Truth and Honour

by Greg Marquis

  17Bobbi-Jean MacKinnon, “Oland murder blood stain analysis ‘limited’ by delay, expert testifies,” CBC New Brunswick, Oct. 15, 2015.

  18Testimony, Oct. 15–16, 2015.

  19Testimony, Oct. 16, 2015.

  20Testimony, Oct. 19, 2015.

  21Mike Landry, “Expert says attacker would have been ‘perfect target’ for spatter,” Telegraph-Journal, Oct. 20, 2015, B1.

  22Testimony, Oct. 20, 2015.

  23Ibid.

  24Ibid.

  25Testimony, Oct. 20–21, 2015.

  26Testimony, Oct. 21-23, 2015.

  27Testimony, Oct. 26, 2015.

  28Chris Morris, “No proof Oland owned drywall hammer,” Telegraph-Journal, Oct. 28, 2015, B1.

  29Ibid.

  30Testimony, Oct. 27, 2015.

  31Mike Landry, “Police tried to get DNA from Moosehead boss, jury told,” Telegraph-Journal, Oct. 29, 2015, A1-2.

  32Testimony, Oct. 28–29, 2015.

  33R. v. Dennis James Oland, Exhibit P-103.

  34Bobbi-Jean MacKinnon, “Derek Oland says he was out of country when police surveilled him,” CBC News New Brunswick, Oct. 30, 2015.

  35Testimony, Nov. 2, 2015.

  36Testimony, Nov. 3, 2015.

  37Testimony, Nov. 3-4, 2015.

  38Ibid.

  39Testimony, Nov. 4, 2015.

  40Testimony, Nov. 16, 2015.

  41Testimony, Nov 5–6, 2015.

  42Testimony, Nov. 5–6, 9, 2015.

  43Testimony, Nov. 10, 2015.

  44Ibid.

  45Ibid.

  46Ibid.

  47Ibid.

  48Testimony, Nov. 16, 2015.

  49Testimony, Nov. 17–18, 2015.

  50Ibid.

  51Testimony, Nov. 18–19, 2015.

  52Ibid.

  53Testimony, Nov. 23–24, 2015.

  54Testimony, Nov. 25, 2015.

  55Testimony, Nov. 26, 2015

  56Ibid.

  57Stephen J. Adler, The Jury: Trial and Error in the American Courtroom, Crown, 1994, 194.

  58Bobbi-Jean MacKinnon, “Dennis Oland testifying in his own defence ‘not that unusual’,” CBC News New Brunswick, Dec. 1, 2015.

  59Interview with David Lutz, March 8, 2016.

  60Ray Moses, “Direct Examination—Building a Dramatic Story,” Direct Examination in Criminal Cases, http://crominaldefence.homestead.com/direct.html.

  61Interview with Nicole O’Byrne, March 9, 2016.

  62Testimony, Dec. 1, 2015.

  63Ibid.

  64Ibid.

  65Testimony, Dec. 2, 2015; Chris Morris and April Cunningham, “Dennis Oland Describes His Loving Relationship with Slain Dad,” Telegraph-Journal, Dec. 3, 2015, A1-2.

  66Testimony, Dec. 2, 2015.

  67Ibid.

  68Testimony, Dec. 3, 2015.

  Chapter 8

  How Could You Do This?

  December 2015–February 2016

  As the jury rested or engaged in pre-holiday activities, Justice Walsh and the two legal teams remained busy, meeting on three separate occasions to discuss issues relating to his charge to the jury. These sessions were open to the public and Dennis Oland was present, but the deliberations were under a publication ban. Walsh had provided counsel with a draft charge and requested summaries of the key points in their cases. On the third day, December 9, a fire in a room housing batteries for backup lighting forced the closure of the entire Law Courts building as air quality had been compromised. The conference continued at another location. Former lead prosecutor John Henheffer was present, sitting in the public benches along with police officers. Most family members and court watchers did not attend these highly technical sessions. The detailed and collaborative nature of this legal horse-trading seems to have been unprecedented for the New Brunswick court. One of Walsh’s goals was to render a charge that was less likely to open to an appeal.1

