mr. Primmer was formally charged with the predicate offences and remanded into custody on May 1, 2014. In addition to the assaults, the predicate offences also include a conviction for uttering a threat to destroy property of T.E.’s father.

iii) Victim Impact

[20] The Crown tendered the victim impact statements of R.E., the victim’s father, and S.M., R.E.’s common-law spouse. R.E. described the emotional and psychological damage to his daughter caused by the acts of brutal violence perpetrated by Mr. Primmer. He described a young woman and loving mother, who prior to the relationship with the defendant, was outgoing, excelling in her college studies, not into drugs or heavy drinking and who was devoted to her young daughter. Since the assaults, T.E. has struggled with alcohol and cocaine use and post-traumatic stress disorder. She is fearful, emotionally detached and withdrawn.

[21] R.E.’s emotional and psychological state has also suffered. His sleep is perpetually disrupted by nightmares of his daughter’s injuries and suffering. He lost his job of five years. He lives in a constant state of fear, worry and anxiety. He is depressed. He is worried about retaliation from the Hells Angels and has also been diagnosed with PTSD. He will not leave his house for weeks at a time out of fear he will act on his overwhelming feelings of anger. He feels enormous guilt for failing his daughter by not protecting her from Mr. Primmer.

[22] Ms. M. described the loving and close father-daughter relationship between the victim and her father prior to T.E.’s relationship with Mr. Primmer. T.E. and her father would spend hours together with T.E. and her young daughter spending many nights at their home. After meeting Mr. Primmer, Ms. M. observed T.E. to become distant, both emotionally and physically. Ms. M. wrote that every day is a fight to try to hold the family together. She describes similar changes in T.E. as those described by R.E. - she is no longer the loving and caring mother she once was, and struggles with drug and alcohol dependency.

[23] The impact of these crimes on the family of T.E. cannot be understated. The family has been fractured and its individual members bear emotional and psychological scars that are unlikely to heal.

(b) Criminal Antecedents

[24] Mr. Primmer’s criminal record speaks for itself. He has been a part of the criminal justice system since the age of 12. Since that time, his life has consisted of a perpetual cycle of criminal activity, incarceration and release punctuated by brief periods of non-offending.

i) Mr. Primmer as a Young Offender

[25] The day following his conviction on his first youth offence for break and enter, theft under $5000 and failure to comply with undertaking, Mr. Primmer reoffended.

[26] On February 3, 1997, Mr. Primmer was convicted of failing to comply with his curfew and sentenced to a term of secure and open custody. Mr. Primmer was released on May 9, 1997 on a two day early release into his mother’s care. Within 2 weeks of his release he reoffended by being involved in a swarming incident involving an elderly woman.

[27] On July 3, 1997, Mr. Primmer was sentenced to secure and open custody relating to 3 counts of failing to comply with court-ordered conditions. Two months later, during a detention status review the court determined that he would benefit from the program at ProjectDARE. His swarming-related charges were lifted and he was transferred to the open custody unit to serve the balance of his sentence and await admission to ProjectDARE. Two days following his transfer, Mr. Primmer escaped from custody.

[28] On November 13, 1997, he was convicted of assault, uttering threats and two counts of failing to comply with court-ordered conditions, all relating to the swarming incident and was sentenced to six months’ open custody followed by 22 months’ probation.

[29] From November 1997 until his 18th birthday on February 21, 2002, Mr. Primmer was convicted of 28 offences, 19 of which were for failing to comply with court-ordered conditions.

ii) First adult convictions for assault causing bodily harm – Mr. Young and Mr. Bradley

[30] As a youth, Mr. Primmer’s focus was on property-related offences, namely, break-and-enter and theft, save and except for a single assault conviction in 1997 relating to the swarming incident. As an adult offender, his criminality escalated and his focus was directed toward crimes of violence. He has no property-related offences as an adult. His violence does not appear to be motivated by prospects of material gain.

[31] Just shy of 18-and-a-half years of age, Mr. Primmer committed his first assault. This assault involved another inmate at the Stratford jail. Mr. Primmer along with a fellow inmate jumped the victim, James Young. Mr. Primmer admitted to punching Mr. Young in the nose. His co-accused continued to punch Mr. Young repeatedly until corrections officers stepped in to stop the attack. Mr. Primmer pleaded guilty to assault causing bodily harm, and was sentenced to presentence custody and was released into the community in October 2002 subject to 18 months’ probation.

[32] While on probation for the assault on Mr. Young, Mr. Primmer committed an assault causing bodily harm on James Bradley outside of a local bar. Mr. Primmer believing, incorrectly, that the victim had pushed him, grabbed Mr. Bradley turned him around and punched him once in the face which resulted in a laceration and bloody nose. Mr. Primmer pleaded guilty to this assault causing bodily harm and was sentenced to jail time on top of his pre-plea custody. He was released back into the community on probation in early October 2003.

iii) The Manslaughter

[33] On October 18, 2003, Mr. Primmer and his co-accused were drinking at home consuming, together, almost a 40 ounce bottle of liquor. They proceeded to continue to drink at various local bars until closing time. After the bars closed, Mr. Primmer and his friend attended at Bill Welch’s residence with the intent of purchasing more alcohol. They had purchased liquor from Mr. Welch in the past and Mr. Primmer was indebted to him for some of these past purchases. An altercation ensued when Mr. Welch refused to supply more liquor to Mr. Primmer and his friend. His co-accused punched Mr. Welch. Following this, Mr. Primmer stabbed Mr. Welch five times in the torso and then proceeded to retrieve a 12 pack of beer from Mr. Welch’s home. Mr. Primmer returned home with the beer to continue drinking. Mr. Welch dragged himself to a neighbour’s house where police were called. When the police arrived, Mr. Welch was able to identify his assailant as Justin Primmer before succumbing to his wounds.

[34] At the time of the manslaughter, Mr. Primmer was subject to a weapons prohibition order. He pleaded guilty to this offence. Before sentencing, he wrote a letter to the local newspaper professing his remorse and describing his actions as a “horrible mistake”. He apologized to Mr. Welch’s family and friends and his own family and friends and stated that “[his] apology is truly, heartfully sincere.” In this same letter he claimed he, too, was suffering as a result of the negative publicity associated with Mr. Welch’s death.

iv) Desiree Gallagher

[35] Following a guilty plea on August 21, 2013, Mr. Primmer was convicted of assault causing bodily harm on Desiree Gallagher. This offence occurred on May 25, 2013. In the early morning hours of May 25th, Mr. Primmer was a patron at a local adult establishment with his friend. There he met up with his former girlfriend, Alexis Barrett, and her friend, Ms. Gallagher, who was not known to Mr. Primmer.

[36] The four individuals returned to Mr. Primmer’s apartment where they consumed alcohol and cocaine. Eventually Ms. Gallagher and the other two individuals left the apartment. Ms. Gallagher returned to Mr. Primmer’s apartment at approximately 5:20 a.m. The taxicab surveillance photo shows Ms. Gallagher smiling and uninjured. The couple proceeded to drink more alcohol and consume more cocaine. At approximately 8:00 a.m. that morning, Mr. Primmer began to send text messages to Ms. Barrett professing his love for her and threatening to kill himself. At approximately 8:47 a.m., Mr. Primmer took two photographs of Desiree Gallagher’s beaten face. Mr. Primmer also took a photograph of Ms. Gallagher’s driver’s license. At approximately 9:00 a.m., Mr. Primmer called 911 reporting that a friend had just committed suicide by jumping from the balcony of his apartment.

[37] Police arrived to find Ms. Gallagher on the ground beneath Mr. Primmer’s 7th floor balcony, still alive but critically injured. She was rushed to hospital where she underwent many surgeries - including brain surgery. She had no recollection of the events of that early morning. Ms. Gallagher died on May 15, 2015 – almost two years after the assault.

[38] Mr. Primmer’s apartment was searched and photographed by police. In his apartment blood was found in several places within the living room, on women’s clothing, on the carpet and on the couch. A large pool of blood was found on the carpet with drip trails and drip patterns suggesting there had been bleeding for an extended period of time. Ms. Gallagher’s small purse was saturated in blood on both sides and a green handled switchblade knife was also found.

[39] Mr. Primmer was charged with assault causing bodily harm to Ms. Gallagher and possessing a prohibited weapon namely a switchblade knife. He pleaded guilty and was sentenced to three months in jail in addition to the three months spent in pre-plea custody. A two year probation order followed his release in November 2013.

[40] Although there has been considerable suspicion and speculation as to the cause of Ms. Gallagher’s fall from the balcony of Mr. Primmer’s apartment in May 2013, Mr. Primmer has never been charged, let alone convicted, of any offence relating to the fall. Wide-spread media speculation that Mr. Primmer is responsible for Ms. Gallagher’s fall has no bearing on the issues on this dangerous offender application.

v) Huntsville Assault

[41] While on probation for the assault on Ms. Gallagher, Mr. Primmer moved from London to Huntsville in early 2014. Prior to his move to Huntsville, Mr. Primmer had connected with a young woman, S.S., using the dating website “Plenty of Fish”. S.S. and Mr. Primmer had their first date on January 1, 2014 and immediately thereafter began an intimate relationship. A few days later, the two were sitting in Mr. Primmer’s vehicle while parked in the driveway of S.S.’s residence. They had an argument about sex. As S.S. exited the vehicle Mr. Primmer struck her with a closed fist in the back of the leg above the knee leaving a bruise visible 11 to 12 days after the incident.

