Truth and Honour

by Greg Marquis

  The next witnesses were Constable Tony Gilbert, retired Staff Sergeant Mike King, and Deputy Chief Glen McCloskey. Gilbert, Davidson’s partner in 2011, was asked about his role in the early investigation, which included monitoring the interviews of Dennis and Lisa Oland and Lisa (Oland) Bustin and tracking down security-camera footage.13 Things took an unexpected turn with the testimony of King, who had retired in April 2015. His evidence generated headlines and intense discussion in the community and the promise of a departmental investigation. Examined by Patrick Wilbur, King alleged that McCloskey in 2014 had asked him not to tell anyone that he had entered the inner office to view the victim’s body. King claimed: “I said I never lied on the stand in thirty-two years and I wasn’t about to start. I don’t care if it was a murder or a traffic ticket, I was telling the truth.” The tale became even stranger when King recalled being sent by McCloskey to a midnight rendezvous in an East Saint John parking lot. He met an individual he assumed was a Mountie and then travelled to the RKYC in Millidgeville. He testified that if he received a call from dispatch, he was to ignore it. As Gold suspected, the point of this instruction was to avoid detection at the yacht club. This turned out to be an RCMP operation unrelated to the Oland matter. King claimed that he had spoken to Davidson, whom he considered to be a friend, prior to the trial and that the younger officer felt that he was “being made to look bad,” presumably by the Oland defence team, and was actually contemplating quitting the MCU because of the stress. The retired officer also stated that he had spoken with Davidson about the alleged conversation with McCloskey and that Davidson had stated that the matter was potentially serious.14

  On October 14, both King and McCloskey, who had been friends and who had served in Moncton in 2014 during the Justin Bourque shootings, were in the witness box. (They had been part of a fifteen-person Emergency Tactical Services unit, which along with four other officers and two civilian specialists, had been deployed during the crisis and which in 2014 had been recognized by the RCMP for their contribution in containing the shooter.) King told Gold that he had retired because of health issues. Following this testimony, McCloskey told the court that he had never requested King to lie under oath. He explained that King, before he retired, had been upset about SJPF staffing policies. McCloskey admitted that on July 7, 2011, he had ventured into the inner office twice, the first time to view the body and the second time because he was curious. Prompted by Gold, he explained that he had called Constable Greg Oram “an idiot” because he had told other officers about the second visit. Gold pressed McCloskey on the issue of the rear exit. There was mention of a steel gate or fence that had blocked off part of the alley in 2011, but no picture of this barrier was ever entered into evidence. The deputy chief admitted that he may have opened the door but was not entirely certain.15

  On October 14, Chief John Bates confirmed to the media that the department’s professional-standards unit was initiating an internal investigation into the allegations against the deputy chief and that he had informed both the Saint John Police Commission and the New Brunswick Police Commission. This was a potentially serious issue in its own right because if King was truthful, the man who was now second in command of the largest police service in the province had asked a veteran officer to commit perjury. Bates, who had only been on the job for two months, refused to comment on a case that was still before the courts and promised that the SJPF would continue to provide “a first-rate policing service to this community each and every day.” He expressed his “full confidence” in the force and claimed it enjoyed “the confidence and respect of the greater Saint John community.” The provincial police commission was reported as following the King allegations but was not actively involved in any investigation of police misconduct.16

  After this strange side trip, the trial was back on track with expert witness RCMP Sergeant Brian Wentzell, the bloodstain-pattern analyst.17 Ideally, this type of analysis takes place when the victim’s body is still present, but Wentzell had to rely on Smith’s photos, the victim’s clothing, and his analysis of the dried blood at the scene. On July 11, he and Smith worked on the scene for several hours without taking a break. They divided the room into sectors and photographed and documented the spatter stains in each one. After measurements were taken, a computer program was used to analyse the bloodstain patterns. Wentzell instructed the jury in the physics of blood spatter, explaining that patterns are determined by the relative positions of the victim and attacker and the degree of force employed.18

