Use of criminal record only with great care

R. v. Hawthorne, 2011 ONCA 216 is a good reminder that the criminal record of an accused must be considered with great caution. Absent a similar fact evidence analysis the record is useful only for credibility and other uses may be reversible error:



[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.