[42] Although at first denying ever meeting S.S. and later denying any assault on S.S., Mr. Primmer pleaded guilty to assaulting S.S. and to a breach of his probation on April 30, 2014. He received a time-served sentence of three-and-a-half months.

vi) Inmate Assault

[43] Following his arrest on the predicate offences, Mr. Primmer assaulted, Barry McLagan, a fellow inmate at Elgin Middlesex Detention Centre, on September 23, 2014. The incident was captured on video. The video shows Mr. Primmer speaking on the telephone in a day room in the unit in which both Mr. Primmer and the victim were housed. Mr. Primmer is seen interrupting his telephone conversation on two occasions to speak in the direction of the victim. Moments later, the video shows Mr. Primmer striding across the room to where Mr. McLagan is seated. Mr. Primmer proceeds to punch the victim repeatedly in the area of his head and upper body. Once correctional officers enter the day room, Mr. Primmer voluntarily retreated.

[44] Following a trial, Mr. Primmer was convicted of assaulting Mr. McLagan on September 15, 2015 and sentenced to 18 months.

(c) Crown Witnesses

[45] The Crown called twelve witnesses to testify in support of its position on this application. Their evidence ran the gamut. Witnesses were called to testify on behalf of Correctional Services Canada and the National Parole Board. Former probation and parole officers and a caseworker testified. Various police constables testified including an expert on the organization and structure of the Hell’s Angels motorcycle club. A treating psychologist testified as well as the Crown’s expert in psychiatry who prepared the court-ordered assessment report. A woman who had some brief interaction with Mr. Primmer in Huntsville also testified.

i) Evidence of Davis Mitchell

[46] Davis Mitchell was a caseworker with the Ministry of Child and Youth Services at Craigwood Youth Services in Midway, during the time Mr. Primmer was serving a year-long sentence as a youth of 15 years of age. Mr. Mitchell was Mr. Primmer’s direct worker and worked with him daily for a period of a few months. Mr. Mitchell described Mr. Primmer as “a bully with no remorse”. When asked how he related to the other youth in custody, Mr. Mitchell said, “he didn’t have friends, he had victims and to be in his good graces you had to be a good victim”. He went on to say: “he’d hurt people, he’d trip people up, he’d push people, he’d call people on and he’d call them names and I think he’d relish in them not feeling good about those things.”

[47] Mr. Mitchell remembered a specific incident involving a new resident who had moved into Mr. Primmer’s room. This new resident reported to staff that he been threatened and beaten by Mr. Primmer. When confronted, Mr. Primmer admitted to whipping this other resident with his belt but stated it was all in fun. A later incident involved inappropriate sexual touching and advances towards a female resident. A further incident involved Mr. Primmer holding another resident in a headlock.

[48] A search of his room in November 1999 resulted in staff locating a number of demonic and satanic writings and drawings. The content of these letters and drawings is extremely disturbing. Yet around this same time, Mr. Primmer at his Plan of Care meeting stated that he was reading a book on Buddhism and claimed to be enjoying the teachings.

ii) Evidence of Angela Baffes

[49] In February 2000, Angela Baffes was Mr. Primmer’s probation officer. As a youth, Mr. Primmer achieved success in ProjectDARE and Outward Bound, both programs were designed as alternatives to traditional open custody-based programming. Despite his success in these programs, in a predisposition report dated February 14, 2000 prepared by Ms. Baffes, she noted that his success in custody and a structured environment never translated for long in the community while he was a youth. In her predisposition report she wrote:

Although Justin achieved various successes he had difficulty with victim awareness, ownership, and responsibility regarding his various offences. He continued to display pro-criminal attitudes and antisocial behaviours upon returning to the community. Justin’s mother, Kendra Primmer, was supportive of her son and participated in planning throughout his dispositions. She advised that Justin’s defiance towards her authority, Probation, and the Courts, is troubling and unexplainable. She feels that Justin continues to blame her for his situation and that he doesn’t “need to listen to mom”. Although she acknowledges that Justin has come a long way and has acquired many skills, he continues to display a callous attitude towards others. She advised that Justin’s peer associates and possible substance use gets in the way of positive decision-making while in the community.

[50] With respect to Mr. Primmer’s risk of re-offending, Ms. Baffes wrote:

Justin is considered a very high risk to reoffend according to the Risk Need Assessment Review prepared by this Probation officer. Justin responds well in a structured setting and reduces some risk areas while in custody; but, does not transfer these skills and successes in the community.

Probation dispositions appear to have no impact on Justin’s behaviour in the community as evident in his previous record of convictions of wilful failure to comply. It is respectfully recommended that a further probation order will not deter this youth from future offending behaviour.

[51] Ms. Baffes recommended a lengthy secure sentence to the sentencing judge. At the time of her recommendation, Mr. Primmer was just shy of his 16th birthday. Based on her recommendation to the court, Mr. Primmer was sentenced to 16 months’ secure custody at Bluewater Correctional Facility.

iii) Evidence of Barb Forbes

[52] Barbara Forbes testified. She was Mr. Primmer’s probation officer for the latter part of his youth. Once again, Mr. Primmer made progress in alternative programs. In 2002, he was placed in Project Turnaround and appeared to work well with correctional staff and other inmates. Ms. Forbes described Mr. Primmer as interesting, engaging, charming and manipulative. Following his success in Project Turnaround, Ms. Forbes lowered his risk assessment to a high-medium in February 2003. Eight months later he committed manslaughter.

iv) National Parole Board Evidence

[53] The evidence of the National Parole Board (“NPB”) was introduced through Ms. Nikki Smith, Regional Manager of the Conditional Release Programs for the Ontario/Nunavut Regions. Three volumes of NPB document briefs were filed including documents generated by the Correctional Services Canada (“CSC”). The purpose of Ms. Smith’s testimony was to provide evidence regarding the functions of the Parole Board, the parole application and the release processes where an inmate is serving a federal sentence, as well as evidence specifically relating to Mr. Primmer’s applications and parole.

[54] Following Mr. Primmer’s conviction for manslaughter in the stabbing death of Mr. Welch, he was sentenced on October 6, 2004 to eight years in the penitentiary. The NPB records provide the following chronology: Mr. Primmer applied for day parole on February 7, 2007 (waiving his application for full parole) and ultimately was granted day parole on August 14, 2007. He was ordered to reside at Cody Centre, a half-way house. His day parole at Cody Centre was continued on February 13 and August 19, 2008 and subsequently on January 26, 2009.

[55] On August 11, 2009, his day parole was again continued at the Cody Centre until his statutory release date being the date on which he had served two-thirds of his sentence subject to special conditions including that he report any intimate partners and report monthly income, expenses and debts. On September 16, 2009, Mr. Primmer was apprehended and his day parole suspended for breach of his financial disclosure condition and failing to report changes in his employment. In addition, testosterone drops were found in Mr. Primmer’s room at the Cody Centre. On November 3, 2009, day parole was reinstated and Mr. Primmer was once again released to the Cody Centre. On February 5, 2010, Mr. Primmer was granted statutory release and moved in with a friend. On May 1, 2011, Mr. Primmer moved in with his then girlfriend, Britney Pouliot, and her parents.

[56] On December 21, 2011, Mr. Primmer’s statutory release was suspended and he was apprehended for breach of the non-association condition regarding association with the Hell’s Angels motorcycle club. Mr. Primmer was also reported for failing to report the start of his intimate relationship with Ms. Pouliot.

[57] On March 30, 2012, the National Parole Board revoked Mr. Primmer’s statutory release based on its belief that his behaviour “clearly indicates that entrenched criminal attitudes and sentiments, overconfidence and deception and manipulation with both those supervising [his] case and with some of [his] community supports, has resulted in issues with [his] credibility.”

[58] On June 28, 2012, Mr. Primmer was granted early discretionary release although his request to have his counselling condition removed was denied.

[59] Mr. Primmer’s penitentiary sentence was completed on October 5, 2012 being the warrant expiry date. On that date, he was released into the community with no supervision or other controls.

v) Evidence of Dr. Albert Cota

[60] For a period of almost five years during Mr. Primmer’s time in the penitentiary, Dr. Albert Cota provided him with psychotherapy. Their last session was conducted on August 3, 2012. Dr. Cota’s initial clinical impressions of Mr. Primmer were positive. He found that Mr. Primmer’s day parole was proceeding successfully, that Mr. Primmer had confidence although at times this confidence bordered on arrogance and that on occasion Mr. Primmer would become overly defensive. He noted that Mr. Primmer had a tendency to tell others what he thought they wanted to hear.

[61] As his therapeutic relationship with Mr. Primmer progressed over the years, Dr. Cota began to have concerns with regards to potentially entrenched parts of Mr. Primmer’s personality, noting:

Overall, my impression from psychotherapy sessions with Mr. Primmer is that there are themes of selfishness, entitlement, and narcissism in his presentation. These have proved to be fairly resilient to date and probably reflect entrenched parts of his personality. Mr. Primmer in my opinion has shown himself as a person who is comfortable using other people (especially young women) and is fairly dismissive of complaints about how he is behaving unless these complaints come to the attention of staff.

[62] In September 2011, Dr. Cota noted that although Mr. Primmer had been diligent about attending his psychotherapy sessions and had been cooperative and polite, it was unlikely he had received much benefit from psychotherapy. Dr. Cota’s clinical impression was that Mr. Primmer generally received little personal benefit from psychotherapy because of the redundant themes regarding relationships and finances. Also, Dr. Cota was of the view he continued to remain fairly guarded with himself and other staff and his being defensive limited the likelihood of him making gains in psychotherapy.

[63] Dr. Cota testified that Mr. Primmer represented to the NPB that he was willing to participate in counselling and other programs such as Alcoholics Anonymous. Later in counselling sessions with Dr. Cota, he admitted that he only said those things prior to being granted parole in order to influence the Parole Board’s decision

vi) Evidence of Jo Ann Black

[64] Jo Ann Black was Mr. Primmer’s probation officer following his conviction for the assault causing bodily harm on Desiree Gallagher. Ms. Black noted that initially Mr. Primmer presented as polite and cooperative; however, his attitude began to change and in December 2013 he was presenting in an “arrogant manner.” During their December 2013 meeting, Ms. Black noted that Mr. Primmer was not displaying insight, remorse or empathy regarding his past criminal behaviour or his victims, and that he had a self-centred approach. Ms. Black believed Mr. Primmer was “perhaps starting to show his true colours”.

vii) Evidence of Linda Bramer

[65] Linda Bramer was Mr. Primmer’s probation officer in Huntsville and had occasion to meet with him twice during his brief time in the community. Mr. Primmer told Ms. Bramer that he had been offered a position as a personal trainer at a fitness club in Huntsville. When contacted by police, the owner of the gym denied he had offered Mr. Primmer a position in any capacity.

