CITATION: R. v. Lindsey, 2011 ONCA 420
DATE: 20110602
DOCKET: C51493
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Feldman and LaForme JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
David William Joseph Lindsey
Appellant
Michael S. Mandelcorn, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: May 30, 2011
On appeal from the conviction entered by a jury, presided over by Justice G. Thomson of the Superior Court of Justice, on July 31, 2009 and the sentence imposed dated September 3, 2009.
ENDORSEMENT
[1] The appellant appeals his conviction by a judge and jury for aggravated assault and assault with a weapon. He raises several grounds of appeal. We need deal with only one.
[2] The appellant argues that the trial judge erred in allowing the Crown to elicit his previous criminal record or by not editing that record. The appellant submits that the prejudice resulting from the error was not satisfactorily addressed in the trial judge’s charge.
[3] The appellant had three prior convictions for break and enter and theft. Those convictions occurred between 12 and 14 years prior to his conviction on the within offence and took place when the appellant was a youth. The appellant had four more recent convictions, three for assault and one for uttering threats.
[4] In his Corbett ruling, the trial judge reviewed the appropriate authorities. However, in para. 23 of his ruling, he made what we view to be two errors. First, he determined that the record should be admitted because “he [the appellant] was well aware of aggressive behaviour. He was not a neophyte person who was confronted with a violent situation for the first or second time.” As we read this reason, the trial judge was saying that the record of previous assaults should be admitted because it showed that the appellant had a disposition to violence. That was an error.
[5] Second, the trial judge said that it would be improper to exclude the appellant’s record because the jury would not have a balanced view of the complainant in comparison to the appellant. However, the appellant had not cross-examined the complainant with respect to her character. He only challenged her version of the events giving rise to the charge. He was answering the charge, nothing more. This was not a case where the trial judge needed to admit the record in order to paint a balanced picture of the respective characters of the complainant and the accused.
[6] During the appellant’s examination-in-chief, he was asked briefly about the circumstances giving rise to one of his previous assault convictions. The Crown cross-examined him as to the circumstances of that offence.
[7] The result of this trial depended almost entirely on the jury’s assessment of the credibility of the complainant and of the appellant on the issue of self-defence.
[8] In his charge to the jury, the trial judge gave the proper limiting instruction with respect to the use the jury could make of the appellant’s criminal record. However, in discussing the appellant’s credibility, the trial judge referred to the Crown’s cross-examination of the appellant about the previous assault conviction suggesting, as we read it, that the jury could draw an adverse inference with respect to the appellant’s credibility because of his evidence with respect to the events giving rise to the earlier conviction.
[9] Taking into consideration our view that the appellant’s full criminal record should not have been admitted into evidence, the nature of the references to the record during the Crown’s cross-examination of the appellant, and the trial judge’s references to the Crown’s cross-examination in his charge to the jury, we are not satisfied that the charge was sufficient to warn the jury about the improper use of the record. We think that there is a serious risk that the jury may have used the appellant’s criminal record impermissibly as evidence of the appellant’s disposition to violent behaviour.
[10] Accordingly, we quash the convictions and order a new trial.
“D. O’Connor A.C.J.O.”
“K. Feldman J.A.”
“H.S. LaForme J.A.”