  In the interest of brevity, a few examples of these deliberations will be discussed. The defence raised the Brown v. Dunn rule, which established that one party in a prosecution could not use contradictions in testimony to their advantage if they had failed to cross-examine on those details. In other words, if the Crown had failed to cross-examine Oland on contradictory testimony, then it could not use this point in its summation. One example was Oland’s ability in 2015 to recall the “workshop incident” from c. 2010 but not remember in 2011 which sports coat he had worn the previous day. Walsh agreed that he would give the jury a Brown v. Dunn instruction on the workshop-incident evidence (and provided the actual wording to counsel) but also explain that it was up to them to assess Oland’s credibility on this and all matters.2 In another ruling, he refused to classify the SJPF’s decision not to seek the phone and banking records of Mr. Sedlacek under the heading “inadequate police investigation.” The judge agreed with the Crown that it would have been difficult to find probable cause to seek a warrant and considered the decision reasonable.3 On December 4, he criticized the Crown for failing to ask the pathologist directly about a potential murder weapon and the police for mishandling the bathroom and the rear-exit door. There were some basic lapses in Crown cross-examination—for example, prosecutors never bothered to ask the defendant if he and his father had ever argued over money or the mistress.4

  On Monday, December 14, the jury returned for closing arguments. Walsh explained the process and that the jury would be sequestered as soon as the charge concluded. He reminded the panel, “You are judges,” and advised them to keep an open mind and to make their decision after hearing the closing submissions and his charge. Closing arguments at this level of court are formal affairs, with the lawyers standing at a podium in front of the jury and reading their documents. The defence argument was delivered by Alan Gold, who on one level was a logical choice because of his experience and expertise. Yet as he quickly acknowledged, he was a “CFA,” a come-from-away. Gold told the jury that “you” (either Saint John residents or New Brunswickers) were the politest people he knew. He spoke of working with Miller in the past and described the jury as the cornerstone of the justice system. In his view, the jury was no closer to knowing who killed Richard Oland that day than it had been when it assembled three months earlier. Gold reminded the jury of the two guiding principles of reasonable doubt and the burden of proof. He admitted that “the police don’t charge just for the fun of it,” but cautioned that these principles, especially in a circumstantial-evidence case, placed a heavy burden on the Crown. If they believed his client’s testimony, then they must acquit. If any evidence raised reasonable doubt, they must acquit. One of his lines was: “Never have so many searched so long to find so little.”5

  Gold spoke for three hours and addressed motive, opportunity, and means. In terms of the first factor, he pointed out that although his client’s income had fluctuated in past years, in 2011 he had a good-size client book and his job had not been in danger. His house was worth $600,000 and encumbered with a mortgage of $167,000. There was no evidence of credit being denied or of Richard being concerned or even knowing about the bounced monthly interest-payment cheque. The victim’s will did not benefit his client directly. Finally, there was no incriminating financial or personal information on the phones and computers of Richard, Dennis, or Diana. Another defence theme was the inadequacy of the police investigation, which supposedly had allowed “the true killer or killers” to escape detection. Gold cited the mishandling of the back door, Davidson’s inexperience and untrustworth
y memory of the early investigation, and the failure of RCMP experts to examine the victim’s computer-use patterns over a longer period. Gold even mentioned the King-McCloskey controversy. Other examples that raised reasonable doubt included Dennis’s visit to the office when Maureen Adamson was present, the lack of evidence as to how the attack actually unfolded, and the testimony that Shaw and Ainsworth had heard noises when his client was eighteen kilometres away in Rothesay. Dennis, furthermore, had been “candid and thorough” on the stand, admitted his mistakes, and said that he loved and missed his father. Although the inconsistencies in his client’s initial interview were not important, that interview had “made him a suspect.”6

