by Greg Marquis
On September 25, the sixth day of the trial, Constable Michael Horgan of the canine unit testified about searching the back alley and other areas on July 7 with his dog, Leo. He told the court that “no evidence was found as a result of the search.” Horgan’s appearance was used by the defence to promote its theory that the unexamined back door, and the alley way, was most likely the route of the real killer. The officer was shown photographs of the rear area taken by the defence in June 2014, nearly three years after the crime, and was unable to recall many details about the area other than the door itself. Gold stated (again, this by itself could not be considered evidence) that the exact exit route of the killer was not known. Const. MacLeod, who had testified that his task on July 7 was to watch over the crime scene, came on duty in the early evening and stayed in the foyer area until after 6:00 A.M. on July 8. In his memory, the back door was open during his entire shift. When prodded by Gold, he admitted: “it dawned on me that the killer could have left through that door and any other door in the building” but reminded the court that he was not an investigator but was only there to guard the scene.33
The Crown’s first expert witness, Payman Hakimian of the RCMP Technological Crimes Unit (J Division, Fredericton), appeared on September 28. A tech-crimes analyst, he investigated computer crimes such as hacking and assisted other units with recovering and forensically examining digital evidence from computers, tablets, cellphones, recorders, and cameras. Hakimian explained that activity on computers was like “footprints left behind” for forensic investigators. The first step is creating a “forensic duplicate” of a seized device’s information that will allow investigators to restore deleted email messages and texts, analyse user patterns, and determine the time of “last use.” The original digital data remains untouched. On the basis of his experience and training, he was accepted by the court as an expert witness, having served in this capacity a number of times since 2008. Hakimian testified that together with Sergeant Pierre Bourguignon he responded to a request of the SJPF on July 7, 2011, arriving at 52 Canterbury Street at 6:55 P.M. (when Dennis Oland was being interviewed at police headquarters). The RCMP investigators met Sgt. Smith who advised them that he was still processing the crime.34
After checking on their legal authority to search and seize electronic devices, the tech specialists began their work at 9:00 P.M. At the request of Smith, they wore gloves and booties. Every computer in the office was still turned on, just as police had found them several hours earlier. Oland had a Dell computer and monitor on his desk and immediately to the left was a table with six additional computer screens, presumably to monitor financial information. In total, a dozen devices were seized for transport back to the RCMP tech lab in Fredericton. They included an iPad, cameras, a number of computer CPUs, and an external hard drive. Once at the lab, each device was analysed using software such as Write Blocker and Forensic Tool Kit. One item seized near the victim’s desk-computer keyboard was a USB cord for an Apple product, presumably for the missing iPhone 4. The phone had been backed up on the main computer at 4:44 P.M. This established a key fact: the iPhone was in the Far End Corporation office late on the afternoon of July 6, 2011. Given that Oland did not appear to have left the office that day, this was highly significant. Apparent human activity on most of the office computers, according to Hakimian, stopped at 5:30 P.M. just before Dennis arrived to speak to his father about genealogy. Oland’s main computer, according to his examination, logged no new activities past 5:39 P.M. The last apparent activity of the victim was looking at sites dealing with yacht racing.35