[66] Mr. Primmer told Ms. Bramer that he was starting a position with a transport company on February 3, 2014. When contacted by Ms. Bramer, Mr. Primmer’s contact denied offering him any position with the company, and confirmed that Mr. Primmer had never worked for the company.

[67] Ms. Bramer asked Mr. Primmer whether he had met a woman by the name of “S.” since arriving in Huntsville. The defendant denied to Ms. Bramer that he was involved in a relationship with S.S. and claimed he had never met her in person claiming his only contact with her was through text messages.

[68] He advised Ms. Barnes that he intended to change his surname to “Ruhl” and claimed the last time he used this surname was when he was five years of age. MMA websites revealed Mr. Primmer used the name Justin “Ruhl” only a few years prior. Mr. Primmer had also set up a Facebook account in the name of Justin “Ruhl”.

viii) Evidence of Detective Constable John Rupert, and Detective Constable Matt Turner

[69] John Rupert, a detective constable with the Biker Enforcement Unit of the OPP, provided expert testimony on the organization and structure of the Hell’s Angels outlaw motorcycle club and specifically the London chapter. He explained that criminality is the defining characteristic separating the Hells Angels from other motorcycle clubs. The club’s criminality includes gaming, extortion, assault, human trafficking including forced prostitution, and drug trafficking. Women are regarded as property for the most part and do not hold positions of power within the organization.

[70] Based on his knowledge and experience, Mr. Rupert provided his opinion as to the degree of Mr. Primmer’s association with the Hells Angels. It is undisputed that while on parole in 2011 and following his warrant expiry on October 5, 2012, Mr. Primmer associated with the Windsor and London chapters of the Hell’s Angels. Photographs retrieved from Mr. Primmer’s cell phone date-stamped during the period July 2011 through December 24, 2012, show Mr. Primmer with various full patch, hang-around and prospect members of the London chapter of the Hells Angels, including their former and current president. He is photographed within the clubhouse wearing support wear and he is photographed outside in the community with members of the Hells Angels again wearing support wear. He sports a large skull tattoo on his right arm which bears striking similarities to the Hells Angels trademark skull. Mr. Primmer has admitted the tattoo is dedicated to the Hells Angels.

[71] During his interview with Detective Vandenende conducted on January 15, 2014 Mr. Primmer admitted to having had an association with the Hell’s Angels and that at one time he was almost a member but claimed he was now out of that life. Shawn Marchand, a close friend of Mr. Primmer spoke with Police Constable Matt Turner of the OPP on January 15, 2014 and advised him that Mr. Primmer had been involved with the Hell’s Angels for approximately five years and worked for the Hell’s Angels as an enforcer at the clubhouse. While not a patch member, he had attained “hang-around” status.

[72] It is evident from the photographs as interpreted for the court by Mr. Rupert, that Mr. Primmer enjoyed the respect of many high-ranking members of the London chapter of the Hell’s Angels. This evidence was corroborated by the statements made by his friend, Mr. Marchand, to both Ms. Bramer and to Detective Turner. It is important to note, that his association with the Hell’s Angels began while he was on parole.

[73] Relying on his expertise and experience dealing with the London chapter of the Hells Angels, and his particular knowledge of the positions held by various individuals identified in the photographs, Mr. Rupert reached the conclusion that Mr. Primmer is a trusted associate of the London chapter of the Hells Angels and would be accepted back into the London chapter should he wish to return.

ix) Evidence of M.B.

[74] M.B. was the last of the lay witnesses called by the Crown. She testified regarding her interactions with Mr. Primmer during his brief time in Huntsville. She met Mr. Pimmer at a local fitness club and they exchanged cell phone numbers. Mr. Primmer sent a number of flirtatious texts to M.B. attempting to charm her with tales of affluence including his intention to open a kickboxing gym. When M.B. politely rejected his advances, Mr. Primmer’s next text message was immediately aggressive and vulgar.

(d) Defence Witnesses

[75] In addition to the expert evidence of Drs. Chaimowitz and Mamak, the respondent called three character witnesses: Laura Lesperance, discharge and rehabilitation officer with the Southwest Detention Centre; Steve Glenn, Deputy Superintendent at EMDC; and Mohammed Mohammed, Mr. Primmer’s Imam while he was housed at the Southwest Detention Centre.

i) Evidence of Laura Lesperance

[76] Ms. Lesperance was assigned to Mr. Primmer to assist him with planning for his discharge into the community. She explained that her role was to encourage inmates in working towards rehabilitation through meaningful programming and planning for their discharge.

[77] At the time she gave her evidence to the court, she had worked with Mr. Primmer at Southwest Detention Centre since approximately May 2016. Ms. Lesperance acknowledged that she was not qualified to conduct, nor did she conduct, a risk assessment on Mr. Primmer. Her evidence was limited to her observations of Mr. Primmer during the time she was assigned to assist him with discharge planning. She gave a glowing report of Mr. Primmer’s behaviour during that time. She found him to be disciplined, courteous, patient, punctual, devoted to his religious practices and capable of self-control. She described him as a model inmate.

ii) Evidence of Steve Glenn

[78] Steve Glenn is the Deputy Superintendent at EMDC. He testified as to his observations about an incident that occurred on October 29, 2015 in the common room of the unit in which Mr. Primmer was housed. He also provided evidence regarding the prison subculture as context for the assault on Mr. McLagan in September 2014 and Mr. Primmer’s involvement in the October 2015 incident.

[79] Video footage of the October 2015 incident shows Mr. Primmer remaining seated during the majority of an assault on another inmate. Only towards the end of the incident does Mr. Primmer get up from where he is seated and proceed to deliver a few punches and kicks to the inmate. Mr. Primmer was not charged with assaulting this inmate.

[80] Mr. Glenn described Mr. Primmer’s involvement in the incident as minimal compared to inmate culture generally. He suggested that Mr. Primmer engaged in violence because Mr. Brennan was reaching for a weapon. During cross-examination Mr. Glenn was taken frame by frame through the video footage and questioned on the issue of whether Mr. Primmer’s involvement was in self defence. Mr. Glenn testified that he observed the inmate reaching inside his prison coveralls for a weapon. I have reviewed the footage frame by frame and do not come to this same conclusion. The video footage is inconclusive. No weapon was found despite a weapon search being conducted. Mr. Glenn’s theory that Mr. Primmer became involved in the incident in self-defence is speculative and not supported by the evidence.

[81] Mr. Glenn testified that he was told by his correctional officers that Mr. McLagan called Mr. Primmer a “goof”, which Mr. Glenn says is a derogatory jailhouse term, thus provoking the attack. Mr. Glenn explained that if you are called a “goof” and choose to do nothing in response you will be preyed upon. Mr. Primmer’s choice was to step up and prey upon Mr. McLagan or be preyed upon. He chose the former.

[82] Similar to the evidence of Mr. Glenn, Mr. Primmer testifed at the McLagan assault trial that his actions were in the nature of self-defence. He testified that a failure to act would have put him at risk of an attack by Mr. McLagan or an attack by a group of inmates. This evidence was rejected by the trial judge. The trial judge concluded that Mr. Primmer’s motivation in attacking Mr. McLagan was to punish him for his disrespectful behaviour and to maintain Mr. Primmer’s position as the “heavy” on the unit. Justice McKay went on to find that Mr. Primmer responded to the challenge by Mr. McLagan out of anger and a desire to maintain his status.

[83] In deference to the findings of the trial judge, I attribute no weight to this evidence of Mr. Glenn.

[84] Mr. Glenn’s evidence was not necessary. He was not qualified as an expert in the area of inmate culture. The video footage of the assault on Mr. McLagan and the October 2015 incident speaks for itself. I am able to observe clearly the extent of Mr. Primmer’s assaultive behaviour. The video evidence does not require amplification, interpretation or context. Mr. Primmer is clearly the aggressor. He is not the prey.

iii) Mohammed Mohammed

[85] Mr. Mohammed was Mr. Primmer’s Imam while he was housed at the Southwest Detention Centre. He testified to working with Mr. Primmer for over a year and described him as the most dedicated inmate he has had occasion to work with, that he attends all services, calls prayer during the services, mentors other inmates in the Islamic faith and speaks with him throughout the week.

[86] Mr. Mohammed described the Islamic faith as rigorous and the conversion to which is difficult. He gave as an example the requirement for prayers and testified that Mr. Primmer maintains a schedule of five prayers a day. Mr. Primmer has taught himself Muslim prayers in Arabic and he is able to recite portions of the Qur’an.

[87] Mr. Mohammed’s evidence is consistent with the evidence of Ms. Lesperance regarding Mr. Primmer’s strict adherence to the Muslim faith. Mr. Mohammed indicated that Mr. Primmer would be welcomed and supported by the Islamic community upon his release from custody.

(e) Expert Evidence

[88] Dr. Philip Klassen, a forensic psychiatrist, conducted the assessment ordered pursuant to s. 752.1 of the Code. At the request of Mr. Primmer, he was also assessed by Dr. Gary Chaimowitz, a forensic psychiatrist (assisted by Dr. Mini Mamak, a psychologist). Drs. Klassen, Mamak and Chaimowitz were all qualified to give expert opinion evidence. While there were some differences in their respective opinions, there was general agreement on diagnosis and a general consensus on the risk posed by Mr. Primmer to the community.

