Truth and Honour

by Greg Marquis

  In early February, the two sides met in court for motions day, where they discussed with the judge scheduling and logistical issues such as the date when the transcripts of the preliminary inquiry would be completed as well as motions to be argued about evidence in advance of the trial. The size of the jury pool was also discussed, with Walsh speculating that at least fifteen hundred would have to be summoned.4 He later consulted with Sheriff George Oram who advised an additional five hundred to a thousand. To date, the biggest jury call in the province had been two thousand (the Grand Manan Five case of 2006). The judge speculated that jury selection could be slowed down by “challenges for cause” by the two sides in the case. Walsh asked counsel for advice on the vetting questions to be put to potential jurors. One issue that was not settled on March 30 was where Oland would sit in court. Miller requested that he be permitted to sit at the rear table for the defence, with one of his lawyers.5 In the end, Oland sat at his own table next to the prisoner’s box, close to the defence tables.

  The pretrial hearings, the topics and contents of which could not be reported in the media, began in May and would extend over the summer. Oland was present each day. The discussion was highly technical, with both sides producing briefs and making oral arguments. The defence made many negative comments about the SJPF, accusing it of conducting an investigation based on tunnel vision, drafting erroneous and misleading ITOs, and failing to legally execute search warrants. It was also quite disdainful of the Crown’s arguments. Much was riding on these hearings, as they would determine exactly what evidence a jury would see. Judges at this level are always conscious of the chance of appeals down the road. Each major issue was addressed by Justice Walsh in a written decision that cited case law.

  Between late March and early September, Walsh made several rulings on the admissibility of evidence, the details of which were made public after the trial. At a March 30, 2015, voir dire, the Crown requested the release of two items entered as exhibits at the preliminary inquiry: forensic DNA extracts from the jacket, for retesting by a more powerful typing method. The Crown also announced that it wanted the RCMP to test two other extracts from the jacket and a blood sample from the victim and a buccal (cheek) swab from the accused (the latter had been acquired via DNA warrant and had not been entered at the preliminary inquiry). The reason was that the RCMP in August 2014 began to employ Identifier Plus, a more exact and powerful DNA amplification kit. The defence argued that Section 605 of the Criminal Code required the prosecution to have a court authorize the testing of all six items.6

  The defence insisted that the post-seizure testing of the jacket violated the defendant’s Charter rights as an unreasonable search and seizure. It had been seized under the warrant issued by Judge William McCarroll on July 13, 2011, which expired on November 2, 2011. The defence argued that, given that Justice Walsh would be ruling on a Charter challenge on the testing of the jacket, it was best to wait until that bigger issue was decided. Rather than delay proceedings, and recognizing the upcoming Charter challenge as well as another complex voir dire, Walsh decided to grant the Crown its request. The tests, he wrote, had the potential of “contributing reliably probative evidence bearing on a critical issue in the case, namely identity.”7

  In June, there were two important rulings: one that favoured the Crown and another that favoured the defence. The defence claimed that the ITO drafted to obtain judicial authorization to search Oland’s residence, and search specifically for a brown jacket, had been flawed. Secondly, it repeated the argument that no warrant authorized sending the jacket outside of Saint John for forensic testing. Walsh agreed that sections of the ITO had been misleading and poorly worded, but defended the legal acumen of his provincial court colleague who had issued the warrant. In response to Gold’s assertion that the Charter rights of the accused had been violated with the testing of the jacket, Walsh cited common law practice. He concluded that the “house warrant” was sufficient authority for allowing the testing of the jacket, despite the lapse of a “general warrant,” and that Section 8 of the Charter had not been violated.8 The second ruling was detrimental to the Crown and especially the SJPF. Under the cover of a warrant, the police had approached CIBC Wood Gundy for access to Oland’s workplace computer files. At the time, investigators had not known that there were personal files on the business’s “H” or public drive, which were forwarded to the SJPF in the fall of 2011. The Crown now wanted to enter new evidence: pay stubs and two letters from Dennis to his father in 2003. Walsh, pointing out that the material had been seized after the expiration of the warrant and violated the search and seizure provisions of the Charter of Rights, refused.9

