





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 [complainants] 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
    Crowns case, the trial judge again emphasized that none of the complainants
    family had a criminal record.

[3]

The summary conviction appeal judge rejected the
    submission that the trial judge had made improper use of the appellants 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 judges use of the appellants prior
    record.  Accordingly, leave to appeal
    should be granted under the second branch of
R. v. R
.(
R.)
(2008), 90 O.R. (3d) 641.

[5]

The appellants 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 judges 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 appellants
    criminal record, regrettably, the chain of reasoning employed in his reasons
    for conviction raise a serious concern that the appellants 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 judges 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