[89] In terms of diagnosis, all three experts agreed that Mr. Primmer meets the criteria for a substance use disorder and anti-social personality disorder with narcissistic personality traits.

[90] All three experts agreed that, on his own in the community without supervision, Mr. Primmer poses a moderate to high risk of violent reoffending generally and a high risk of intimate partner violent re-offending. All three experts were of the opinion that with the proper controls and supervision, the risk could be managed in the community.

[91] Because of the consistency between the Crown and respondent’s expert evidence regarding diagnosis and risk, it is unnecessary to undertake a comprehensive assessment of the limitations and advantages between and among the various diagnostic tools used by the experts to arrive at their opinions. Although some discussion will be undertaken in this regard.

i) Evidence of Dr. Klassen

[92] On the advice of counsel, Mr. Primmer refused to be interviewed by Dr. Klassen and so Dr. Klassen’s risk assessment was restricted to a file review. Dr. Klassen employed a number of risk assessment tools including:

• psychopathy checklist revised (PCL-R);
• violence risk appraisal guide (VRAG);
• Ontario domestic assault risk assessment (ODARA); and
• domestic violence risk appraisal guide (DVRAG). [^2]

[93] From a review of his youth files, Dr. Klassen noted that Mr. Primmer’s presentation was not constant across time and settings, rather, Mr. Primmer presented with more behaviour problems when in unstructured settings. For example, Mr. Primmer behaved positively in custody and in the ProjectDARE program. It was further noted by Dr. Klassen that while Mr. Primmer participates in counselling and treatment when in custody, he does not participate in counselling and treatment when in the community. Dr. Klassen identified a theme of deterioration of behaviour in the community and in unstructured settings. He stated in his report: “when structure is missing you see an almost immediate deterioration in behaviour.” He also noted a common theme of attitude superiority. From a review of Dr. Cota’s reports, Dr. Klassen concluded that any remorse expressed by Mr. Primmer was superficial.

[94] With respect to responsiveness to treatment, Dr. Klassen observed that Mr. Primmer’s narcissistic traits could lead to reduced treatment response. In his report he states:

There is a bigger literature saying just lack of distress reduces treatment response. If you’re not distressed with yourself and your lifestyle, that has an impact on treatment response whether you are narcissistic or not, whether you’re something else. Generally speaking, people with narcissistic traits have an inflated sense of themselves and an arrogant or entitled interpersonal presentation.

[95] Dr. Klassen scored Mr. Primmer on the 99th percentile using the ODARA tool which is designed to look at the risk of repeat domestic violence. Mr. Primmer’s score placed him in the highest risk category for repeat domestic violence. Using the DVRAG tool Mr. Primmer’s score placed him on the 98th percentile and placed him in a category of persons having the highest probability of domestic violence recidivism at a rate of 100 percent. Dr. Klassen cautioned that this result is not to be interpreted as a guarantee of future domestic violent reoffending; rather, indicates the strongest likelihood that Mr. Primmer will be rearrested for domestic violent offending.

[96] In summary, Dr. Klassen concluded Mr. Primmer has a high risk of general violent recidivism and a very high risk of domestic violence recidivism.

[97] With regards to Mr. Primmer’s future offending, Dr. Klassen provided the following opinion in his report:

If this gentleman is to reoffend violently, I would expect that this would take place in the context of lack of supervision/external controls. I would posit that this gentleman’s narcissistic personality features, so to speak, expand to fill the room available to them; in the absence of good supervision this gentleman appears to gravitate toward a sensation-seeking lifestyle that includes significant substance use. I would expect that this gentleman might connect with a vulnerable individual, perhaps with personality or addiction difficulties of her own, and then in the context of active addictions, and challenge to his wishes or dominance, Mr. Primmer might respond aggressively.

[98] Dr. Klassen noted a shift after 2012 towards intimate partner violence and expanded addiction issues. Dr. Klassen opined that these shifts pose a different set of risk factors which could make management in the community more difficult than was management of Mr. Primmer following his manslaughter conviction.

ii) Evidence of Dr. Mini Mamak

[99] Dr. Mamak conducted the testing upon which Dr. Chaimowitz relied in providing his clinical assessment of risk. With regards to predicting future intimate partner violence, Dr. Mamak utilized the SARA diagnostic tool. Using the SARA, Dr. Mamak opined that Mr. Primmer scored at the highest level in terms of risk of intimate partner violence.

[100] The most significant area of disagreement between Dr. Klassen’s findings and Dr. Mamak’s findings was the scoring of Mr. Primmer by Dr. Mamak using the HCR-20. Because she was able to test Mr. Primmer directly, the HCR-20 tool was used rather than the DVRAG tool to which Dr. Klassen was restricted.

[101] Dr. Klassen testified that the HCR-20 was originally designed to assess risk in the context of preparing for immediate release. He was of the view that because release conditions can change over a year, two years or three years, a range of scores is preferable to a single score. In completing the HCR-20 Dr. Mamak considered clinical factors with a focus on the six months dating back from the date of her assessment, which took place in September 2016. Mr. Primmer had not violently offended in the 6 months preceding her assessment. When considering risk management factors, her focus was restricted to looking forward 6 to 12 months. Mr. Primmer scored 24 on the HCR – 20 which placed him as moderate to high risk of violent reoffending. Dr. Klassen noted that this score represents the best case scenario and assumes that everything will go as planned and is durable including that:

• Mr. Primmer will receive and participate in addictions programming;
• Mr. Primmer will receive and participate in individual counselling;
• Mr. Primmer will open his own gym;
• Mr. Primmer will identify and contact pro-social supports;
• Mr. Primmer will connect with a mosque; and
• Mr. Primmer be open to treatment and have a long-term commitment to treatment.

[102] Dr. Mamak acknowledged that with regards to Mr. Primmer’s expansion into intimate partner violence and his insight into this particular type of offending, this was an area of concern; however, due to time constraints this was not an area that was explored with Mr. Primmer by either herself or Dr. Chaimowitz. Dr. Mamak recognized that this factor contributes to his risk and requires intervention and further exploration. She further recognized that Mr. Primmer expanding his offending into intimate partner violence requires further supervision and monitoring.

[103] Dr. Mamak’s opinion with regards to Mr. Primmer’s risk of general recidivism based on a review of his conduct during the six months preceding the assessment, was moderate to low in a controlled setting (i.e., detention centre); however, his risk for future intimate partner violence remained high.

iii) Evidence of Dr. Gary Chaimowitz

[104] In his report, Dr. Chaimowitz provided the opinion that Mr. Primmer posed only a moderate to high risk to reoffend generally. His opinion was consistent with Dr. Mamak’s in this regard. However, during his testimony at trial he amended his original risk assessment and concluded that Mr. Primmer poses a high risk to commit general violent recidivism.

[105] With respect to Mr. Primmer’s future offending, Dr. Chaimowitz was of the opinion that:

Mr. Primmer is a man who has charm and has used that charm to effect. This has worked out at times well for him and at times not so well for either he or his victims. His narcissism and antisocial reality has contributed to what appears to be a general disdain for his intimate partners, sufficient that he has beaten and or terrorized several of them over the years. He does take issue with this characterization. Many of his relationships have been accompanied by significant conflict or aggression. Hence, it is likely that he will inevitably enter a relationship, and will act out violently against his partner, should he perceive them as being not following his wishes, or should his jealousy or control issues either increase spontaneously, or exacerbate under the influence of drugs and/or alcohol.

[106] Dr. Chaimowitz agreed with Dr. Klassen that Mr. Primmer poses a high risk of committing further intimate partner violence.

4. Positions of the Parties

(a) The Crown (Applicant)

[107] The Crown submits that this application to have Justin Primmer designated a dangerous offender is justified on the evidence. The Crown argues that the evidence supports a finding that the criteria have been met which mandates the court to find Mr. Primmer a dangerous offender. The Crown further submits that an indeterminate sentence of preventative detention is warranted because there is no evidence upon which the court is able to conclude that a lesser penalty will protect the public from the risk Mr. Primmer poses.

(b) The Offender (Respondent)

[108] Counsel on behalf of Mr. Primmer submits that Mr. Primmer’s risk to reoffend can be adequately managed in the community. Mr. Primmer asks that the Crown’s application be dismissed and a sentence of six to eight years with credit for pre-sentence custody [^3] be imposed for the predicate offences. In the alternative, Mr. Primmer asks that he be declared a long-term offender and subject to a determinate sentence followed by a 10-year supervision order. In the further alternative, should the court find him to be a dangerous offender, the respondent asks the court to impose a determinate sentence followed by a long-term supervision order.

[109] In short, the respondent asserts that the evidence supports a finding that he is capable of being controlled such that the public can be adequately protected upon his release into the community following his custodial sentence.

5. Analysis

(a) Overview and Historical Development

[110] The primary purpose of the dangerous offender provisions is to protect the public. The criteria for a dangerous offender designation were substantially overhauled in 1977. The legislation was then substantially amended in 1997 to grant discretion to the court to not find a person a dangerous offender even though the person otherwise satisfied the statutory criteria. However, the most recent legislative amendments made in 2008 removed any judicial discretion regarding making a dangerous offender designation where the criteria were met; however, added judicial discretion by creating additional sentencing options and outcomes.

[111] The current test set out in s. 753(4.1) mirrors the prior test, namely, whether there is a reasonable possibility of eventual control in the community. If not, an indeterminate sentence must follow the designation. If on the other hand, the evidence establishes a reasonable possibility of eventual control in the community, the court has discretion to choose a penalty from a range of options, including a long-term supervision order. The judge may impose a sentence that is not indeterminate, if there is a reasonable expectation that a lesser measure adequately protects the public. [^4]

[112] A dangerous offender designation is not restricted to offenders who commit the gravest of crimes. The Ontario Court of Appeal in R. v. Solano described the designation in this way:

There is no requirement under the Criminal Code that the serious personal injury offence required to trigger a dangerous offender application meet a specified threshold of seriousness. As this Court recognized in R v. M.B.H. [^5], a “worst offender\worst offence” characterization is not a precondition to the imposition of an indeterminate sentence under s. 753.1 of the Criminal Code. To the contrary, a dangerous offender designation and an indeterminate sentence are properly imposed in cases where, as here, the offender meets the statutory criteria for such a designation and his or her future risk cannot be controlled through a determinate sentence or the imposition of a long-term supervision order. [^6]

(b) The Statutory Regime

[113] As a condition precedent to a dangerous offender application, an offender must first be convicted of a serious personal injury offence.