  On July 29, 2015, Walsh decided on another important question of evidence admissibility. In order to establish that both the victim’s iPhone and the accused’s BlackBerry were in Rothesay after 6:30 P.M. on July 6, the Crown sought to have call-detail records (CDRs) entered into evidence at trial. CDRs include the first and last cell towers with which a cellphone connects “for each outgoing or incoming call/text message.” The coverage areas for the two devices were determined by “propagation maps” of area cell towers, to be explained by radio-frequency engineers. This is a relatively new area of law; as Walsh noted in his decision, the provincial Court of Appeal had yet to rule on any cases relating to cellphone location. Following cross-examination of the deponents of supporting affidavits, the Crown withdrew its application in reference to the CDRs and the two sides proceeded with argument on the admissibility of the evidence of the engineers. The key issue was the significance of the 6:44 P.M. text from Diana Sedlacek to the victim’s phone. The defence objected to the accuracy of the propagation maps and radio-frequency engineer Joseph Sadoun’s ability to advise the court on the location of the iPhone based on a lone text message. It also argued that the location of the missing phone was not important, given that there was no evidence that Richard Oland did not leave his office at some point before his death. The Crown’s evidence, if admitted, could convince a jury either that the victim had been in the range of the Fairvale tower in Rothesay (which was eleven kilometres from Oland’s office) and had not responded to Sedlacek’s text, or that he was not in Rothesay at 6:44 P.M. but his phone was. The propagation maps depicted not exact coverage but a “predicted region” where each site would “offer the best service” according to Sadoun and were prepared by the use of software. The judge also had to rule on the admissibility of the cellphone field tests made by the SJPF in Rothesay and Saint John in 2012. In the end, he agreed to accept Sadoun as an expert witness, but limited what could be asked of him by the Crown. The cellphone field tests were also admitted.10

  The fourth voir dire on evidence was held in August with a ruling of September 2, 2015. The issue was the admissibility of cellphone evidence, in particular cell-tower information, for the phones of Richard and Dennis Oland. The defence consented to the records of Diana Sedlacek but opposed admission of the other CDRs. In the wake of the third ruling, the defence was now opposing admission of its client’s Telus records on the basis of the court’s refusal to allow radio-frequency engineering reports on the locations of Dennis Oland’s cellphone. For the judge the big issue was the admissibility of cell-tower information on the victim’s phone as contained in the Rogers CDRs. During the preliminary inquiry, Rogers Communications investigator Sylvie Gill had explained that cell-tower information was collected for the purposes of billing and resolving customer complaints. The defence opposed the admission of cellphone-related evidence in electronic format, but Walsh ruled that they were business records recognized in law. The judge admitted the Rogers CDRs for the victim’s phone but awaited further submissions on the Telus CDRs for the accused.11

  The Crown obviously wanted a jury to see the Telus CDRs and propagation map for Dennis Oland’s BlackBerry relative to his movements after he left uptown on July 6, 2011. Given that Oland’s statement to the police as to his whereabouts would be admitted by consent,
and there was evidence of his 6:12 P.M. text to his sister and the 6:36 P.M. call from his wife, the judge on September 10 ruled that the CDR records would be admitted minus the cell-tower information.12 On the same day, he ruled on a defence bid to exclude a May 31, 2011, text message and two June 1, 2011, email exchanges between Dennis and Lisa, on the grounds of spousal privilege. This is the old common-law rule (no longer observed in England) that a person cannot be compelled to testify against a spouse. This information, seized from the defendant’s cellphone and work computer, was useful for the Crown’s theory of financial difficulty. Walsh noted that the Criminal Code protected direct evidence and wiretap intercepts, but that the trend was away from spousal privilege. This evidence was admitted.13

  Based on pretrial discussions with counsel, it was eventually decided to issue a call for five-thousand jurors, the largest in Canadian history to that date. Despite this, the judge later expressed the fear that sheriff deputies might have to hit the streets and conscript prospective jurors on the spot. He saw the main challenges of finding a jury to be the expected length of the trial and the extensive pretrial media exposure. Prospective jurors are chosen at random from the provincial voters’ list. In New Brunswick, they have to be at least nineteen years of age and under seventy. Lawyers and police officers and their spouses, clergy, veterinarians, doctors, dentists, firefighters, and those convicted of criminal offences are automatically excluded. Prospective jurors are mailed a summons from the sheriff and have only a few days to mail or deliver it back. Refusal to show up for jury selection is a serious offence and can result in a fine of up to $1,000. Jurors are paid $20 for a half day and double that for a full day for the first nine days. After that, the fee is doubled.