  Wentzell’s testimony detailed not only his work at the scene but also his examination of seized clothing after he returned to Nova Scotia. He recalled inspecting the Hugo Boss jacket in late 2011 and late 2012 for bloodstains.19 Under Gold’s cross-examination, the officer agreed that the VW Golf appeared to display no signs of a cleanup. Gold spoke of the ferocity of the attack, which resulted in brain matter resting on Oland’s back. Wentzell reported that there was “no distinct void” in the 360-degree circle of spatter centred on the attack (a void is created when blood splashes back on an attacker). He agreed in theory that the attacker would have been “a perfect target for spatter” and would have been in close proximity to Oland. Yet, his answers were usually guarded and qualified.20 Wentzell testified that he had been asked to examine fifteen marked areas on the jacket but identified only four small stains. Gold asked the same questions about the logbook and blood spatter that Miller had asked. Wentzell responded that spatter on the table suggested the book may not have been there during the attack. The cross-examination concluded with the sergeant stating that he had not been asked to test the rear-exit door.21

  The next witnesses, Anthony Shaw and John Ainsworth, and their earwitness testimony, were crucial to the outcome of the trial. Their statements to police and testimony, if similar to their direct evidence at the preliminary inquiry, were a problem for the Crown as they corroborated the defendant’s alibi evidence, which at this point consisted only of video clips from two retail outlets in Rothesay.22 Shaw did not alter his testimony from the preliminary inquiry, which was good news for the defence, as he placed the “loud and unusual” sounds from the second floor as occurring between 7:30 and 8:00 P.M, or more specifically, 7:45–8:00 P.M. He was certain of “a loud crash and several thumping sounds” prior to the appearance of an after-hours customer at 8:00 P.M. (The defence also entered, as evidence, a Thandi’s video clip which showed a young man parking a car on the street around this time.)

  Ainsworth, the owner of Printing Plus, had some health problems and, of all the non-police, non-expert witnesses, he was the least likely to give short, factual answers. His testimony was potentially damaging to the defence. Although he agreed with Shaw on the nature and number of sounds, he was less specific as to when he heard them. Ainsworth recalled “an initial thump” from the second-floor office, followed by “eight to ten thumps,” over a period of several seconds. During his direct examination he spoke of an alternate path out of the back alley. This “escape route” had been entered into evidence by the defence during the preliminary inquiry in 2014 in the form of a video, which showed a law student walking to the southern end of the alley, boosting himself up over a cement retaining wall, then walking across a small back yard until encountering a narrow alley between two brick buildings. The student (followed by the videographer) proceeds to the end of the alley, unbolts a wooden door, and steps onto the sidewalk on the west side of Germain Street, the street uphill from Canterbury. This semi-secret passageway, together with the back door, was a key part of a possible other-guy-did-it defence. The problem for the Oland defence was there was no plausible other guy. The video was not entered as a defence exhibit in 2015.23

  Gold was unable to shake Ainsworth from his less exact estimate of the time during which the pounding sounds occurred (anytime between 6 and 9 P.M.). The witness replied that Oland “very rarely” worked on weekends and nights, largely because of the unpredictable schedules of the rock
bands. Circling back to the key issue of timing, the lawyer attempted to show inconsistencies between Ainsworth’s informal statement to police at the crime scene, his formal written statement and response to police queries, his testimony at the preliminary inquiry, and what he was telling the court that day. Gold asked the witness if he had been “truthful” with the police in 2011. Ainsworth was unapologetic, citing the stress of the situation and the difficulty of remembering specifics of an incident that took place when he was absorbed with a frustrating work task.24

