Truth and Honour

by Greg Marquis

  On Wednesday, November 12, presiding judge Marco Cloutier read the charge: Dennis was formally charged at the Saint John Law Courts with second-degree murder. The prisoner, described as unshaven and “wearing a scruffy grey sweatshirt,” did not speak in court. The Criminal Code of Canada defines second-degree murder as all other murder other than first-degree (meaning all murder not planned in advance). Typically these are “heat-of-the-moment” crimes but the Crown still has to prove the intent to kill.24 In the ensuing months, there was occasional speculation that Oland may have been offered a deal if he plead guilty to a charge of manslaughter; there is no evidence of this. Fighting a charge of second-degree murder, according to Professor O’Byrne, is “a roll of the dice,” as a guilty verdict results in a mandatory ten years in prison before parole eligibility. In an interview with the author, O’Byrne spoke of a scenario where an individual charged with killing a family member as the result of an argument would be advised by a legal-aid lawyer to accept a deal. A manslaughter conviction can result in more than ten years in prison, but a person with a clean record and positive character references could plausibly be sentenced to five years, and be subjected to early release after three.25

  Members of Oland’s family, including his wife, mother, and uncle Derek, were present when Dennis was brought to court. So were several reporters. Bill Teed sat with the family and Gary Miller represented Dennis. It is rare to see well-dressed middle-class people, a significant number of reporters, and private defence lawyers in a criminal proceeding in Saint John (or anywhere else in Canada). Neither the lawyers nor members of the family spoke directly to the media, but the family did issue written statements that week expressing their unquestioning support for Dennis, claiming that he was innocent, and vowing to trust “the judicial process.” Their official statement read: “We believe our nephew and cousin Dennis is, in fact, innocent, and we will support him and his family members through the course of whatever legal actions unfold.” A statement issued and signed by his mother, wife, and sisters explained: “We know Dennis is innocent. We are devastated that this nightmare for Dennis and for all of us is going to continue.”26 The statement also called on the SJPF “to turn their attention to figure out who is really responsible for Dick’s death.”27

  At a news conference held a few hours prior to the court appearance, Chief Reid confirmed that the victim had died as a result of repeated blows from an object that Reid could not or would not identify. The department had been under criticism for not making a timely arrest; Reid reminded the media that in New Brunswick, police services require the approval of the Crown before proceeding with charges.28 He also stressed the importance of forensic evidence for the case and its complex nature: “We got a little piece of evidence and that would direct us in an area. We built a case from nothing, essentially.” Reid credited his “members” with doing “a fantastic job.” He added that “for some reason the media was under a time constraint and we weren’t.” The lack of eyewitnesses meant that the case was “process driven on the forensic side.”29 Reid probably had to indulge in some gloating to protect the morale of his officers. But while it is true, as Alan Dershowitz has written, that most people charged with a crime are guilty, the prosecution in the Oland case, as things turned out, had reasons to be less optimistic.

  Oland would spend a total of nine days in custody, most of them at the provincial correctional facility at Black River Road in East Saint John. Remand prisoners are usually placed with the general population but it is rumoured Oland was housed in a safer “trustee” unit. The suspects sent to this facility are generally poorly educated, low-income, mentally ill individuals charged with or guilty of probation violations, assault, drug offences, or impaired driving. Many if not most of the prisoners in the provincial system are awaiting bail, court, and sentencing appearances. Oland’s bail hearing on November 18 was overseen by Justice Hugh McLellan of the Court of Queen’s Bench. Unlike with older court facilities in the province, where prisoners are driven from provincial jails and loaded into back doors in full view of media cameras, the Saint John Law Courts, which had just opened in September, were connected by tunnel to an underground lockup in the adjacent headquarters of the SJPF, which had opened in August. Prisoners on remand, usually brought to court in handcuffs and ankle shackles, are afforded some privacy in transfers.

  The big surprise this day was the appearance, as part of the defence team, of Alan Gold. The presence of one of Canada’s leading defence attorneys at a bail hearing in New Brunswick was a newsworthy event but it also hinted at the resources the Oland family was prepared to marshal in defence of one of their own. In addition to Miller and Gold, Dennis Oland was supported by his family, Teed, and up to fifty friends and acquaintances. The hearing, like all aspects of the Oland matter, was open to the public, but the details, including the reason for Justice McLellan’s decision, were subject to a publication ban. The prisoner was released on $50,000 bail, with the surety provided by his uncle Derek Oland. A number of lawyers felt this was an excessively low amount. Oland was required to surrender his passport, reside at his residence in Rothesay, and report to the police any travel outside the province. Many in the community wondered why a person charged with a vicious murder could be released while those prosecuted for lesser offences (such as First Nations men protesting shale gas exploration in Kent County) were remanded into custody. Part of the answer is that Dennis had no criminal record.30 Although he had been arrested and was now released, Oland, as Miller explained, was not required to enter a plea until he was in front of a jury. And for that to happen, a provincial court judge had to rule that the case would proceed to trial. In the meantime, Dennis Oland was home for Christmas.