  Over the years, Saint John’s Harbour Station has hosted the Saint John Flames (a National Hockey League farm team) and performers such as Bob Dylan, Drake, David Copperfield, and Taylor Swift. On September 8, 2015, it served as a giant courtroom where Dennis Oland entered a plea and the jury-selection process began. Although nearly four-thousand people were granted exemptions by the sheriff, more than one thousand, some of them in wheelchairs, were present. They were drawn from Saint John and King’s Counties, which combined contain only one-hundred-and-forty-thousand people of all ages. The defendant, standing on the floor of the arena, was formally arraigned in front of the large crowd. Using a microphone and speaking in court for the first time, Oland entered his plea: “Not guilty.” Less than a year ago, he and his friends had enjoyed themselves at a rock concert in this very complex.

  The prospective jurors were organized into eight groups, each assigned a time for showing up at the Saint John Law Courts. Before this, Justice Walsh explained the reasons why certain people may not be able to serve, such as knowing a party to the case. He asked people to be patient and explained that the jury was the cornerstone of democracy. On the following day, one-hundred-and-thirty prospective jurors were rejected by the judge, counsel, or two triers (members of the jury pool who assist with the vetting process). The reasons for the objections could not be revealed by the media. In the case of second-degree murder, each side has a number of peremptory challenges (where a juror can be rejected without a specific reason being stated). One veteran defence lawyer describes jury selection in Canada as more of an art than a science. In recent decades, the only information lawyers receive on the jury pool are names, addresses, and occupations. There is not much talking during this process, and a lawyer usually has a minute or less to challenge a prospective juror. There is a provision to “challenge for cause” (when one of the two sides formally asks a judge to exclude a prospective juror based on a demonstrated lack of impartiality) but the incidence of this is extremely rare. Once a juror is accepted, they are sworn in.14

  The jury was in place by September 10, 2015, a few days ahead of schedule. Twelve people were chosen and sworn in on the ninth and four more on the tenth. In the end, the jury consisted of nine men and seven women. Two were selected as spares given the length of the trial, the possibility of sickness, and other matters that might arise. Justice Walsh thanked everyone for their patience and especially Sheriff Oram and the court staff for running so smooth an operation. The people selected for this crucial civic duty faced not only a lengthy period away from their jobs, but also legal penalties if they deviated from the rules. They were compelled not to discuss the case, their deliberations, or the reasons behind their verdict. The penalty for divulging information is up to six months in jail and a fine of up to $5,000.15 On top of this, as they may have sensed at the time, they were members of what would be the most scrutinized jury in New Brunswick history and would be exposed to graphic evidence that could induce psychological harm.16

  On September 16, 2015, four years, two months, and two weeks after the murder of Richard Oland, the trial of Dennis Oland began. Despite the introduction of technology such as computers, interactive software, and wireless headphones for jurors and spectators, the modern courtroom retains many of the anachronisms of Canada’s British legal system. Judges in provincial court wear robes and are addressed as “Your Honour.” Walsh, as a judge of the Queen’s Bench, was addressed as “My Lord.” When a judge enters or leaves the room, counsel, witnesses, and spectators stand, and some even bow their heads. The jury is accorded the same respect. New Brunswick courts are traditional in another manner: photo and television cameras are banned.