Cross-examination by Gold raised the issue that some user-generated activities on computers, such as closing a browser or reading certain files, do not necessarily leave a trace. He also questioned whether the RCMP had analysed the victim’s computer-use patterns for other dates, suggesting that Hakimian’s evidence did not prove that July 6, 2011, was not a typical day in the Far End Corporation office. The exchange between the two men on the first day was often testy. Hakimian refused to comment on how his report differed from that of his colleague Sgt. Bourguignon. Gold also used this witness as an opportunity to suggest that the detailed examination of Oland’s computers had failed to reveal any concerns about his son’s financial status. Hakimian explained that the contents of files and email messages was outside of his purview. In November 2012, he conducted forensic testing of the three computers seized from the home of Dennis Oland. The SJPF had asked him to check for internet searches, email activity, and file and digital image content. The testing revealed that other members of the household also used the computers. The expert did not analyse the data but turned it over to the Saint John investigators.36
The Crown’s second expert witness, Neil Walker, a technological-crime expert with the RCMP in Halifax, presented evidence on the victim’s text messaging prior to the murder. He told the jury how he had assisted the SJPF in 2012 with two questions: when was the iPhone last disconnected from Oland’s computer, and when did his email program time out? He reported that Adobe Acrobat had been opened at 5:28 P.M. (for viewing PDFs) and the browser Firefox at 5:38 P.M. Although the iPhone disappeared, most likely taken by the killer or killers, Walker was able to access a backup program on the desktop computer: the phone had been disconnected at 4:44 P.M. What was entered into evidence was a series of texts between Richard and Sedlacek. Although the often-embarrassing messages were further proof of infidelity, the reason they were entered as a Crown exhibit was their potential in reinforcing the prosecution’s theory of timeline. In cross-examination, Gold attempted to establish that Oland did not always respond promptly to text messages from his mistress (to explain his lack of response to her on the evening of the murder). The defence, arguing that Oland had attempted to keep the affair secret, entered as an exhibit the contact image linked to Sedlacek’s incoming calls. Rather than Diana, it displayed a picture of male friends. Gold’s cross compelled both experts to admit that not all human interaction with computers could be tracked.37
According to Professor Nicole O’Byrne, the Oland case turned on one material issue: did the accused commit the crime?38 By the time September ended, the Crown had introduced important elements of its case, but there were two months and many witnesses to go. The “dream team” had one goal: subject witnesses, especially police and expert witnesses, to vigorous cross-examination in order to raise doubt in the minds of the jury about the professionalism of the SJPF and the overall strength of the Crown’s case. During the preliminary inquiry, Miller had described the case as a “defence counsel’s dream.” And by October, in the view of many observers, the ground was shifting in its favour.
* * *
1Rick MacLean, André Veniot, and Shaun Waters, Terror’s End: Alan Legere on Trial (Toronto: McClelland & Stewart, 1992), 298.
2CBC, “Bill Reid is ‘comfortable’ with Oland murder investigation,” CBC New Brunswick News, April 22, 2015.
3R. v. Dennis James Oland, 2015-11-24, Laboratory Testing Results.
4R. v. Dennis James Oland, motions meeting, Feb. 2, 2015.
5Mike Landry, “2,500 people could be summoned for Dennis Oland trial jury panel,” Telegraph-Journal, March 31, 2015, B1.
6R. v. Dennis James Oland, Voir dire, April 5, 2015.
7Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis James Oland (Hon. Mr. John J. Walsh), April 7, 2015, paragraph 35.
8Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis James Oland, Ruling #2, (Hon. Mr. John J. Walsh), June 10, 2015, paragraphs 94-95, 156, 206.
9Ibid., paragraphs 209-10, 227-30, 243-70.
10Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis J
ames Oland, Ruling #3 (Hon. Mr. John J. Walsh), July 29, 2015.
11Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis James Oland, Ruling #4, (Hon. Mr. John J. Walsh), Sept. 2, 2015.
12Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis James Oland, Ruling #5, (Hon. Mr. John J. Walsh), Sept. 10, 2015.
13Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Between Her Majesty the Queen and Dennis James Oland, Ruling #6, (Hon. Mr. John J. Walsh), Sept. 10, 2015.
14Interview with David Lutz, March 8, 2016.
15Regina Schuller and Neil Vidmar, “The Canadian Trial Jury,” Chicago-Kent Law Review, Vol. 82 (2) (2011): 497–535.
16Bobbi-Jean MacKinnon, “Jurors in Dennis Oland murder trial at risk for PTSD,” CBC News New Brunswick, Sept. 26, 2015.
17Eric Andrew-Gee, “Sex, class, family discord fuel Saint John’s fascination with Oland trial,” Globe and Mail, Dec. 13, 2015.