[114] From there, s. 753 of the Code sets out four bases upon which a person may be designated a dangerous offender, three in subsection (a), and one in subsection (b). These overlap to some degree. If any one of the pathways is established beyond a reasonable doubt, the court has no discretion and must find the person before the court to be a dangerous offender.

[115] Subsections 753(1) (a) and (b) of the Code read as follow:

753 (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 s. 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, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in s. 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(c) Is Justin Primmer a Dangerous Offender?

(i) Serious Personal Injury Offence

[116] A “serious personal injury offence” is defined in s. 752 of the Criminal Code as “an indictable offence, other than high treason, treason, first-degree murder or second-degree murder, involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for 10 years or more.”

[117] With regards to the predicate offences, the Crown relies upon the convictions of aggravated assault and assault causing bodily harm as the serious personal injury offences. I find that both offences meet all of the statutory requirements of a serious personal injury offence, because each involves “the use of or attempted use of violence against another person” and allows for a penalty of 10 years or more [^7].

[118] The respondent concedes that the predicate offences satisfy the criteria of a personal injury offence as defined in s. 752 of the Code.

(ii) Two Pathways to a Dangerous Offender Designation

[119] The Crown argues that Mr. Primmer satisfies two definitions of dangerousness. The Crown submits that it has established, beyond a reasonable doubt, that Justin Primmer constitutes a threat to the life, safety or physical or mental well-being to other persons under both s. 753(1) (a)(i), namely, that he exhibits a pattern of repetitive behaviour coupled with the likelihood that he will commit further violent offences through failure to restrain his behaviour; and s. 753(1) (a)(ii), namely, that there is a pattern of persistent aggressive behaviour showing a substantial indifference respecting the foreseeable consequences to other persons. Either pathway will lead to a mandatory dangerous offender designation.

[120] In reviewing whether a pattern exists on either pathway, the court must take a totality approach to the offender’s criminal history [^8]. A review of Mr. Primmer’s entire offence history, including the predicate offences, is relevant to the analysis under both pathways.

[121] It should be noted that intractability is not a necessary element for a finding of dangerous offender. Rather intractability is an important consideration during the penalty phase. [^9]

(iii) S. 753(1)(a)(i) Pathway

[122] In order to find a person a dangerous offender pursuant to s. 753(1)(a)(i), the Crown must show that the offender has:

• engaged in a pattern of repetitive behaviour;
• this pattern of behaviour shows a failure by the offender to control his behaviour; and
• this pattern shows a likelihood of the offender causing death, injury or inflicting psychological damage on others, through a failure to restrain his behaviour in the future.

[123] A pattern of repetitive behaviour is not based solely on the number of offences but also on the elements of similarity of the offender’s behaviour. The lesser the number of offences, the more similar they should be. In order to demonstrate a pattern of behaviour, the offender’s crimes must contain similarities in order to create the pattern, but there can still exist distinctive differences so long as they do not detract from the elements of a pattern.

[124] The test for concluding the existence of a pattern of repetitive behaviour was articulated by the Ontario Court of Appeal in its 2011 decision of R. v. Hogg [^10] as:

To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction -- could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[125] This test was applied in R. v. Szostak [^11] where it was stated at para. 63:

…The appellant’s repeated resort to force that caused serious injuries shows the necessary pattern under either para. (i) or (ii). There were sufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve at para. 113: “Similarity… 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.” Over a very short period, four years, the appellant seriously injured three different people. He resorted to weapons in three of the offences and inflicted serious injuries. The trial judge’s statement, at para. 69 of his reasons, that “[n]one of the injuries inflicted on the victims were life-threatening or intended to be so”, places too high a burden on the Crown and fails to reflect the gravity of the offences. Breaking a beer bottle over a person in a bar because of the dispute about standing in line; slashing a person with a pair of scissors because the appellant mistakenly thought the victim had some time earlier been involved in an altercation with him; beating an acquaintance so badly that he needed to go to hospital; and a year later slashing that same person with a knife across the face causing permanent injury demonstrate the very type of pattern intended to be captured by paras. (i) and (ii).

[126] All offences in an offender’s history need not qualify as serious personal injury offences to contribute to a pattern of behaviour. [^12] For purposes of utilizing s. 753(1)(a)(i) the Crown is relying upon Mr. Primmer’s history of intimate partner violence and the similarities within the assaults perpetrated by Mr. Primmer against each of T.E., Ms. Gallagher and S.S.

[127] The respondent concedes that the predicate offences form part of a pattern of repetitive behaviour. Regardless of this concession, with respect to the assaults on T.E., Ms. Gallagher and S.S., I find a pattern emerges from the following similarities:

• the victims were female;
• the violence occurred in the context of an intimate relationship with Mr. Primmer;
• the existence of elements of power and control by Mr. Primmer;
• the existence of elements of uncontrolled anger and impulsivity triggered by disrespect shown towards Mr. Primmer; and
• substance use prior to and during the offending.

[128] The third and last criteria under s. 753(1)(a)(i) requires the Crown to establish beyond a reasonable doubt that there is a “likelihood” the offender will cause death or injury to, or inflict severe psychological damage on, another person through failure in the future to restrain his behaviour. The respondent submits the Crown has failed to satisfy its burden that there is a likelihood Mr. Primmer will cause death or injury to or inflict severe psychological damage on another person.

[129] To establish “likelihood”, the Crown need not prove beyond a reasonable doubt that Mr. Primmer will re-offend. Rather, the court must be satisfied beyond a reasonable doubt that there is a present likelihood that the offender will violently reoffend in the future. That is, the Crown must prove beyond a reasonable doubt that it is more likely than not that the offender will, in the future, violently re-offend. [^13]

[130] Code J. in R. v. P.G. [^14] explained it as the Crown’s burden to prove the probable risk or potential for harm as a present fact rather than a burden to prove a future event. He noted the latter would be an impossibility.

[131] With respect to Mr. Primmer’s likelihood to reoffend, Dr. Klassen noted that the actuarial/structured risk assessment tools that he used all pointed to Mr. Primmer being at a high risk of general violent recidivism and very high risk of domestic violence recidivism. Focusing on intimate partner violence, Dr. Klassen opined:

…so, you know, whether we use the words very high or you know, some other descriptor, the point is he’s in the highest category there. So even though the PCL score is not astronomical, there’s something about Mr. Primmer and his history that appears to suggest that [intimate partner violence] is a real risk going forward.

[132] On the same issue, Dr. Chaimowitz noted that Mr. Primmer continues to offend, has been manipulative, used drugs, acted out violently and his victim pool has been fairly wide, including intimate partners. Dr. Chaimowitz testified that in his opinion Mr. Primmer is going to continue to offend, probably in a similar pattern to the offences up until now. As a result, Dr. Chaimowitz used his “clinical override” to assess Mr. Primmer’s current risk of future offending as high, stating:

In my opinion, based on what I know about Mr. Primmer and his history, he’s essentially had, with some exceptions, a continuous history of offending and that’s fuelled in part by his drug use, some of his narcissism, some of his associates, all of that is contributed to his re-offending. You say he’s a bad man, he’s a bad dude. This is a man who’s going to continue to offend. And I would say his risk clinically, so a clinical override to the risk assessment tools would be high and I can’t see it any other way, based on his history.

[133] With regards to intimate partner violence, Drs. Chaimowitz, Mamak and Klassen all agree that Mr. Primmer poses a high risk of committing further intimate partner violence.

[134] Leaving aside the expert evidence which appears conclusive of the issue, common sense suggests that the past is the best predictor of the future. Mr. Primmer has been, without exception, incapable of controlling his anger and violent impulses in an unsupervised environment. In fact, there are clear instances where he has been unable to control his anger and impulses in a controlled setting such as the assault on Mr. McLagan and his involvement in the October 2015 incident. Any demonstrated ability to control his impulses in a custodial setting cannot be extrapolated to support a finding that he is capable of controlling his impulses in the community. Even with supervision through probation and parole, he has proven incapable of complying with court-ordered conditions in place to control the triggers for re-offending such as alcohol use, intimate relationship reporting and his association with the Hells Angels.

[135] On this application, Mr. Primmer’s failure to accept responsibility for the predicate offences shows a lack of remorse and is a factor to consider in assessing Mr. Primmer’s likelihood of re-offending in the future. This was discussed by Code J. in R. v. P.G. at paras. 44 and 45:

… Levert stands for the proposition that “denial” can be relevant to sentencing when it impedes treatment and, thereby, increases the risk of recidivism, or “dangerousness” as Rosenberg J.A. called it. In this sense, it is not P.G.’s ongoing assertion of his innocence that is aggravating. Rather, it is the negative prospects for treating his pedophilia that is aggravating because it increases the risk of re-offending.

…The Courts have repeatedly referred to “denial”, especially by sex offenders but also by violent aggressive psychopaths, as a significant factor when assessing the likelihood test in s. 753 concerning future re-offending.

[136] Mr. Primmer’s counsel speaks to his treatability. This issue will be addressed in the context of the penalty phase. Treatability is not a factor to consider at the designation stage.

[137] I find that the Crown has established beyond a reasonable doubt that it is more likely than not Mr. Primmer will violently re-offend in the future.