  Justice Walsh began by explaining to the jury its role and the rules of the court. Aside from reporters, family members and friends, and court watchers, there were few members of the public in attendance. One irritating logistical issue was the constant lack of wireless headphones that allow listeners (including jurors) to hear what is spoken by the judge, the lawyers, and witnesses. Walsh told the jury members that they would be the triers of fact and should avoid media coverage and third-party opinions, and maintain an open mind through the proceedings. “Crown counsel has the job of proving the charge,” he explained, and defence does not have to prove anything. The key question in this case was: did Dennis cause Richard’s death? He advised the jury that if, after hearing all the evidence, they did not believe the defendant was guilty beyond a reasonable doubt, he must be found not guilty. Even if they felt that Oland was “likely guilty,” they would have to acquit the defendant.

  The judge warned members of the jury not to talk about the trial, evidence, or witnesses with anyone other than fellow jury members when deliberating and to avoid all radio, television, newspaper, and magazine reports of the case, and all social media messages and reports. This is a standard warning in jury trials, but in this case, with its heavy media coverage, the message was even more important. They also were not to speak about the trial to their families, neighbours, and friends. In an increasingly networked society, where even preschoolers have iPads, following these instructions would be a major test of willpower and judgment. Walsh also explained to the jury that nothing a lawyer says in court can be considered evidence.

  There was no publication ban for the most part on evidence entered at trial, but the ban remained on the preliminary inquiry, Judge LeBlanc’s written decision to send the matter to trial, and pretrial rulings on evidence by Justice Walsh. In addition, when legal points were raised by any of the lawyers during the trial, the jury would be excluded and any discussion among the lawyers and judge of these points was under the ban. The much-anticipated trial began with intensive media coverage both inside and outside the courtroom, with six cameras set up near the steps of the justice complex. Reporters from the CBC, the Canadian Press, Global, CTV, and the Telegraph-Journal were usually in attendance. From time to time the National Post, the Globe and Mail, and Maclean’s also had journalists present. The outside media tried to interpret the trial—and Saint John—for a national audience, suggesting for example that the Oland family was “resented for its wealth” and that “virtually everyone in Saint John has an Oland connection.”17 Christie Blatchford of the National Post wrote th
at the case “will be rich with scandalous detail about the rip-roaring dysfunction within one of this province’s most famous families.”18 The CBC usually had two reporters in the courtroom, both posting tweets and other updates, plus a cameraperson outside (no photography or video recording is allowed within the court building). The print media, CTV, and Global reporters, and Laura Lyall, a reporter for local radio station CHSJ, had to do double duty, taking notes, posting online, and taking video and still photography as lawyers, witnesses, and Oland family members exited and entered the building, plus filing stories. The media was under the gun to file interesting and dramatic content, and the Oland matter, partly because of the prominence of the parties involved, the many unknowns, and the revelations of infidelity, did not disappoint. On the other hand, much of even a high-profile criminal trial is routine.19

  Dennis Oland walked in and out of court a free man, always smartly dressed in a suit or jacket and tie. Small of stature and with boyish looks despite being in his forties, he continued the pattern of socializing and drinking coffee during breaks with the family members and friends who often formed the bulk of the spectators. And in bad weather, Oland, who would describe his sartorial tastes as old-fashioned, sometimes resembled a much older man, with a topcoat, cloth cap, and full-sized umbrella.

  In early August, the media learned that Henheffer, for health reasons, had stepped down as lead prosecutor. He was replaced by Paul (P. J.) Veniot, formerly the senior Crown prosecutor for northern New Brunswick, who was brought back from retirement to head up the team. Admitted to the bar in 1981, he had been made a Queen’s Counsel in 2006. In 2014, Veniot had been one of the prosecutors of Justin Bourque, accused of murdering three RCMP officers and wounding two others in Moncton. Bourque pleaded guilty, and in 2015 made Canadian legal history by being sentenced to three consecutive life sentences (seventy-five years) before being eligible for parole. The official theory of the role of the Crown prosecutor, according to court decisions and the Canadian Bar Association, is not to secure a conviction, but to fairly place before the court (either jury or judge) all relevant evidence connected to an alleged crime. Crown prosecutors are expected to be restrained, dignified, and moderate, and during the Oland trial, Veniot was almost a textbook example of this approach.20