by Greg Marquis
On February 12, the same day as Oland’s bail hearing in Fredericton, Justice Walsh attended to his final duty connected with the trial: dealing with the more than thirty prospective jurors who had not shown up at Harbour Station months earlier. The judge heard each individual and accepted the excuses of eleven of them. The rest were found to be in contempt of court and penalized with fines. Walsh explained that he was obliged to inflict these penalties to protect the institution of the jury, “the cornerstone of democracy, pure and simple.”51
After his sentencing hearing, Dennis spent the night in custody and was taken by sheriff’s service van to the law courts in Fredericton. For the first time, media cameras recorded him in handcuffs and leg shackles as he entered the rear entrance, just like any other convicted criminal or prisoner on remand. The bail hearing was argued before Justice Marc Richard of the New Brunswick Court of Appeal. In 1997, as a defence lawyer, Richard had won an important case, Stillman (as discussed in chapter 4), before the Supreme Court of Canada. Jack Walsh had acted for the Crown. According to Professor Nicole O’Byrne, the odds were against the prisoner and the defence may have made the application for other reasons. One of the criteria for bail was whether there were merits to the possible appeal. The Crown did not view Oland as a flight risk but it did argue that releasing a person convicted of murder would damage public confidence in the administration of justice. Indeed, no convicted murderer had even been released on bail in New Brunswick, and Crown Prosecutor Kathryn Gregory was aware of only twenty-one such cases from across Canada. (Most murderers have pre-existing criminal records, which works against release.) In each of these cases, the circumstances had been exceptional. The Crown, if Oland were to be released, wanted sureties of $400,000.52 Gold claimed, based on the evidence, that the jury’s verdict had been unreasonable and that the trial judge had made errors in his instructions. He argued that the prisoner should be released pending his appeal and stated that he would work with his father’s companies and live at home with his wife in Rothesay. Counsel had advised the judge that the earliest date an appeal could be argued, if leave were granted, would be several months in the future (transcripts had to be completed). Richard reserved his decision until the following week.53
On February 17, the media was on hand, along with Oland family members and supporters, to hear Justice Richard’s ruling. The judge pronounced that “the grounds of the appeal may be clearly arguable” and that Oland did not represent a threat to the public. But he used a hypothetical “reasonable member of the public” and a defence of trial by jury to deny bail in this case. He wrote that this reasonable person “would know that the jury which delivered the verdict convicting Mr. Oland of second-degree murder is presumed to have been composed of reasonable people acting reasonably” following a three-month trial where they heard considerable evidence. This was a serious offence that had been carried out with great brutality. The judge agreed with the Crown that in this case there was no “unique circumstance” to justify release and that if bail were permitted “the confidence of the reasonable member of the public in the administration of justice would be undermined.”54 The prisoner, unlike his family and friends who were on hand, appeared to take the decision well. The Oland family issued a statement in response: “Today’s decision is difficult to accept. We know Dennis has been wrongly convicted and are confident our appeal will see justice prevail. His prolonged absence will be incredibly difficult and only serves to further compound the loss and anguish our family has suffered since Dick’s murder. We will continue our long legal battle by pursuing every option to prove Dennis’s innocence. We will not rest until he is home and Dick’s killer is found.’’55
On February 19, two days after bail was denied, the CBC program Fifth Estate aired the episode “The Richard Oland Case: Murder in the Family,” narrated by Bob McEwen. It was a basic overview of the investigation and the trial based on CBC footage. The only expert consulted was a Halifax journalism professor. The forty-four-minute-long program sacrificed important details of the investigation in order to interview neighbours and friends of the Olands. These included Larry Cain, who described the allegation against Dennis as “preposterous,” Saint John businessman Dale Knox, and Rothesay neighbour Kelly Patterson. These interviews, recorded after the conviction but before sentencing, reflected the “sufferings of the family” narrative that was quite widespread in the community. The program focused on four key elements of the investigation: the son’s visit to 52 Canterbury, the suspect’s apparent lying about the jacket and the DNA evidence found on the jacket, the incriminating 6:44 P.M. text to the missing iPhone, and the forensic accounting evidence. The friends interviewed either explained that they were unaware of problems within the Oland family or defended Dennis. Cain, for example, explained that the nature of his friend’s employment meant his income fluctuated. Patterson declared that “the killer is still at large…nobody is looking for him.” Interestingly, the program featured not a single person who believed that Dennis was guilty.56
* * *
1Interview with Nicole O’Byrne, March 9, 2016.
2Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Her Majesty the Queen. v. Dennis James Oland, Ruling # 7, Dec. 9, 2015.
3Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Saint John, Her Majesty the Queen v. Dennis James Oland, Ruling #8, Dec. 9, 2015.
4Pre-charge conference, Dec. 4, 2015.
5Closing argument, Dec. 14, 2015.
6Ibid.
7Ibid.
8Ibid.
9Ibid.
10Ibid.
11Ibid.