  The defence had to neutralize the evidentiary value of the jacket, which it had attempted to block from the trial. Gold asked why his client would lie about which jacket he wore on the previous day when he knew there was security-camera footage and that the police could secure search warrants. The brown jacket was taken to the cleaners by his wife, and Dennis made no attempt to hide his clothing and shoes. The stains on the garment were small and faint and had been subjected to dry cleaning. (Gold contrasted photos of the bloody crime scene with those of the jacket.) If Dennis was the murderer, why would he leave the jacket, the dry-cleaning tag, and even the receipt in his bedroom for police to find? He downplayed the significance of the DNA findings on the jacket, which would be “good evidence” if the accused were a stranger. He also declared that there was neither any proof the spots were “spatter,” nor of the age of the stains or how they were deposited. Cast-off DNA was “a perfectly normal feature of modern life.” Gold stated that both the attacker and the weapon would have been covered in blood by the end of the attack.7

  Gold pointed out that there was no trace evidence either from Dennis on the body of the victim or from the victim on or in the VW Golf, the BlackBerry, the red bag, the logbook, the Loki, or on the pants, shoes, and shirts of the accused. And the logbook, which revealed no blood spatter, was strong evidence that Dennis had left the office prior to the murder. Video clips of Dennis from 6:12 to 7:30 P.M. on the evening of the crime indicated a “perfectly normal” person, not someone who had just committed murder. Similarly, would a person really answer his phone at 6:36 P.M. if he had just killed someone? Given that Richard did not always respond to texts and calls on his iPhone, Gold argued that he was killed after 7:30 P.M. He also noted that the “unexplained” alcohol in the victim’s system suggested that he may have left the office after 6:30 P.M. Gold also attacked the Crown’s cellphone evidence: the predictive cell-tower evidence was not conclusive, the field tests of the iPhone 4 were flawed, and the “roaming error” message was not properly pursued.8

  In his closing address Veniot spoke for two-and-half hours and identified financial issues, the brown jacket, and cellphone records as key evidence. Although the evidence was circumstantial, the Crown benefited from a framework or narrative that told a simple (if incomplete) story that jurors could easily understand. Veniot spoke of the need to assess “the whole of the evidence.” The killer had to be the accused, who reached out to his wealthy father for help and was the last person to see him alive. Dennis was known to drop in only four or five times a year to see his father at work. The crime took place sometime between 5:44 and 6:36 P.M. During that evening, Shaw and Ainsworth were engrossed in a difficult task and there was no evidence that Shaw looked at his watch when he heard noises. The victim supposedly kept his iPhone 4 close by at all times and had backed it up prior to 5:00 P.M. He did not respond to texts and phone calls from 6:44 P.M. onwards because he was dead. Veniot did not know why the phone was taken, but calls to it later that night went to voice mail. It was most likely that the phone communicated with the cell tower at 2524 Rothesay Road when Dennis was nearby.9

  As for weaknesses in the case, the police did make mistakes, but there was no proof that any relevant evidence had been lost, only speculation. As for the failure to show the pathologist a possible weapon, he had never seen the cross-hatched pattern wound before and had not wanted to speculate. The suggestion that alcohol in his system indicated that the victim had left the office before the crime was also speculation. This was a crime of passion, “born of an enraged mind,” and not a robbery gone wrong. With second-degree murder, the Crown does not have to prove motive, but it can be useful in building a case. Oland’s initial statement to the police suggested the difficult nature of the victim and the strained relationship between father and son. Added to this was animosity about his father’s adultery and a stressful financial situation. The victim, who was worth $36 million, had in the recent past helped his son with his divorce. But assistance from Richard Oland came with a price, including a monthly interest-only payment and certain conditions governing the family property on Gondola Point Road. Despite this help, and two collateral mortgages, Dennis Oland, by 2011, was taking overseas trips and living beyond his means. Facing mounting debts and diminished income, he had even secured advances on his pay from his employer and was promising CIBC Wood Gundy that he could deliver investments of $10–20 million within a few months. Veniot went over the accused’s bank account and credit-card information in detail to paint a picture of financial desperation as of early July 2011.10