  Later that day, the jury began to view the videotaped interview of Dennis Oland (the associated 114-page transcript, Walsh explained, was not the actual evidence). As soon as the interview video was released to the media, it ended up on YouTube and other websites. It was entered by Const. Davidson, who was back on the stand. On the screen, Davidson leaves the room four times: after asking Oland to write his statement; at 7:30 P.M. to consult with the monitoring officer; at 7:58 P.M. to speak to officers Copeland and Gilbert, and finally at 8:22 P.M., following a knock on the door. The jury continued watching the video the following morning, and all eyes in the courtroom were on its computer screens and monitors. For the first time, jurors were hearing, from not only a family member, but one accused of murdering the victim, about Richard’s difficult personality, his treatment of his family, his affair with the “dragon lady,” and his not totally altruistic financial assistance to his son. They were not only listening for the details being discussed, but also assessing Oland as a credible witness. After the lunch break on October 21, the two sides agreed that Dennis became a suspect in the death of his father at 8:22 P.M. on July 7, 2011, and was made aware of this fact.25

  The remainder of Davidson’s testimony concerned his other activities in the investigation, such as helping to search 58 Gondola Point Road, acquiring video-surveillance files from a number of businesses, and helping to interview Derek Oland on July 19, 2011. In addition, he explained a series of test calls (two-hundred-and-ten calls from twenty-three locations in Saint John and Rothesay) he made with an iPhone 4, the same type as Richard Oland’s, in 2012. Along the same lines, Davidson reported on more than a dozen driving tests he conducted in 2013, attempting to gauge the suspect’s travel time to Rothesay.26

  On October 23, Davidson faced Miller’s expert cross-examination on a number of issues, such as the scientific validity of the cellphone tests, the officer’s reported comments on the preliminary inquiry, and whether he had been able to track down any information on the Hugo Boss jacket. Davidson had tried, but with no luck. Possibly to the embarrassment of the Crown, Miller entered as a defence exhibit a VISA statement from 2009 indicating that Dennis had purchased the jacket for $1,079 CDN in Orlando. (What the casually dressed male members of the jury thought about this was another question). Miller used his remaining time with Davidson to show the jury twenty-eight grainy video clips that purported to show Dennis Oland at various times on July 6, 2011.

  The defence saw no need for the Crown to bring in the next expert witness, Grant Fredericks, from Spokane, Washington. Fredericks was a forensic video specialist contacted in 2012 to assist the SJPF. In his analysis of security videos and photographs, he refused to positively identify Oland or various articles of clothing; instead he spoke of “similar features” such as buttons and the cut of the garments. He refused to be drawn into an on-the-spot expert analysis by Gold, and explained that he had not been asked to review images of the VW Golf. Fredericks’s testimony did prompt Justice Walsh to speak to counsel about asking various witnesses questions that were beyond their expertise.27 Walsh instructed the jury that it was entirely up to them to identify any “person, place, or thing” in video evidence.28

  Following Fredericks, Davidson returned for further cross-examination on video segments, including the 6:12 P.M. clip of Dennis walking north on Canterbury Street. Miller was attempting to show that his client was truthful and had merely forgotten where he had parked. Davidson was also asked if the police had any proof that the defendant owned a drywall hammer. Apparently, the theory of a drywall hammer as the murder weapon “was passed around” in police circles after the autopsy. Davidson explained that he had searched for examples of the specialized tool online and examined them in a building-supplies store, but had not bought one. He did not show any hammer to the pathologist who had testified that the victim had been attacked either by two weapons or by an object with a sharp axe-like edge and a round blunt surface.29 Miller had one more go at Davidson’s memory of the rear exit in 2011, especially his testimony that he had “jumped down” several feet to reach the ground. The building owner had testified that the stairs, which were steep, had been in place for years.30

  The last two trial dates for October featured Constable Shawn Coughlan, retired lead investigator Rick Russell, Staff Sergeant David Brooker, and Constable Jay Henderson. Coughlan explained his role in the acquisition of cast-off DNA from Robert McFadden, Scott Laskey, and Derek Oland, and in placing Dennis under surveillance prior to his arrest.31 On October 28, a juror sent a note to the judge, which momentarily caused a stir of excitement in court. The juror asked if it was “prudent” for Mr. Oland to be texting on his phone during the proceedings. This meant that one or more jurors possibly thought that the defendant was not taking his own murder trial seriously. Justice Walsh explained that Oland was communicating with McConnell and that this was not only permitted but was the “most unobtrusive way to communicate with his lawyers.” In the past, the judge explained, defendants would send notes to their lawyers during court.32

