R. v. Hanemaayer

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Rosenberg,Simmons,Speyer
• Neutral Citation: 2008 ONCA 580
• Citation: (2008), 239 O.A.C. 241 (CA),2008 ONCA 580,234 CCC (3d) 3,[2008] CarswellOnt 4698,[2008] OJ No 3087 (QL),239 OAC 241,78 WCB (2d) 399,239 O.A.C. 241,[2008] O.J. No 3087 (QL),(2008), 239 OAC 241 (CA)
• Date: 25 June 2008

R. v. Hanemaayer (A.) (2008), 239 O.A.C. 241 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AU.015

Her Majesty the Queen (respondent) v. Anthony Hanemaayer (appellant)

(C48928; 2008 ONCA 580)

Indexed As: R. v. Hanemaayer (A.)

Ontario Court of Appeal

Rosenberg and Simmons, JJ.A. and Speyer, J.(ad hoc)

June 25, 2008.

Summary:

A homeowner identified the accused as the person who broke into her home and assaulted her teenage daughter. The accused was arrested on December 18, 1987. The accused denied having any knowledge of the crime. The accused was released on bail, but when he failed to appear for his preliminary inquiry, he was arrested and detained in custody until his trial. The trial commenced on October 17, 1989. On the second day of trial, after the homeowner had completed her testimony, the accused pleaded guilty to break and enter and committing an assault and assault while threatening to use a weapon. He was convicted on the break and enter and the second charge was stayed pursuant to the Kienapple doctrine. The accused was sentenced to two years' imprisonment less one day in accordance with a joint submission. In 2005 and 2006, after receiving an e-mail from the lawyer for the notorious convict Paul Bernardo, the police conducted a further investigation and concluded that there was no doubt that Bernardo had committed the offences to which the accused had pleaded guilty. With the Crown's consent, the accused was granted an extension of time to appeal his conviction. The Crown agreed that fresh evidence in the form of the results of the police re-investigation and the accused's affidavit should be admitted into evidence and that the appeal should be allowed.

The Ontario Court of Appeal admitted the fresh evidence, allowed the appeal, set aside the guilty pleas, set aside the conviction and the conditional stay of proceedings and entered acquittals on both counts.

Criminal Law - Topic 4229

Procedure - Pleas - Guilty plea - Variation of conviction on appeal - On December 18, 1987, the accused was arrested respecting a break, enter and assault - The accused denied guilt - When the accused failed to appear for his preliminary inquiry, he was arrested and detained in custody until his trial - On the second day of trial, after the homeowner had completed her testimony, the accused pleaded guilty to break and enter and committing an assault and assault while threatening to use a weapon - He was convicted for the break and enter - The second charge was stayed - In 2005 and 2006, after receiving an e-mail from the lawyer for the notorious convict Paul Bernardo, the police re-investigated and concluded that there was no doubt that Bernardo had committed the offences to which the accused had pleaded guilty - With the Crown's consent, the accused was granted an extension of time to appeal - The Ontario Court of Appeal allowed the accused's appeal - The accused's plea met the requirements of a valid guilty plea: it was voluntary, unequivocal and informed - However, the court could not ignore the dilemma that the accused was facing in 1987 - He had spent eight months in jail awaiting trial and was facing the prospects of a further six years' imprisonment - The justice system held out a powerful inducement that by pleading guilty he would not go to jail - The court retained a discretion to receive fresh evidence to explain the circumstances that led to a guilty plea and that demonstrated that a miscarriage of justice had occurred - As a necessary corollary to that power, the court had the power to set aside the plea where it was in the interest of justice, even though many years had passed - This was one of those cases - See paragraphs 16 to 20.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 4229 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Criminal Law - Topic 4229 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - In 1987, based on a homeowner's identification evidence, the accused was arrested respecting a break, enter and assault - The accused denied guilt, but after hearing homeowner's testimony he changed his plea to guilty - He was convicted of break and enter and committing an assault - In 2005 and 2006, the police reinvestigated and concluded that there was no doubt that another person had committed the crime to which the accused had pleaded guilty - The Ontario Court of Appeal allowed the accused's appeal and acquitted him - The court discussed the following concerns that arose from the homeowner's evidence and that demonstrated the frailties of eyewitness identification: (1) there was no circumstantial evidence connecting the accused to the crime - The fact that he was working in the area was not circumstantial evidence inculpating him, but might explain why the homeowner picked him out of the line-up; (2) the photographic line-up was an array rather than sequential; (3) the accused's picture was different than others in the array; (4) the officers conducting the line-up were involved in the investigation and knew the suspect's identity; (5) serious contamination was caused by the investigating officers when they informed the homeowner that she had identified the suspect; and (6) no permanent record was made of the line-up procedure - The case represented an example of how flawed identification procedures could contribute to miscarriages of justice and the importance of taking great care in conducting those procedures - Mistaken eyewitness identification was the overwhelming factor leading to wrongful convictions - See paragraphs 21 to 29.

Criminal Law - Topic 5252

Evidence and witnesses - Identification - From photographs - Use of photos by police - [See Criminal Law - Topic 5241 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 10].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R. (3d) 514 (C.A.), refd to. [para. 16].

R. v. Taillefer (B.) (2003), 313 N.R. 1; 179 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 20, footnote 1].

R. v. Hibbert (K.R.) (2002), 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 163 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 21].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2005), 202 O.A.C. 310; 76 O.R.(3d) 481 (C.A.), affd. [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 24].

Authors and Works Noticed:

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), pp. 27 [para. 29]; 28 [paras. 21, 22, 23]; 32 [paras. 25, 26].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.

Counsel:

James Lockyer, for the appellant;

Howard Leibovich, for the respondent.

This appeal was heard on June 25, 2008, by Rosenberg and Simmons, JJ.A., and Speyer, J.(ad hoc), of the Ontario Court of Appeal. The decision of the court was delivered orally on June 25, 2008, and Rosenberg, J.A., released the following written reasons for the court on August 11, 2008.