  On January 22, 2014, Judge Andrew LeMesurier scheduled the preliminary inquiry in the Oland matter for six weeks starting in May. He advised Miller and John Henheffer to submit a list of witnesses and questions they planned to ask. Henheffer, the lead Crown attorney, who had been admitted to the bar in 1989, was assisted by Patrick Wilbur, admitted in 1992. They would be assisted by a junior counsel, Derek Weaver, who joined the bar in 2009. The preliminary inquiry is like a trial in that evidence is introduced, police, civilian, and expert witnesses examined and cross-examined, and then a judge has to make a decision, guided by legal precedent, on a basic question: has the Crown introduced sufficient evidence to allow a jury of reasonable people to return a verdict of guilty? If the answer is yes, then the case goes to trial.

  Crown attorneys like a preliminary inquiry because often it leads to a plea bargain (a common occurrence in our justice system). There are also a number of reasons why the defence likes the preliminary inquiry. First, as a result of the Supreme Court of Canada’s Stinchcombe ruling (1991), the Crown has to disclose every document, report, transcript, physical exhibit, photograph, video recording, and computer file, and even copies of police officers’ notebooks, to the defence—even material it does not intend to introduce as exhibits. The defence is not obliged to disclose anything in advance. General disclosure as well as the introduction of specific Crown exhibits and witnesses during the actual inquiry stage allows the defence to test the evidence and poke holes in the other side’s case. And both sides can compare witnesses’ preliminary inquiry statements with their statements at trial in order to undermine their credibility.31 The Crown has full discretion as to the number of witnesses it can call; the accused has the option to testify but any of that testimony can be used against them at trial.32

  In May 2014, almost three years after Richard’s death, the R. v. Dennis James Oland preliminary inquiry began. Although an evidence ban was in place, members of the media were present from time to time. The Canadian Press, for example, had a note taker in the courtroom for most of the summer, even though none of the details of the proceedings could be reported in traditional or social media. That did not prevent court watchers from conveying information from court to friends and family by word of mouth. Although a prelimina
ry inquiry is important for the reasons discussed earlier, it does not form the evidentiary base of any subsequent trial. Its details are usually under a publication ban, in order to ensure a fair trial. The Oland trial judge would instruct the jury in 2015: “The fact, purpose and result of the preliminary inquiry is not something you can consider in deciding [if the Crown proves its case beyond a reasonable doubt].”33

  The presiding judge for the preliminary inquiry, which was interspersed with a number of voir dire hearings (pretrial hearings on evidence), was Judge Ronald LeBlanc of Bathurst, a former Crown attorney. The exercise, which began on May 12, 2014, would continue until December 12 and consume almost forty days. The transcript of the proceedings would run to more than five-thousand pages and the judge’s written ruling in December more than fifty pages. The judge’s options, under the Criminal Code, were to discharge the accused or place him on trial if there was sufficient evidence. The key issue is whether a “reasonable” jury “properly instructed” by a trial judge could find the accused guilty. This threshold is much lower than what is needed to secure a conviction. The inquiry is designed to avoid needless or frivolous prosecutions and, as noted earlier, is also a forum where the accused can learn about the Crown’s case. LeBlanc’s job was not to try the case, but to determine if the prosecution’s evidence, if believed, could be used by a jury to infer guilt. The proceedings began with the Crown laying out its case, and then proceeded to testimony from and the cross-examination of police, civilian, and expert witnesses called by the Crown, such as the pathologist, Maureen Adamson, the RCMP tech-crime specialists, and former RCMP DNA expert Joy Kearsey.

  A well-dressed Dennis Oland was present each day. Constance Oland, who had patiently waited for her son at the police station on July 7, 2011, was the most faithful attendee other than Bill Teed, who presumably was being paid to sit with the family each day. Mrs. Oland is a small woman with short hair and glasses and obviously has a strong bond with her only son. The courtrooms in the new Law Courts complex are high-tech, with large video-monitor screens for the spectators and computer screens for the judge and lawyers. All testimony is video recorded and it is possible to project documents onto overhead screens. People in the witness box are able to mark on digital images such as maps and photographs and create new exhibits. Microphones are positioned on the witness stand, the judge’s bench, and at the tables where the lawyers sit. During the Oland hearings, a number of wireless headsets were available to help members of the public better hear the proceedings (these would be in short supply during the trial). Much of the evidence was in digital format, and its smooth flow was provided by Const. Rocca. BlackBerrys and laptops were put to good use by counsel.

  On the second day, as journalist Chris Morris reported, when disturbing photographs of the crime scene were displayed on monitors in the courtroom, some of the family walked out and Dennis lowered his head.34 But as the weeks proceeded, the atmosphere became fairly relaxed and the Olands and their supporters often socialized in the corridor during breaks, with coffee and treats brought in through the security checkpoint. One day, Pat Darrah, who had delivered the victim’s eulogy, came to court and embraced Dennis in a show of support. This was highly symbolic of much of the Saint John business and political elite’s response to the unfolding case. At times, family and friends made small talk and even cracked jokes, which may have struck some observers as a bit odd given the circumstances. Lisa, the defendant’s wife, was often present and photographed by reporters outside the Law Courts. A petite woman with blonde hair, she sometimes held hands with Dennis as they walked to and from the building. Aside from taking pictures, the media was quite respectful of the family both within the courtroom and on the street outside, an approach it would continue during the trial.

