





CITATION:
R. v. Lindsey, 2011
      ONCA 420



DATE:  20110602



DOCKET: C51493







COURT OF APPEAL
          FOR ONTARIO



OConnor 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 judges 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 appellants 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 appellants 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 jurys 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 appellants criminal
    record.  However, in discussing the
    appellants credibility, the trial judge referred to the Crowns
    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 appellants credibility because of his evidence with respect to
    the events giving rise to the earlier conviction.

[9]

Taking into consideration our view that the appellants
    full criminal record should not have been admitted into evidence, the nature of
    the references to the record during the Crowns cross-examination of the
    appellant, and the trial judges references to the Crowns 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 appellants criminal record impermissibly as
    evidence of the appellants disposition to violent behaviour.

[10]

Accordingly,
    we quash the convictions and order a new trial.

D. OConnor A.C.J.O.

K. Feldman J.A.

H.S. LaForme J.A.