(iv) S. 753(1)(a)(ii) Pathway

[138] In order to find a person a dangerous offender pursuant to s. 753(1)(a)(ii), the Crown must show that the offender has:

• engaged in a pattern of persistent aggressive behaviour; and
• that this pattern of behaviour shows a substantial degree of indifference by the offender regarding the reasonable consequences of his behaviour on the part of the failure by the offender to control his behaviour.

[139] “Persistent” in the context of this provision has been equated with “repetitive”. That is, something more is not required for an offender’s history to be considered persistent or repetitive. A pattern suggests something repeated and connected in design or order. [^15] Utilizing this pathway, the pattern in question is Mr. Primmer’s persistent aggressive behaviour. Under this subsection, the similarities between the predicate and the past offences are irrelevant. As explained by the Alberta Court of Appeal in R. v. Neve [^16]: “…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 is occurred, it may well suffice.”

[140] In determining whether there is a pattern, a court must consider the totality of the circumstances surrounding the predicate offences and the offender’s prior offences. [^17] As an adult, Mr. Primmer has displayed a pattern of dominance and a lack of control through violent behaviour as follows:

• beating Mr. Young at the Stratford jail in 2002;
• beating Mr. Bradley in 2003 believing incorrectly he had pushed him leaving him with a bloody nose and laceration to his face;
• stabbing Mr. Welch to death in 2004 because he would not extend credit to him for more beer;
• beating T.E. in 2013 into unconsciousness because she disrespected him in front of his friend;
• beating Ms. Gallagher’s face and torso in May 2013 and photographing her injuries;
• slashing T.E.’s forearms with a knife when she attempted to end their relationship leaving her disfigured and photographing her injuries;
• punching S.S. in the back of her leg when she refused to have sex with him; and
• violently beating Mr. McLagan at EMDC because he called Mr. Primmer a derogatory name in front of other inmates.

[141] The respondent concedes that the Crown has proven beyond a reasonable doubt a pattern of persistent aggressive behaviour as required under this pathway; however, submits that the Crown has failed to meet its burden of proving the third criteria under this pathway, that is, Mr. Primmer’s indifference as to the consequences of his actions. The respondent makes reference to Dr. Mamak’s evidence that Mr. Primmer is not unremorseful or indifferent to the reasonable consequences of his behaviour.

[142] When utilizing the pathway under s. 753(1)(a)(ii), the Crown must demonstrate that the offender has a conscious but uncaring awareness of causing harm to others and that this has occurred over a period of long duration involving frequent acts and with significant consequences. To meet its burden of proof, the Crown must present expert evidence in relation to the offender’s degree of indifference. [^18]

[143] In this case, Mr. Primmer was diagnosed by all three experts as having antisocial personality disorder with narcissistic traits. Dr. Klassen provided the following general description of antisocial personality disorder:

This is the personality style that tends to get people in trouble with the law. To varying degrees, because it falls on a continuum, these folks tend to be impulsive and self-serving. They tend to have relatively little sense of duty or loyalty to society, to ideas, to cause or to other people. They are sometimes more distressed and sometimes not distressed by the way they live their lives. In the fundamental feature, the cardinal feature in the DSM [Diagnostic Statistical Manual] is that it’s the violation of the rights of others and societal norms or rules on a repetitive basis that is the anchor point for the diagnosis.

[144] Specifically with regard to Mr. Primmer, Dr. Klassen noted that he either met or likely met six of the seven criteria for a diagnosis of antisocial personality disorder, including a failure to conform to societal norms with respect to lawful behaviour; deceitfulness as indicated by repeated lying or conning others for profit or pleasure; impulsivity or a failure to plan ahead; aggressiveness and irritability; consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations; and a lack of remorse by being indifferent to or rationalizing having hurt, mistreated or stolen from another person.

[145] With regards to Mr. Primmer’s score on the psychopathy checklist revised (PCL-R), Dr. Mamak noted that Mr. Primmer’s scores in the lifestyle and anti-social domain were elevated, which suggests that he demonstrates significant antisocial behaviours and attitudes.

[146] When he met with Dr. Klassen Mr. Primmer indicated that he is innocent of his most recent convictions and is innocent of most of his criminal record having pleaded guilty so as to secure expeditious release. He told Ms. Lesperance he stabbed Mr. Welch in self-defence.

[147] In Dorsey, the court concluded that the defining features of anti-social personality disorder coupled with Mr. Dorsey’s pattern of violent offending lead to the inference that he had a general lack of compassion for others.

[148] The same is true for Mr. Primmer. I find that the expert evidence establishes through his diagnosed antisocial personality disorder and his significant antisocial behaviours and attitudes demonstrated through his PCL-R score, that Mr. Primmer possesses an indifference. Mr. Primmer has repeatedly shown a pattern of persistent aggressive behaviour and has expressed little remorse towards his victims. I find that any remorse displayed over the years has been sporadic and not genuine.

(v) Finding

[149] Therefore, I find that the respective elements of ss. 753(1)(a)(i) and 753(1)(a)(ii) have been proven beyond a reasonable doubt. In particular, I find:

• that the predicate offences include serious personal injury offences as defined in s. 752 of the Code; and
• that Justin Primmer constitutes a threat to the life, safety or physical or mental well-being of other persons because of:
  • a pattern of repetitive behaviour showing a failure to restrain behaviour, and
  • a likelihood of causing death or injury or inflicting serious psychological damage to other persons (s. 753(1)(a)(i)); AND
  • that Justin Primmer displays a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[150] I, therefore, declare Justin Primmer to be a dangerous offender.

6. Penalty

[151] Having found Mr. Primmer to be a dangerous offender pursuant to ss. 753(1)(a)(i) and (ii), I must now consider the penalty to be imposed in this case. This determination is guided by paras. (4) and (4.1) of s. 753 of the Code, which state as follow:

(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

(c) impose a sentence for the offence for which the offender has been convicted.

(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.

(i) The Nature of an Indeterminate Sentence

[152] The respondent fears that an indeterminate sentence would result in locking him up and throwing away the key. The evidence suggests something different. An indeterminate sentence is not an indefinite custodial sentence.

[153] The evidence of Ms. Shelley Griffith, parole officer supervisor with Correctional Services Canada, described the role of Correctional Services Canada in case-managing a dangerous offender subject to an indeterminate sentence or long-term supervision order. Ms. Griffith explained that a dangerous offender serving an indeterminate sentence has no statutory right to release and therefore must earn his or her conditional release on an unescorted temporary absence, day parole or full parole. Being designated a dangerous offender does not automatically mean maximum security. The required level of security is assessed in the same manner as it is for all other offenders.

[154] A dangerous offender serving an indeterminate sentence is not eligible for full parole until he or she has served seven years from the date of arrest. With regards to Mr. Primmer, this date would be May 1, 2021. After serving seven years, the offender is entitled to a review every two years. Such dangerous offenders are eligible for day parole and unescorted temporary absences after the longer of three years and the three years prior to the offender’s full parole eligibility date. With regards to Mr. Primmer, this date would be May 29, 2020.

[155] Ms. Griffith confirmed that dangerous offenders serving an indeterminate sentence who are granted a form of conditional release are subject to the same supervision standards and policies as other offenders and may be suspended on the same basis as other offenders for breach of a condition, to prevent a breach or for the protection of society.

[156] The key difference between a dangerous offender serving an indeterminate sentence and an offender serving a determinate sentence, is that the former does not enjoy statutory release after serving two-thirds of his or her sentence and there is no warranty expiry date.

(ii) The Burden of Proof

[157] At the penalty stage of the application, the Crown does not have the onus to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the offender’s risk in the community. Moreover, the Crown need not prove beyond a reasonable doubt that the offender is not treatable and need not prove beyond a reasonable doubt that there are no supervisory facilities that will adequately contain the offender’s risk. Rather, having found Mr. Primmer to be a dangerous offender I must be satisfied on the totality of the evidence that Mr. Primmer’s behaviour can be controlled by a less restrictive sentence than an indeterminate one. (emphasis added)

[158] The reality is that should I impose a determinate sentence followed by a long-term supervision order, that order will ultimately expire and Mr. Primmer will then be left unsupervised in the community. I must therefore be satisfied that the public can be adequately protected and that there is a reasonable possibility of eventual control of Mr. Primmer’s risk to reoffend in the community.

(iii) The Totality of the Evidence

[159] I must consider the totality of evidence in arriving at my decision as to whether there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public. There are four specific areas upon which the respondent relies to support his position that a less restrictive sentence will protect the public against the commission by him of a serious personal injury offence. These areas are:

• his conversion to the Islamic faith;
• his treatability;
• his demonstrated pro-social behaviour over the past 18 months; and
• application of the “burnout theory”.

[160] I will consider each of these areas of the evidence in turn.

A. Religious Conversion

[161] Since June 2013, Mr. Primmer has had a number of different religious associations which include Judaism for a period of approximately a year and most recently Islam. Mr. Primmer was espousing his strong Christian beliefs and faith during his interview in January 2014 yet at the same time was seeking Kosher meals while in prison. We know that as a youth he dabbled in Satanism all the while professing his commitment to the principles of Buddhism.

[162] His Imam spoke in glowing terms about Mr. Primmer’s adherence to the strict and arduous tenets and practices of the Islamic faith.

[163] Dr. Chaimowitz was asked to consider Mr. Primmer’s reasonable expectation of control in the community in the context of his conversion to Islam. In response, Dr. Chaimowitz candidly admitted that he did not know whether Mr. Primmer’s conversion was legitimate and indicated that there are three potential outcomes:

• true conversion whereby Mr. Primmer will maintain the positive tenements of the Islam religion when he returns to the community;
• true conversion that fades once Mr. Primmer returns to the community and is tempted by the triggers of his previous life; and
• last, his conversion is a charade manufactured by Mr. Primmer contemporaneous with these dangerous offender proceedings to provide evidence in support of a lesser sentence.