  Brooker testified about finding Oland’s cellphone number, sending a production order request to Rogers Communications, and about the details of the house search of July 14. Henderson explained his role in that search, where officers had been told to look for a blue and a brown blazer. Part of his testimony included the discovery, on a dresser, of a receipt for VIP Dry Cleaners dated July 8, 2011. One of the last matters in October was entering an agreed-upon statement of fact. This was the statement of Barbara Murray and Douglas LeBlanc who had been parked at the Renforth Wharf between 5:30 and 7:00 P.M. on July 6, 2011. There were slight discrepancies in their testimony, as described in a previous chapter.33 The news that the SJPF had seized cast-off DNA from the victim’s brother, Derek, came as a surprise to many. The sample came from a drinking glass and a fork seized at the Bourbon Quarter restaurant on April 5, 2015, by a member of the SJPF and the Rothesay Regional Police Force. Derek had been having dinner with Dennis and Lisa Oland and an unidentified woman. Derek issued a statement explaining that he would have co-operated with police if asked. He also had been vacationing outside of Canada when allegedly under surveillance.34 It was just another of those strange little twists associated with the Oland case.

  On November 2, Constable David MacDonald, a forensic officer, testified about being the “seizing officer” during the search of the defendant’s residence. He recalled changing latex gloves after handling each exhibit (in contrast to lead investigator Russell who had touched the brown jacket with a bare hand). MacDonald also described visual and chemical tests of various items such as Dennis's shoes, the logbook, the BlackBerry, and the jacket. Without the jury in the room, the defence conceded the continuity of evidence in terms of exhibits being sent to and from labs. But Gold argued that the integrity of the evidence itself still needed to be proven. Following this testimony, Walsh instructed the jury on the legal defence of an inadequate police investigation and explained that he would deal with it in detail at the end of the trial.35

  For the next two days the witness was accountant Robert McFadden, the victim’s right-hand man at the Far End Corporation. He had worked for McCain Foods and Baxter Dairies before joining Brookville Transport where he became chief financial officer. He told the court that after the trucking company was sold in 1997, he worked on a per-diem basis for Oland on various projects and by 2006 was working for his former boss full-time. The court was not told t
hat in 1998 McFadden sued Brookville Carriers, the company’s new owners, for wrongful dismissal and “mental distress, upset and embarrassment.” This was when Oland was still associated with the company. McFadden recalled the events of July 6, 2011, and said that Oland usually kept his iPhone 4 close at hand and backed it up regularly on his computer. By the time he and his son left for the day, Dennis had not arrived. McFadden thought that Dennis visited the office four to five times a year. He also described the events of July 7, including telling Constance Oland by phone, in so many words, that her husband was dead.36

  McFadden explained the details of Richard’s assistance to Dennis, which McFadden helped realize, during Dennis’s divorce. The evidence offered insights into the mentality of the father, who appeared to be making business deals even when helping his son. This included a $120,000 cash settlement with Dennis’s ex-wife, Lesley Oland, $303,000 to pay off the mortgage on the ancestral home in Rothesay, and $115,000 to pay off a line of credit. During the trial, the $538,000 sum was described either as a loan, a mortgage, or an advance on an inheritance. Starting in 2009, Dennis was obliged to pay Richard $1,667 a month, supposedly to avoid allegations of special treatment compared to his sisters. Richard asked his son to enter into a domestic contract with his soon-to-be-wife, Lisa, and that Kingshurst Estates be given a mortgage on an adjacent farm property and first option to buy the house. McFadden testified that none of these agreements were ever signed.