CITATION: R. v. Hawthorne, 2011 ONCA 216

DATE: 20110321

DOCKET: C49317

COURT OF APPEAL FOR ONTARIO

Sharpe, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Sherriene Hawthorne

Appellant

Sherriene Hawthorne, acting in person

Jill Copeland, duty counsel

Howard Leibovich, for the respondent

Heard: March 14, 2011

On appeal from the judgment of Justice Theresa Maddalena of the Superior Court of Justice dated August 1, 2008, dismissing a summary conviction appeal from a conviction entered by Justice Peter Tetley of the Ontario Court of Justice dated June 6, 2007.

By the Court:

[1] The appellant was convicted of assault arising out of a confrontation with her landlord. The landlord, supported by her family members, and the appellant gave conflicting accounts of the incident. Each alleged that it was the other who had committed an assault. The central issue for the trial judge was credibility.

[2] In his reasons for conviction, the trial judge placed considerable emphasis on the fact that the appellant had two prior convictions for assault and that the complainant and her family had no prior convictions. The trial judge stated, “I am mindful of the fact that… none of the [complainant’s] family has criminal records and Miss Hawthorne has been convicted of assault related offences on two previous occasions”. When listing the factors that supported the Crown’s case, the trial judge again emphasized that none of the complainant’s family had a criminal record.

[3] The summary conviction appeal judge rejected the submission that the trial judge had made improper use of the appellant’s prior record, holding that the trial judge did not give the prior record “undue weight”.

[4] In our view, the summary conviction appeal judge erred in law in her assessment of the trial judge’s use of the appellant’s prior record. Accordingly, leave to appeal should be granted under the second branch of R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641.

[5] The appellant’s assault convictions were not offences involving dishonesty. They had limited value when it came to assessing her credibility. Yet, given the offences’ similarity to the offence with which the appellant was charged, there was a significant risk that her prior convictions would be improperly used to indicate her propensity to commit assault. The trial judge’s emphasis on those convictions, and on the absence of prior convictions of the complainant and her family as a factor significantly bolstering their credibility, leaves us with the distinct impression that, faced with conflicting accounts of the incident, the trial judge found against the appellant because of her propensity to commit assault.

[6] While the experienced trial judge was undoubtedly aware of the law relating to the limited use he could make of the appellant’s criminal record, regrettably, the chain of reasoning employed in his reasons for conviction raise a serious concern that the appellant’s criminal record was improperly used. In our view, the summary conviction appeal judge simply failed to come to grips with this aspect of the trial judge’s reasons.

[7] Accordingly, leave to appeal is granted, the appeal is allowed, the conviction is set aside and a new trial is ordered. It will be for the Crown to decide whether to proceed with a new trial, given the circumstances of this case, the circumstances of the appellant and the time that has passed since this incident.

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”

RELEASED: March 21, 2011