



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dennhardt, 2018 ONCA 997

DATE: 20181206

DOCKET: C56279 & C57231

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Dennhardt and Michael Plumpton

Appellants

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.


