Dean Penney has filed a handwritten notice of appeal with the Court of Appeal of Newfoundland and Labrador, arguing all evidence gained from a covert RCMP operation should have been excluded from his trial.
Penney was convicted of killing his estranged wife, Jennifer Hillier-Penney, by a jury in May.
Hillier-Penney went missing in November of 2016 and her body has never been found. The Crown’s case was built around a pair of confessions Penney provided to an undercover RCMP officer posing as a crime boss.
Those confessions followed a four-year operation that saw Penney participate in what he believed to be a criminal organization, completing a wide range of tasks and improving his standing within the fake gang before being interviewed for a job by the officer posing as the kingpin. The tactic is known as a Mr. Big sting.
“The judge erred in his application of the law as it applies to the Mr. Big sting operation,” Penney wrote. “The evidence obtained should not have been provided to the jury.”
Mr. Big stings are inadmissible by default, unless the Crown can show the police stayed within a set of boundaries established by the Supreme Court of Canada.
Those boundaries include the length of the operation, the number of interactions, the nature of the relationship that developed, financial inducements offered by the police, and the personal characteristics of the accused.
Mr. Big stings are inadmissible by default. Here’s why Dean Penney’s was allowed at trial
In Penney’s case, Justice Vikas Khaladkar ruled the RCMP stayed within the limits set out by the country’s highest court.
Before the trial started, the defence had argued the evidence should be inadmissible.
They said Penney was in dire financial straits when the prospect of a full-time job within the organization was presented to him. He’d lost the family business and suffered a devastating fishing season in which he didn’t earn enough to qualify for employment insurance.
“He’s not destitute but he’s having hardship at the exact time they offer him this job as the captain of a yacht,” defence lawyer Mark Gruchy argued at the end of the pretrial hearing in March. “He keeps saying he needs the money, saying he’s down and out and that he’s screwed.”
Khaladkar pointed out that Penney was only paid about $27,000 over the course of the operation.
“In my view, the money paid over time was not particularly significant,” he said, after noting Penney was not destitute and had property he could have sold. “Certainly, it was not sufficient to be coercive or overwhelming.”
The defence also argued Penney was heavily influenced by the close-knit relationship he formed with the RCMP primary operator — a man who went by the pseudonym Vic. The two became best friends throughout the four-year operation, with Vic testifying at trial that it reached a point where he hoped they would uncover evidence to prove Penney was innocent.
Gruchy said this relationship blossomed at a time when Penney’s wife had disappeared, his oldest daughter blamed him for it, and his mother had died.
“He’s a mess,” Gruchy said. “He’s in a bad place … and it’s in that bad place that he becomes friends with Vic.”
Their relationship grew closer over those four years, as they participated in missions together — ranging from transporting laptops Penney believed were stolen from the RCMP, to removing firearms from an armed forces base, and a fake heist of a fuel tanker near the American border in Alberta.
However, Khaladkar pointed out in his decision that Penney still had the support of his youngest daughter, his father and his girlfriend at various points throughout the operation.
“Although some of his other relationships in the community had become strained after the disappearance of his wife, I am not satisfied that the bond he formed with UC-Vic displaced his ordinary social world in a manner that raises a serious concern about the reliability of the confession,” Khaladkar said in his decision.
The defence also argued Penney was an easy mark given his Grade 8 education. The Crown countered — and Khaladkar agreed — that Penney was more sophisticated than his education suggested.
In the pretrial hearing, and again at trial, Gruchy argued Penney was intimidated by the organization after everything he’d seen.
When it came time to sit down with the boss on a yacht in Vancouver, Gruchy argued Penney was ready to say whatever it took to get out of there safely, and with a source of income guaranteed.
“Dean Penney had every reason to lie or tell a tale,” Gruchy told the court in March.
Ultimately, the jury decided otherwise. They heard both of Penney’s recorded confessions, in which he first described pushing Hillier-Penney over the stairs in their garage, with her striking her head off the corner of his gun safe. In the second conversation, Penney said he then bludgeoned her with a mallet as she lay bleeding on the floor.
The jury requested to watch those videos again during deliberations.
They returned with a guilty verdict after being sequestered for parts of five days.
At his sentencing earlier this month, Penney proclaimed his innocence to the court.
“I maintain my innocence and I hope to be vindicated soon,” he said.
Penney has an automatic right to appeal because he is appealing a question of law. That means the province’s appeal court will have to hear his case.
He is currently unrepresented, hence the handwritten appeal sent from the West Coast Correctional Centre in Stephenville. He was represented by lawyers from Legal Aid at trial. His appeal will be forwarded to Legal Aid to determine whether or not they continue representing him on his appeal.
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