[164] It is uncontroverted on the evidence that Mr. Primmer’s conversion to Islam has brought about documented positive change in his behaviour.

B. Prosocial Behavioural Changes

[165] Not surprisingly, these dangerous offender proceedings have encouraged positive behaviour in Mr. Primmer. Since his convictions on the predicate offences and the Crown’s stated intention immediately following his convictions that it intended to pursue a dangerous offender designation, Mr. Primmer has become a model inmate. He is enrolled in legal studies at a university, has converted to Islam and is a mentor to other inmates. He has not shown outbursts of anger or violence since the incident in October 2015.

[166] Mr. Primmer’s most recent association with the Hells Angels was more than 4 years ago and Mr. Primmer’s own evidence given during a police interview conducted in January 2014 was that he no longer associates with the Hells Angels and in fact “hates them”.

[167] On October 29, 2015, inmate violence erupted in the common area of the unit. Mr. Primmer was initially observed not to engage; however, as the incident wore on Mr. Primmer joined in briefly and threw a punch at the inmate. Dr. Chaimowitz did not find his involvement to be significant and instead interpreted his limited involvement of delivering only a few punches and kicks and his delay in engaging, as a positive change in his behaviour demonstrating considerable control where typically he would not.

[168] As already outlined, Mr. Primmer has shown dedication to the Islam faith through his regular attendance at services and prayer and his knowledge of the Muslim prayers and the Qur’an.

[169] I have no reason to doubt the observations of Ms. Lesperance are accurate and that Mr. Primmer behaved in the manner Ms. Lesperance described. I found Ms. Lesperance to be honest and forthright and her evidence reliable. However, her evidence is of limited value in assessing the risk of Mr. Primmer’s future offending when not subject to strict controls and 24 hour supervision. Ms. Lesperance was not in a position to evaluate whether Mr. Primmer’s current conduct reflects a genuine and permanent change in behaviour or is merely a ruse recently contrived to avoid an indeterminate sentence.

C. Treatability

[170] The respondent asserts that he is treatable from a control perspective.

[171] I was directed by respondent’s counsel to the following evidence presented on the application as supportive of a finding that Mr. Primmer is treatable and therefore capable of being controlled such that the public can be adequately protected upon his release into the community following his custodial sentence:

• Dr. Cota testified that Mr. Primmer showed remorse for the death of Bill Welch and took responsibility for the offence. Dr. Cota also noted that during their time together, Mr. Primmer, while emotionally cut off at first, became more open and self-aware as treatment progressed.
• While serving his penitentiary sentence, he took the national substance abuse program. In the pre-program interview he acknowledged that he had a problem with alcohol and understood the link between the use of substances and crime. Dr. Cota testified that Mr. Primmer had good insight regarding his use of alcohol and that he was aware he could never drink again.
• While at CampDARE, a custodial wilderness-based facility for youth, Mr. Primmer showed leadership, was challenged and did well in school. All experts agree that Mr. Primmer performs well in activities focused on the outdoors and which involve physical activity.
• Mr. Primmer did not re-offend while on parole.

[172] Mr. Primmer relies on the decision in R. v. Carrie, a 2016 decision of this court. The court was unable to conclude Mr. Carrie was a dangerous offender or long-term offender and instead sentenced him on the predicate offences. In arriving at its decision, the court relied on a recent assessment which concluded that because of recent life changes and successful completion of treatment Mr. Carrie no longer presented a risk of danger. The evidence established that he had responded appropriately to relevant treatment and his family was willing to provide support when he was released into the community. In short, recent significant changes made by Mr. Carrie supported a finding that he no longer presented as a risk.

[173] Similar evidence does not exist for Mr. Primmer. Mr. Primmer does not have the support of family. There is no evidence that treatment has been successful or will be durable. The most glaring example of treatment being ineffective is Mr. Primmer’s use of cocaine and alcohol immediately upon his warrant expiry. This evidence demonstrates that not only was the treatment and counselling received during his eight-year prison term unsuccessful; he showed no desire or interest in continuing treatment to address his substance abuse disorder and anti-social personality disorder once all conditions of release were lifted.

[174] Another example of treatment while on parole being unsuccessful, is Mr. Primmer’s association with the Hell’s Angels. When faced with a choice between, on the one hand, engaging in legitimate employment as a professional MMA fighter as authorized in his Plan of Release and, on the other hand, using his skillset to promote the criminal exploits of the Hell’s Angels, Mr. Primmer chose the latter.

[175] It is well established on the evidence that Mr. Primmer suffers from a substance abuse disorder. He presents with an ad hoc desire to seek treatment and rehabilitate – that is, only when it suits his purposes. While he has shown a willingness to engage in treatment and programs while in custody, it has been, to a large degree, ineffective in actually treating and “curing” his anti-social disorder, narcissism and/or substance abuse issues.

[176] Dr. Klassen noted that approximately 15 prior treatment interventions intended to treat Mr. Primmer have not been successful in effecting a change. Both Dr. Klassen and Dr. Cota considered future treatment as being beneficial from only a control or monitoring perspective. Dr. Klassen commented as follows:

[T]reatment is not to be the cornerstone of our future thinking regarding this gentleman.

I think what I would derive from that is, from his treatment history, is that supervision and external controls and management would need to be the cornerstone of our thinking about risk management as opposed to treatment. That doesn’t mean that he couldn’t continue to be offered treatment. I think Dr. Cota has made reference to treatment having some value as a monitoring function and I would agree. I think I’ve said the same thing in my report.

But I don’t think we go forward with this gentleman at this point and say, notwithstanding that history, treatment is going to be effective in protecting the community.

[177] I am not satisfied that the mere hope and possibility Mr. Primmer will follow through on his now-stated intention to seek treatment allows me to conclude that he can be successfully treated and therefore controlled through treatment. At best, treatment would be a means to monitor Mr. Primmer in the community. I cannot conclude on the evidence that Mr. Primmer is “treatable”.

D. Burnout Theory

[178] Last, the respondent argues that a determinate sentence of six to eight years followed by a 10 year long-term supervision order will take Mr. Primmer to age 50. This is the age which studies have shown marks a significant decline in an offender’s violent offending. However, “burnout” is a general trend based on group data.

[179] Dr. Chaimowitz is of the view that age-related decline did not apply to Mr. Primmer. Dr. Klassen declined to provide a view as to how the concept of “burn-out” might apply to Mr. Primmer. There is certainly no evidence suggesting that by age 50 he will lack the physical strength to violently offend. As was aptly noted by Dr. Chaimowitz - an offender will not be young forever but can be immature forever. There is no evidence to suggest future maturation by Mr. Primmer is anything more than a possibility.

[180] With respect to the application of the “burn-out theory” to a particular offender, Justice Dunnet noted in R. v. Nicholas [^19]:

Assuming that the risk for re-offence declines as Mr. Nicholas ages, there is no way of accurately estimating the extent by which it will be reduced at any given point along the continuum, as well as the extent to which it will be reduced at the point at which he might be released into the community. While it is reasonable to assume that age-related decline will have some impact on the risk, the magnitude of the impact is speculative with Mr. Nicholas.

[181] These comments are equally applicable to Mr. Primmer. It would be purely speculative to assume that as Mr. Primmer ages his violent tendencies will significantly decline to the point at which he no longer poses a risk of danger to the community.

[182] The violence against T.E. and Ms. Gallagher demonstrates escalating aggression and brutality. The theory that the likelihood of Mr. Primmer reoffending is significantly reduced from the age of 50 onward has little application to the circumstances of Mr. Primmer. Intimate partner violence is perpetrated against vulnerable persons away from the public’s eye. There is no evidence to suggest Mr. Primmer’s need to control and dominate his intimate partners will reduce over time.

(iv) Habitual Lying

[183] In considering the totality of the evidence and in particular deciding whether adequate controls and supervision can be developed to ensure the public’s protection, the significance of Mr. Primmer’s chronic inability to tell the truth cannot be overstated.

[184] His counsel acknowledged both in written and oral submissions that Mr. Primmer has a history of lying. Dr. Chaimowitz testified that Mr. Primmer “has a long sustained history of not telling the truth.” On the evidentiary record, it would be impossible to suggest otherwise.

[185] Mr. Primmer has a history of lying to his parole and probation officers. He has a history of lying to the police. He has a history of lying to his treatment professionals. Some of the more flagrant examples of Mr. Primmer’s dishonesty and deception include:

• He denied any intimate relationship with his son’s mother. Ultimately, Ms. Pouliot reported to his parole officer that she and Mr. Primmer were dating and had been for some time.
• He denied knowing Ms. Barrett prior to the evening of meeting Ms. Gallagher yet was texting her the next morning professing his love to her.
• He denied to his parole officer that he had ever met S.S. face-to-face and admitted they only exchanged text messages. During his interview with Detective Constable Vandenende on January 15, 2014, he acknowledged dating S.S. and having sex with her on at least three occasions.
• During his testimony at the trial of the assault charge involving Mr. McLagan at EMDC, Mr. Primmer claimed to have little experience with mixed martial arts despite having fought and trained professionally as a mixed martial arts fighter during the period 2009-2012. In fact, Mr. Primmer was released on parole relying on his parole officer’s plan which involved employment as a MMA fighter.
• In his discussions with Ms. Black, his probation officer, and just as he had in the past with his parole officer and the Parole Board of Canada, Mr. Primmer denied any involvement with the Hells Angels motorcycle club claiming he attended a Christmas party at their clubhouse and had no other ties. He later admitted to working towards membership status. His friend confirmed he had been involved with the Hell’s Angels for five years and was the enforcer of the London chapter clubhouse.
• He lied about having a job lined up in Huntsville.
• During his interview with Detective Vandenende, Mr. Primmer swore on the Bible and on his son, Milo’s, life that he never laid a hand on S.S. He pleaded guilty to assaulting S.S. on April 30, 2014.