  As he had in 2009, Dennis supposedly attempted to resort to “the bank of Daddy,” but unsuccessfully. The Crown doubted that the logbook or family history motivated the visit to Far End Corporation that day. Veniot painted Dennis’s hesitant moves after leaving his own office on July 6 as “odd.” The reason why he walked in the wrong direction to his car after the second visit was that he was “disturbed and distraught.” One implication was that the father had rebuffed his request for help and possibly did so in an inflammatory fashion. Another was that Richard had just been murdered. Veniot pointed out that Dennis, with a sick wife at home, stopped at the Renforth Wharf, and, wearing his sports jacket, carried a red bag allegedly to pick up broken glass and then walked to the end of the wharf. After telling police three times on July 7 that he had worn a blue blazer the previous day, he was informed that he was a suspect in his father’s death and that his wardrobe would be confirmed by security cameras. The next day the jacket was dropped off for dry cleaning and the shirt he had worn for laundering. Sgt. Wentzell’s expert opinion was that it was difficult to be exact in determining the amount of spatter on an attacker. Laturnus, the defence expert, had not been to the scene and relied totally on photographs. As for the hairs clutched in the victim’s fingers, the reason there was no positive DNA match with Dennis Oland was because they lacked their roots. Veniot cited Kearsey’s testimony about dried blood not transferring to other surfaces, thereby defending the integrity of the jacket in storage and transit. DNA typing provided “strong evidence” (Veniot did not say “proved”) that Dennis killed his father. As for the defence argument that the victim was a “close talker,” the Crown pointed out that no DNA of a female or females was found on the jacket. Veniot described the back door to the Far End office as “nondescript” and “easy to miss.” Mocking the phantom “third-party-killer” theory, he declared that there was no evidence linking the back door to the crime. The weapon was carried out of the office. Mr. Sedlacek was, in theory, a possible suspect, but he had not known about his wife’s affair. Veniot told the jury that the “inescapable conclusion” was that Richard had been murdered by his son.11

  In the Canadian legal system, trial judges not only ask witnesses questions of clarification, they also sum up the major evidence of a trial in their charge to the jury. Both of these practices are in contrast with American practice and reflect British influences.12 Walsh began his charge to the jury on Tuesday, December 15. In his view, at two hundred pages, this was the longest charge in New Brunswick history.13 He began by reminding the jury of its duties, the general rules of court, and the special rules relating to this case. And in a largely circumstantial case, he explained the difference between direct and indirect evidence. He also reviewed
the specific points that the Crown had to prove beyond a reasonable doubt. Walsh reminded the jury to base its decision on the evidence presented in court and not to be influenced by the media or “sympathy, prejudice, or fear.” The key question for them to answer was whether the Crown had proven, beyond a reasonable doubt, that the accused had killed his father.14

  Walsh provided an extensive review of the evidence and reminders for assessing its probative value. He explained that DNA “genetic profile estimates are not intended to be precise” and reminded the jury that there was no direct evidence on the impact of dry cleaning on bloodstains or that the weapon had been a drywall hammer. Walsh also clarified that the Hemastix test was not a confirmatory test for the presence of blood, just a screening test. A key (perhaps the key) question for the jury was if the DNA found in spots AA, AC, and AO on the jacket was derived from blood as opposed to other biological material such as skin cells or saliva (especially as an area on the inside cuff of the right sleeve had DNA consistent with the victim but no blood). Walsh also cautioned the jury against relying too much on the cell tower–propagations maps produced by expert witness Sadoun when attempting to ascertain the location of the victim’s missing iPhone. As required by law, he noted possible examples of an inadequate police investigation, such as failing to properly secure the scene, including the bathroom and the rear-exit door.15