12Regina Schuller and Neil Vidmar, “The Canadian Criminal Jury,” Chicago-Kent Law Review (86), 487–535 (2011).
13Judges, in drafting their charges, are assisted by manuals such as Honourable Mr. Justice David Watt’s, Watt’s Manual of Criminal Jury Instructions, Second Edition, Carswell, 2014.
14Jury Instruction (final). The full document can be found online at: http://s3.documentcloud.org/documents/2648059/R-v-Oland-Final-Instructions-Jury-s-Written.txt.
15Jury Instruction (final), 134–35.
16Jury Instruction (final), 138.
17Jury Instruction (final), 198.
18Bobbi-Jean MacKinnon, “Dennis Oland wails uncontrollably after guilty verdict in father’s murder,” CBC News New Brunswick, Dec. 19, 2015; Chris Morris and Mike Landry, “Dennis Oland breaks into heaving sobs as guilty verdict delivered,” Telegraph-Journal, Dec. 21, 2015, A3.
19Morris and Landry, “Dennis Oland breaks into heaving sobs”; CBC, “The Richard Oland Case: Murder in the Family,” The Fifth Estate, Feb. 19, 2016.
20CBC, “The Richard Oland Case,” The Fifth Estate.
21Morris and Landry, “Dennis Oland breaks into heaving sobs,”; CP, “Work beginning for appeal in Oland murder conviction: lawyer,” Globe and Mail, Dec, 21, 2015.
22[Editorial cartoon] Telegraph-Journal, Dec. 22, 2015, A8.
23CBC News New Brunswick online, post in response to Dec. 19, 2015 story.
24CBC News New Brunswick online, post in response to Dec. 19, 2015, story.
25The author is keeping this Facebook post anonymous.
26Chris Morris, “Circumstantial case Against Oland Hinged on Key Evidence,” Telegraph-Journal, Dec. 21, 2015, A1.
27Ibid.
28CP, “Oland family members call on police commission to release inquiry’s findings,” Toronto Sun, Jan. 5, 2016.
29CP, “New Brunswick police commission to probe police handling of Oland murder,” Globe and Mail, Dec. 22, 2015.
30Morris, “Circumstantial case,” A2; Interview
with Nicole O’Byrne, March 9, 2016.
31Morris, “Circumstantial case,” A2.
32Joel Pink, CTV Atlantic News, Dec. 21, 2015.
33CBC Radio, “After the verdict; should there be more counselling for jurors?”, Day 6, Feb. 6, 2016.
34Notice of Appeal, In the Court of Appeal New Brunswick between, Dennis James Oland Appellant and Her Majesty the Queen Respondent, Jan. 20, 2016.
35Affidavits of Constance Oland, Jan. 13, 2016; Affidavit of Derek Oland, Jan. 12, 2016; Affidavit of Dennis James Oland, Jan. 12, 2016.
36CP, “Dennis Oland sentenced to life for murder of his millionaire father,” London Free Press, Feb. 11, 2016; Interview with David Lutz, March 8, 2016.
37Pre-sentence report for the Court of Queen’s Bench, R v. Dennis James Oland, prepared by Jim Peters, Feb. 2, 2016.
38Bobbi-Jean MacKinnon, “Dennis Oland could co-direct murdered father’s companies from behind bars.” CBC News New Brunswick, Feb. 20, 2016.
39Victim Impact Statement, John Ainsworth, Feb. 2, 2016; Victim Impact Statement, Preston Chiasson, Feb. 2, 2016.
40Sentencing hearing, Feb. 11, 2016.
41R. v. Dennis James Oland, Letters filed in support of Dennis Oland, Jan–Feb, 2016.
42Constance Oland to Justice John Walsh, Jan. 16, 2016.
43Ibid.
44Ibid.
45Pre-Sentence Report for the Court of Queen’s Bench, R. v. Dennis James Oland.
46R. v. Dennis James Oland, Sentencing hearing, Feb. 11, 2016.
47Ibid.
48Ibid.
49Ibid.
50R. v. Dennis James Oland, Media ban hearing, Feb. 11, 2016.
51Mike Landry, “Thousands in fines issued for those who skipped Oland jury duty,” Telegraph-Journal, Feb. 13, 2016, B6.
52Interview with Nicole O’Byrne, March 9, 2016.
53Kevin Bissett, “Oland jury got it wrong, lawyer tells appeal court as he seeks bail,” Globe and Mail, Feb. 12, 2016.
54Court of Appeal of New Brunswick, 2-16-CA, Dennis Oland and her Majesty the Queen, Bail ruling, Justice Richard, Feb. 17, 2016.
55Bobbi-Jean MacKinnon, “Dennis Oland denied bail as he awaits murder conviction appeal,” CBC News New Brunswick, Feb. 17, 2016.
56CBC, “The Richard Oland Case,” The Fifth Estate.
Chapter 9
A Wrongful Conviction?