18Christie Blatchford, “Trial of Dennis Oland, accused of murdering millionaire father, reveals dysfunctional family,” National Post, Sept. 16, 2015.
19Canadian Resource Centre for Victims of Crime, If the Media Calls: A Guide for Crime Victims and Survivors, 2015; Andrew-Gee, “Sex, class, family discord.”
20Boucher v. The Queen [1955] S.C.R. 16.
21R. v. Dennis James Oland, Opening Statement, Sept. 16, 2015
22Ibid.
23Chris Morris, “Oland trial into 10th week,” Telegraph-Journal, Nov. 16, 2015, A1, A2.
24Adam Huras, “City man part of Oland’s legal ‘dream team’,” Fredericton Daily Gleaner, June 2, 2014, A1.
25Ray Moses, “Direct Examination—Building a Dramatic Story,” Direct Examination in Criminal Cases, http://crominaldefence.homestead.com/direct.html.
26Chris Morris, “Oland suffered no less than 40 blows, murder trial hears” Telegraph-Journal, Sept. 17, 2015, A1–2.
27Testimony, Sept. 16-18, 2015.
28Testimony, Sept. 16–18, 2015; Christie Blatchford, “Could Dennis Oland have gone from killer to happy shopper in 68 minutes?” National Post, Sept. 17, 2015.
29Testimony, Sept. 16–18, 2015.
30Testimony, Sept. 18, 2015.
31Testimony, Sept. 21, 2015.
32Testimony, Sept. 24, 2015.
33Testimony, Sept. 25, 2015; Chris Morris, “Officer says no evidence found of killer’s route from Oland murder,” Telegraph-Journal, Sept. 26, 2015, B1– 2.
34Testimony, Sept. 28–29, 2015.
35Ibid.
36Ibid.; Chris Morris, “Prosecution at Oland murder trial brings in computer expert,” Telegraph-Journal, Sept. 29, 2015.
37Testimony, Sept. 29, 2015, A1.
38Interview with Nicole O’Byrne, March 9, 2016.
Chapter 7
Did You Kill Your Father?
October 1–December 2, 2015
The first witness for October was Const. Davidson, who had been named lead investigator in the fall of 2011. He recalled attending the scene and conducting initial interviews. He could not remember which day he exited through the rear door but was adamant that it had been locked when he first encountered it on July 7. He testified that he unlocked then locked the deadbolt mechanism and, like a surprising number of officers, probably did not wear gloves. The rest of his testimony dealt with attending at the victim’s residence to notify his family and interviewing Jacqueline (Oland) Walsh between 3:47 and 5:07 P.M.
That afternoon, Sergeant Mark Smith of the Forensic Identification section was in the witness box. Wearing his dress uniform, he came across as professional, confident, and fair minded. Given his importance in examining the crime scene and testing various exhibits, Smith would be examined and cross-examined for several days. His testimony was also used by the Crown for entering more exhibits into evidence. Although he had noted the rear exit, by the time he returned from escorting the body to the hospital, the door had been opened and contaminated. Smith explained how he had examined and photographed the scene. The jury saw a large blood pool near the victim’s head and “hundreds of spatter stains.” Smith took measurements, sketched a floor plan, and collected blood swabs for DNA typing. He and Const. MacDonald also forensically examined the victim’s clothing and body prior to the autopsy on July 8, 2011. For the first time, the jury was exposed to the severity of Richard Oland’s injuries, which were displayed on large screens. Walsh warned that the images were graphic. According to journalist Chris Morris, Dennis did not look at the disturbing photos, and family members averted their gazes or left the room.1 Smith testified about examining the Camp logbook for blood, examining the victim’s BMW, and taking part in another search of the office on July 9.2
When court resumed on October 5, there was an issue with a juror. On the first day of the trial, it had been determined that one juror had an unreported relationship with Cox and Palmer, the law firm involved with the defence. That juror had been dismissed and one of the alternates took his place on the jury. Now, the defence informed Walsh that another juror had contacted another person associated with the firm. Walsh erred on the side of caution and in an understanding manner, dismissed the fourteenth juror. Smith’s testimony continued with an explanation of how exhibits such as frozen DNA extracts were handled and stored in police custody.3
