Court of Appeal for Ontario

Date: 2018-12-06 Docket: C56279 & C57231

Judges: Rouleau, Watt and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Joseph Dennhardt and Michael Plumpton Appellants

Counsel

Richard J. Garrett, for Joseph Dennhardt

Lisa Freeman, for Michael Plumpton

Christine Tier, for the respondent

Heard and released orally: November 30, 2018

On appeal from: the convictions entered on March 29, 2012 and the sentence imposed on June 21, 2012 by Justice Dianne Pettit Baig of the Ontario Court of Justice.

Reasons for Decision

[1] After a joint trial before a judge of the Ontario Court of Justice, the appellants were convicted of several offences arising out of a residential break-in, in which an occupant of the premises was assaulted, and property damaged.

[2] Each was sentenced to a term of imprisonment in a federal penitentiary. Each appealed. Counsel for Plumpton perfected his appeal some time ago. Counsel for Dennhardt perfected his appeal today, the day scheduled for hearing.

[3] Counsel for the appellants advance four grounds of appeal. They contend:

i. that a miscarriage of justice occurred because trial counsel for Plumpton was in a conflict of interest, since he represented not only the appellant, but also, on an unrelated matter, a principal witness for the Crown whom he did not cross-examine at the appellants' joint trial;

ii. that the trial judge erred in prohibiting trial counsel for both appellants from trying to prove prior inconsistent oral statements made by prosecution witnesses without consideration of s. 11 of the Canada Evidence Act;

iii. that the trial judge erred in relying on in-dock identification and inadmissible hearsay evidence to convict the appellant Dennhardt; and

iv. that the trial judge erred in proceeding with the trial on different occasions in the absence of the appellant Plumpton.

[4] In this court, in the best traditions of the role of Crown counsel in criminal cases, Ms. Tier acknowledges that the trial judge erred in each respect alleged by the appellants. She also concedes that:

i. trial counsel for Plumpton was in an obvious conflict of interest for his contemporaneous representation of the appellant Plumpton and a principal Crown witness, Hansen, on an unrelated criminal matter;

ii. this representation led to a miscarriage of justice; and

iii. the fresh evidence adduced in support of an ineffective assistance of counsel claim undermines the integrity of the verdicts rendered in relation to both appellants.

[5] Our review of the trial record and fresh evidence, which we would admit on the appeals because it is in the interests of justice to do so, satisfies us that these convictions cannot stand. This is, as we see it, the inevitable consequence of the cumulative effect of the several legal errors made by the trial judge, and the impact of the conflict of interest of trial counsel for Plumpton on the integrity of the trial process and the reliability of the verdicts rendered. A miscarriage of justice has occurred.

[6] As to remedy, Crown counsel contends that the appropriate order is to quash the convictions and order a new trial. She tells us that a new trial is unlikely because:

i. a principal Crown witness has died, and due to the errors in connection with his evidence at the first trial, it would be unlikely that the evidence could be admitted at any new trial under s. 715 of the Criminal Code; and

ii. the appellants have served the penitentiary sentences imposed upon them.

[7] Counsel for the appellants, neither of whom contends that the verdict was unreasonable, seeks entry of an acquittal, essentially for the same reasons the Crown seeks an order for a new trial.

[8] We are not persuaded that this is a case in which to enter an acquittal on the grounds advanced by the appellants.

[9] In the result, we allow the appeals from conviction, set aside the convictions and order a new trial.

[10] We trust that in the circumstances, Crown counsel will exercise their discretion to enter a stay of proceedings.

[11] The appellants also appealed their sentences. The sentences have been served, thus the appeals from sentence have become moot and are dismissed.

Paul Rouleau J.A.

David Watt J.A.

Grant Huscroft J.A.