[186] Simply stated, Mr. Primmer has no respect for the truth. He tells treatment professionals, corrections officials, parole and probation officers, the police and potential intimate partners what they want to hear or what will protect and serve his own interests. Mr. Primmer is smart, he is cunning and he is manipulative. The issue then becomes what level of control is necessary and more importantly, possible.

(v) Level of Control and Supervision Required

[187] The most compelling evidence to support a lesser sentence is the agreement among all three experts that the risk to the public can be managed with proper controls in place.

[188] The respondent argues that in support of a determinate sentence followed by a long-term supervision order, the court should consider the period Mr. Primmer was on parole and his ability to live his life without re-offending while under supervision. However, an important distinction must be made. Mr. Primmer did not violently re-offend while under supervision; however, he did breach his conditions of release including the condition that he report intimate relationships. Moreover, following his release from prison, the nature of his violent offending escalated to intimate partner violence and his substance abuse escalated from alcohol to cocaine.

[189] Both Drs. Chaimowitz and Klassen agree that provided adequate controls and supervision are in place in the community, the risk of Mr. Primmer violently reoffending is reduced to an acceptable level. Dr. Klassen’s proposed conditions of release into the community include:

• treatment with respect to values and attitudes and management of aggressive behaviour only as a monitoring function;
• treatment for substance use as a monitoring function;
• abstinence from the use of alcohol and non-prescribed agents and the requirement to submit samples of breath or urine;
• maintenance of employment subject to verification by third parties;
• refraining from associating with individuals known to have a criminal record other than when such association is inevitable; and
• regular disclosure of financial circumstances and any current or anticipated intimate relationships.

[190] Dr. Chaimowitz proposed similar controls which include:

• close monitoring for substance use and treatment for substance use;
• treatment and programming to develop strategies to manage his aggression, violence and other antisocial activities;
• all intimate partner relationships to be vetted and monitored very closely;
• obtaining gainful legitimate employment that is pro-social and contributes to society; and
• close monitoring by clinicians.

[191] Under both sets of conditions, the extent of the monitoring/verification required to ensure compliance is not possible. Aside from intimate partners of Mr. Primmer coming forward to report their relationship with him as Ms. Pouliot did, how does one verify Mr. Primmer’s self-reporting of intimate partners? Consider that the assault on Ms. Gallagher occurred only a few hours after they first met. A requirement to self-report intimate partners, assuming Mr. Primmer adhered to such a condition, would not have protected her.

[192] Aside from random drug testing, how does one verify Mr. Primmer’s drug and alcohol abstinence? Twenty-four hour supervision is not available. A residency condition requiring Mr. Primmer to reside in a halfway house does not involve 24 hour supervision. If house arrest or 24-hour supervision is required to ensure the public’s safety, the Province does not have the resources to accommodate a long-term supervision order as requested by the respondent and nor is the Province required to provide this level of resource. The court in R. v. Little [^20] rejected intensive supervision as an adequate control where the availability of such supervision was uncertain. Cronk J.A. stated at paras. 59 and 62 as follows:

In my view, both s. 753(1)(c) of the Code and Johnson envisage that where the determination that an offender’s risk may be safely controlled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of the resources necessary to implement such supervision effectively cannot be uncertain. To hold otherwise would be speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided.

While I recognize that under s. 134.1(2) of the Corrections and Conditional Release Act, conditions of supervision may include those that are “reasonable and necessary in order to protect society”, I do not believe that the statute or the long-term offender regime is intended to virtually replicate jail-like conditions in the community for offenders released from custody. Where restrictive conditions of this type, like those proposed by the trial judge in this case, are necessary to control the risk of reoffending by an offender, and to thereby protect the public, the dangerous offender provisions of the Code are engaged. In other words, protection of the public is paramount.

[193] I am not satisfied that intensive supervision of Mr. Primmer in the community as proposed by the experts is a realistic means of protecting the public. There is no evidence of available resources adequate to ensure the level of supervision and the extent of controls needed in a long-term supervision order can be achieved. Because Mr. Primmer is a habitual liar and cannot be trusted to do as he is court-ordered and furthermore, his offending has expanded to intimate partner violence, the checks and balances needed to ensure the protection of the public are not workable. Only maximum control and 24 hour supervision will ensure the safety of the public and, in particular, potential intimate partners of Mr. Primmer. That level of control and supervision cannot be achieved in the community.

(vi) Risk to Public upon expiration of LTSO

[194] Even if I was able to conclude that acceptable and reasonable controls and supervision could be put in place to reduce the risk to an acceptable level during any period of long-term supervision, there is no evidence which alleviates the concern raised by the three experts to the effect that Mr. Primmer poses a high risk of recidivism of violent re-offending in an unstructured environment.

[195] Seven months following his warranty expiry date, free of all controls and supervision, Mr. Primmer beat T.E. to the point of unconsciousness and on that day the cycle of intimate partner violence began. Despite Mr. Primmer’s test scores, Dr. Chaimowitz used his clinical override to assess Mr. Primmer’s current risk of future offending as high.

[196] Dr. Chaimowitz concluded his evidence by saying:

All of the positive behaviours displayed by Mr. Primmer over the past year could be a charade but it is possible they are not a charade and Mr. Primmer is not a risk. If the positive behaviours are a charade the risk is high for murder or serious personal injury by Mr. Primmer.

[197] There is no evidence to support a determinate period following which Mr. Primmer’s monitoring may safely conclude. Treatment benefits have never translated into the community for Mr. Primmer. While Mr. Mohammed testified that the Islamic community would support Mr. Primmer upon his release, we also heard from Detective Rupert that it is likely the Hell’s Angels would similarly accept Mr. Primmer back into their fold. The evidence establishes that when faced with the decision of choosing a pro-social lifestyle over a pro-criminal lifestyle, Mr. Primmer has consistently chosen the latter. Once the controls are stripped away, Mr. Primmer is simply unable to resist his pro-criminal tendencies.

[198] After considering the evidence in its totality, I conclude that Mr. Primmer is someone who manipulates others, who is incapable of genuine remorse and resistant to treatment. The evidence of Ms. Lesperance and his Imam is not persuasive towards a different conclusion. His recent cooperative and positive attitude described by Ms. Lesperance and Mr. Mohammed and his conversion to Islam are more likely a product of his narcissistic, controlling and manipulative personality than evidence of a changed man who has permanently interrupted his 12-year cycle of violence. Simply put, I do not believe his recent efforts are genuine. He is prone to lying as it suits him. Never more chilling and disturbing was his interview with Detective Vandenende during which, with tears in his eyes, he swore on his son’s life that he did not assault S.S. only to plead guilty to this assault two weeks later.

[199] I am not satisfied that there is a reasonable possibility of eventual control of the risks that Mr. Primmer presents to the community. It is impossible to reach such a conclusion on this evidentiary record. A long-term supervision order will expire at which time all controls will be removed. Aside from an indeterminate sentence, an indefinite supervision order is not available as a possible option.

[200] Mr. Primmer’s violent history has repeated itself many times over and there is no reason to believe that if given the opportunity in an uncontrolled setting, history will not repeat itself again. There is no evidence to support a finding that the public threat can be reduced to an acceptable level through either a determinate period of detention, or a determinate period of detention followed by a long-term supervision order.

7. Conclusion

[201] Application of the statutory criteria compels the finding that Mr. Primmer is a dangerous offender and that, to ensure the protection of the public, Mr. Primmer must be sentenced to a term in the penitentiary for an indeterminate period on the assault causing bodily harm and aggravated assault convictions.

[202] A sentence of time-served shall be imposed on the simple assault and uttering threats convictions.

[203] A s. 109(3) weapons prohibition order for life was issued on September 28, 2015. A mandatory DNA order was made on September 28, 2015 pursuant to s. 487.051(1) of the Code and a discretionary DNA order was made pursuant to s. 487.051(3) of the Code on August 30, 2016.

[204] An order pursuant to s. 760 of the Code shall issue requiring a copy of all reports and testimony given by the psychiatrists, psychologists and criminologists, and other experts along with a copy of these reasons for sentence, be prepared and forwarded to Correctional Services Canada.

“Justice A. K. Mitchell” Justice A. K. Mitchell Released: May 29, 2017 (ORALLY)

Footnotes

[^1]: 2015 ONSC 4437. [^2]: Had he interviewed Mr. Primmer he would have added the HCR-20 as an additional diagnostic tool. [^3]: Presentence custody net of 18 month sentence on unrelated offence served concurrently. April 30th, 2014 – September 15, 2015 (16.5 months) + September 15, 2016 – May 29, 2017 (8.5 months) = 25 months x 1.5 = 37.5 months. [^4]: See s. 753(4.1) of the Code. [^5]: (2004), , 70 O.R. (3d) 257, 186 C.C.C. (3d) 62 (C.A.). [^6]: 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.) at para. 6. [^7]: R. v. Steele, 2014 SCC 61, [2014] S.C.J. No. 61 at paras. 38-41. [^8]: See R. v. Naess, [2005] O.J. No. 936 (S.C.J.) at para. 63; Also see R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.) at para. 118. [^9]: See R. v. Szostak 2014 ONCA 15, [2014] O.J. No. 95 (C.A.). [^10]: 2011 ONCA 840 at para. 40. [^11]: Supra. [^12]: R. v. Newman, [1994] N.J. No. 5 (C.A.). [^13]: R. v. Currie (1997) 115 CCC (3d) 207 (S.C.C.) at p. 223. [^14]: 2013 ONSC 589, [2013] O.J. No. 490 (S.C.J.) at para. 18. [^15]: See R. v. Naess, supra, at para. 61. [^16]: Supra, at para. 111. [^17]: R. v. Hogg, supra, at paras. 34-43. [^18]: See R. v. Dorsey, [2009] No. 5368 (S.C.J.) at paras. 101 and 102. [^19]: 2010 ONSC 2929 at para. 170. [^20]: (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.).