Cross-examined by Miller on the sixth, Smith explained that by the time he processed the second-floor washroom on July 9, 2011, it had been used by police officers. Traces of blood in the sink matched the DNA profile of Galen McFadden (who had provided a voluntary sample). The failure to secure the bathroom was a breach of basic crime-scene protocol.4 Given the modern emphasis on forensics and the chain of custody of evidence, the actions of the SJPF damaged the reputation of the entire department but also possibly compromised the prosecution’s case.5 Miller questioned Smith on his meticulous search of the VW Golf and its contents, including the red bag. Various chemical tests had been conducted for the possible presence of blood. As the jury would hear more than once, there was no trace evidence in the car or in or on the bag.6
Further cross-examination focused on the bloodiness of the scene and Smith’s examination of the camp logbook.7 Smith was shown the video clip of Dennis walking outside Thandi’s on July 6 at 6:12 P.M. As with other police witnesses, he refused to positively identify the person in the images as the defendant. Questioned about the rear exit, he testified that he had been asked by the Crown to photograph the door in July 2015. This led to a related issue the defence used in an attempt to discredit the investigation: the height and width of the back stairs. Miller asked whether a person who had bludgeoned someone to death would have visible trace evidence of blood on their person. Smith agreed but qualified this and many of his answers. The cross-examination concluded on October 8, with Miller raising the issue of Davidson’s appointment, despite his relative inexperience, to lead investigator. Miller ended by complimenting the officer on his thoroughness, with the exception of his neglect of the rear exit.8
Smith was followed by Dr. Ather Naseemuddin, the pathologist who performed the autopsy. Much of the evidence was graphic in nature and members of the jury were disturbed by autopsy photographs. In addition to photographs, the doctor relied on his autopsy report, a sketch, and his notes. Matching other testimony, he reported that the autopsy revealed thirty-five sharp-force or “chop-like” wounds on the head, six blunt-force injuries, and fourteen skull fractures. In a Fredericton newspaper, journalist Chris Morris noted that the defendant “routinely looks away when photos of Oland’s body are shown in the court room.”9 Th
e pathologist explained that the impact of such wounds would have been “rapidly fatal,” with the victim succumbing within five to ten minutes. He could not estimate the time of death. The six wounds on Oland’s hands seemed to be defensive in nature. Oland was probably struck many times as he was unconscious on the floor: “There are so many injuries…which are terribly incapacitating, I would think those would have come after the victim was able to make any defensive motion.”10 The Crown, remembering earlier defence questions, asked if the pathologist had noticed any skin condition on the scalp. Naseemuddin replied in the negative, although how anyone could have detected evidence of pre-attack blood traces on the head of such a traumatized victim was not explained.11
Under cross-examination, the doctor agreed with Gold that the victim, “a healthy, robust man,” had been “physically quite capable of defending himself.” Asked about a possible weapon, all Naseemuddin could offer was that the injuries had been caused by two surfaces, one that was roundish, three centimetres wide with a cross-hatching pattern, and a second with an edge sufficiently sharp to penetrate bone. There was more trauma on the left side of the victim’s head, with a series of blows creating an indented area up to two centimetres in depth. Gold asked the witness if the attacker would have been covered in blood. Naseemuddin stated that the weapon would have been covered, but he could not give an opinion about the assailant’s clothing. When Gold brought up contradictory testimony from the preliminary inquiry, the doctor agreed that substantial blood would have been present. The lawyer also asked about the level of alcohol in the victim’s urine, blood, and vitreous fluid. Justice Walsh gave the jury some rare weekend homework, asking them to read the autopsy report.12