  For court watchers who were not legally trained, the evidence presented by the Crown, although circumstantial, initially appeared strong. Given problems of scheduling, the flow of the proceedings was somewhat choppy. And the defence subjected many of the witnesses to vigorous cross-examination, to the point where many observers felt that the Crown would have an uphill battle. At times, Miller or Gold became a bit intense but lead Crown Henheffer maintained a low-key, matter-of-fact tone. Given that there was no jury in the room, the sometimes flamboyant tactics of the defence were a bit puzzling. The defence strategy appeared to be putting the SJPF on trial by raising doubts about its professionalism and technical capabilities. Gold certainly displayed his mastery of cross-examining on forensic/scientific testimony. There was an inordinate amount of questioning about how the body of the victim was removed from the crime scene, which appeared to suggest that Gold and Miller, if the matter did proceed to trial, would possibly suggest that too many people came into contact with Oland’s blood/DNA. The defence also honed in on the mystery of the building’s back door and even introduced a video that it had produced to suggest an alternate escape route for the “real killer.”35

  On November 25, 2014, Henheffer used one hour to make his closing arguments, discussing motive, opportunity, and means. In his written decision (discussed below), Judge LeBlanc summed up the Crown’s case as follows: (1) Dennis had opportunity to kill his father; (2) the manner of death and state of the crime scene indicated a crime of passion; (3) the DNA evidence on the jacket was incriminating and the reasonable inference was that it was derived from the victim’s blood; (4) the accused had lied to the police about the jacket; (5) the taking of the jacket for dry cleaning ten hours after the completion of Oland’s interrogation was potentially incriminating; (6) all text, cellphone, telephone and computer activity by the victim terminated after the arrival of his son at 52 Canterbury Street.36

  According to journalist Julia Wright, once the preliminary inquiry had ended, Dennis supposedly celebrated with friends at a November 26 concert at Harbour Station by American rocker Bob Seger: “While Bob and the Silver Bullet Band revisited classics like Against the Wind, [Dennis] and his buds conspicuously rocked out—to some eyes, an odd way to cap off 37 days of court proceedings determining he’d be tried for murder. As Dennis and friends stood up in their seats, working on their night moves, saucy fellow Seger fans surreptitiously snapped pics of the local celebrity in their midst, stealth-texting photos with captions like ‘OMG look who it is!’” In hindsight, Wright wrote of the special irony of Oland enjoying himself at Saint John’s biggest hockey arena and concert venue given its later connection to the case.37

  On December 12, LeBlanc made his ruling. He began by reviewing the arguments of the two sides. His summary of the arguments of the defence was: (1) the crime-of-passion theory did not limit potential attackers to the accused; (2) there was no evidence of a financial motive or of planning on behalf of Dennis; (3) Anthony Shaw and John Ainsworth had not heard any quarrelling or shouting; (4) the Crown had failed to prove ill will between Dennis and Richard, and the two appeared to be getting along well on July 6, 2011; (5) the prosecution had failed to establish the type of weapon used in the crime or whether the accused possessed such as weapon or weapons; (6) Dennis’s behaviour after leaving the Far End Corporation was at odds with the conduct of a person who had just committed a brutal crime; (7) a guilty person would not keep the jacket after being told that the police would be obtaining search warrants and would not tell police about his visit to Renforth Wharf if that is where he had ditched the cellphone or murder weapon; (8) the forensic evidence was weak: there was no DNA of Dennis at the crime scene or on the victim’s body and no transfer evidence on Dennis’s shoes, shirt, pants, cellphone, car, or the red grocery bag; (9) there was no theory to explain why the accused would take the victim’s iPhone; (10) when the cell provider pinged the phone three times on July 11, 2011, it registered as functioning but as outside the country (this is debatable, as explained elsewhere); (11) the timing of the noises heard by Shaw and Ainsworth did not match the time of Dennis’s visits to his father’s office.38

  Significantly, LeBlanc wrote that the Cro
wn had failed “to establish a reason for Dennis Oland to kill his father.” The prosecution’s theory that father and son had a confrontation that ended with an attack was not supported by any evidence. Indeed, this “speculative” theory of the Crown was undermined by positive evidence that the two men were enjoying a friendly conversation when last seen together. He also questioned if the pinging of the cell off the Rothesay cell tower was actual proof of the iPhone being in the area at 6:44 P.M. on July 6, 2011. He also pointed to questions raised by the evidence on “roaming error,” suggesting that a jury could conclude that the victim’s missing phone was not in Canada on July 9, 2011, when Dennis was. (As will be discussed later in this book, this was a possible misreading by the judge of a technical term in evidence.) 39