March 2016–August 2016
Following its defeat in February, the Oland defence team continued its quest to make New Brunswick legal history: it attempted to convince a court to release a convicted murderer on bail. On March 7, 2016, three judges of the New Brunswick Court of Appeal heard arguments on the correctness of Justice Richard’s decision to deny Oland’s release. Crown prosecutor Kathryn Gregory repeated earlier arguments about public confidence in the administration of justice and the sanctity of the jury system. Alan Gold, on behalf of his client, claimed that a jury had registered a conviction despite “an astonishing lack of evidence,” that the verdict was unreasonable, and that the police were guilty of tunnel vision. The court decided it would reserve its decision. Justice Ernest Drapeau also announced that the court had set aside one week, starting October 18, 2016, to hear arguments on the merits of an appeal.1 The results of the bail review were released on April 4. Drapeau wrote that he was “duty bound” to uphold the February 17 decision and Justices Larlee and Quigg concurred. Yet, Drapeau agreed that “the grounds of appeal appear to be serious.”2 By this time, Oland, aside from court appearances, had been in custody for three-and-a-half months. Family lawyer Teed told media that a final appeal to the Supreme Court of Canada had not been ruled out, and confirmed that the defence was hard at work preparing for the appeal of the conviction. Constance Oland issued another statement about the family’s commitment to proving Dennis’s innocence and finding “Dick’s killer.”3
Pending his possible appeal, Oland remained in federal custody. What the average convicted criminal experiences in prisonis rarely of interest to the New Brunswick media, but one report outlined the likely conditions of Dennis’s custody. Following his sentencing, he probably remained in provincial custody, presumably in Saint John, for two weeks. Next, he was sent to the Springhill Institution, a federal facility in Nova Scotia, to be assessed for intake by a parole officer. His rating as a prisoner depended on his admission of guilt, a difficult situation for an individual insisting on his innocence. Many convicted murderers are sent to a maximum-security penitentiary such as the Atlantic Institution at Renous in the Miramichi region, but more are kept in medium- and minimum-security institutions. Correctional Service of Canada, for reasons of privacy, does not notify the public about where it houses individual prisoners. Oland has no criminal record, is small of stature, and a likely candidate to be bullied while in custody. His lawyers describe him as a model prisoner. There were rumours that as of June 2016, Oland was either still at Springhill or at the Dorchester medium-security penitentiary, a two-hour drive from Saint John. This foreboding-looking Victorian institution, built in the 1870s, is well past its prime. In Dorchester, or any other federal institution, inmates wear prison-issue clothes, and can receive mail and visitors from the outside and place calls to approved persons; they are also permitted to have televisions in their cells (if they can afford one) and can earn a small daily allowance. Outside exercise is limited to one hour a day and all mail and phone calls (except calls with lawyers) are monitored. Family visits are permitted, but visitors can bring nothing into the penitentiary on regular visits except change for vending machines near the visiting lounge.4 A check with Service New Brunswick in June 2016 indicated that Dennis was still a director of Kingshurst Estates Ltd. and Far End Corporation, companies founded by the man who, according to a jury of his peers, he murdered.
In early April 2016, the media reported that Deputy Chief Glen McCloskey was being investigated by the Halifax Regional Police, on behalf of the SJPF, for allegedly attempting to interfere with a witness in the Oland matter. Early in the year, a NB Police Commission investigator had concluded that the allegations against McCloskey were beyond the provincial Police Act and required a criminal investigation. Chief Reid defended the reputation of his deputy and described the exercise as ensuring fairness and transparency, but the allegations against McCloskey, as well as examples of lapses in the Oland investigation, surfaced at a time when many New Brunswickers were troubled by the growing police-misconduct numbers. The most dramatic, also investigated by an outside police service, was the shooting of Michel Vienneau by Bathurst Police in 2015. Charged with manslaughter and other counts, two officers in February 2016 opted for trial by jury.5 During the remainder of 2016, McCloskey, a veteran of twenty-eight years, remained on active duty.6
On December 23, two days before Christmas and four days after the conviction, Constance and Lisa Oland issued the following statement through their lawyer: “We continue to be stunned and shaken by the outcome of the trial—especially given the circumstantial nature of the prosecution’s case….We know Dennis has been wrongfully convicted and we will pursue an appeal as soon as the process allows.” According to the family, the verdict was a wrongful conviction and the killer of Richard Oland was “still at large.”7 The family, which continued to work with at least three lawyers, was attempting to influence public opinion through the media, but because of the possible appeal was not doing interviews.
The use of the term “wrongful conviction” was interesting and in many ways highly novel given the circumstances of the case. The outcomes of trials where defendants are represented by high-profile legal teams funded with a war chest of millions of dollars usually are not classified under this heading. In the best-known cases, the term generally is reserved for p
eople who have been convicted of murder or sexual assault on the basis of police and prosecution tunnel vision, informed by a usual-suspects type of bias: the defendants usually have been young, working-class, poorly educated individuals with spotty employment patterns and criminal records. In Canada, many of the best-known cases date from before the advent of full disclosure to the defence and the acceptance by the courts of DNA evidence.
