by Greg Marquis
The Back Door
According to the judge, the Oland defence viewed the back door as “the least conspicuous, most surreptitious escape route for the killer.”23 There were only three ways for a person to exit the second floor of 52 Canterbury: the staircase to the street level exit, the elevator into Printing Plus, or the rear door into the back alley. The two men working in the printing business from 6:00 P.M. onward did not hear the elevator operating. By the end of the trial, it was unclear whether the exit door had been locked or unlocked at 8:55 A.M. on July 7. Maureen Adamson testified that she checked it before 5:45 P.M. when she left on the day of the murder. It was occasionally open during hot summer days in order to allow in fresh air, and Robert McFadden testified that he sometimes used it as a shortcut to Germain Street to the east. Although clearly marked as an exit, the back door, given its location, may not be an obvious way to leave the building for first-time or occasional visitors who may have assumed it led to a fire-escape stairway. This was obvious when police officers (who had been on-site for several hours) and funeral-home employees ignored the rear exit and instead carried the victim’s body down a narrow stairwell to the Canterbury Street entrance.
Justice Walsh instructed the jury that the failure of the SJPF to process the back door handle and lock was an example of an inadequate police investigation. Const. Davidson’s confusion about the stairs outside the door, especially with the contradictory evidence of building owner John Ainsworth, added to the defence’s negative portrayal of the “rookie” detective (Davidson had claimed that on July 7, 2011, there were no stairs outside the door, and that he had jumped three feet to the ground). By noon of the first day of the investigation, at least a dozen officers had been on the second floor, and the constable in charge of scene continuity until at least 2:35 P.M. had no memory of the door being open. Davidson testified that he had unlocked and locked the deadbolt (presumably before 10:30 A.M.) but had nothing on this in his notes or written report. Davidson’s partner, Gilbert, did not remember the door being open. Sgt. Smith, who arrived at 10:06 A.M., visually examined the door but did not touch or photograph it. Inspector McCloskey (on scene from 10:52 A.M. to 2:35 P.M.) testified that he may have opened the door. A constable who was then a cadet observed the exit open at 2:45 P.M. and just over an hour later Sgt. Smith saw it half open.
If someone exited through the door, it could only be locked from the outside with a key. The key holders were limited in number and none were considered suspects. So if the door was locked at 8:55 A.M. on July 7, it has no significance to the investigation. But if it was not locked, this fact could strengthen the defence theory about the “real” killer. During his police interview, Dennis (who wears a hearing aid) told Const. Davidson that he may have heard a door open when he was visiting his father. He testified that he knew of the exit door but had not used it. The only doors in the general area were the double doors leading to the foyer, the door at the top of the stairs, and the rear exit, which had once been a loading door. Of course, the theory of the Crown was that Dennis was the killer and that he entered via the front door, committed murder, and walked back out through the front to his vehicle. At one point during the proceedings, a prosecutor, after listening to another defence assertion that the “real killer” had used the back door, remarked that this hypothetical person would have had a difficult time as he would keep running into Dennis Oland. The verdict obviously indicates that the jury did not see the back-door theory, or evidence of investigatory lapses, as creating sufficient reasonable doubt to acquit the defendant.
The iPhone
Three questions come to mind concerning the victim’s iPhone 4: Why was it taken? What is the significance of the 6:44 P.M. text message? What happened to the phone? In a case where robbery was ruled out as a motive, no reason was ever offered during the trial for why the phone disappeared. Was it taken during the actual attack, or did the killer seize the phone as a potential loose end? Perhaps it was grabbed on instinct or in the heat of the moment; an attacker who was capable of the explosive violence inflicted on Richard Oland was probably not acting too rationally.
Cellphone and cellphone-tower evidence is becoming increasingly important in criminal investigations, yet it is not without its problems.24 The Crown’s cellphone evidence, based on the jury’s decision, must have been compelling for placing Dennis in Rothesay at the same time that his father’s stolen iPhone was in range of the nearest cell tower. It also undermined compelling alibi evidence, the testimony of Anthony Shaw, and to a lesser extent John Ainsworth, that suggested the murder took place between 7:30 and 8:00 P.M. For the defence, the cellphone evidence was flawed and yet another unfortunate coincidence—along with the “everyday” DNA evidence on the jacket, its client’s visit to his father, and the dry cleaning of the jacket—exploited by the Crown. The defence also attempted to show that the victim did not always immediately answer his texts or cellphone calls, especially from Diana, to suggest that he was still alive after 6:30 P.M.
Yet on July 4, 2011 (his first day back in Saint John), Richard called or texted Diana five times (her calls and texts numbered six). On the following day, communication was more one sided, with Diana texting or phoning ten times, with many messages appearing to be spontaneous and low priority. Richard began his day by speaking to his mistress on the phone, talked to her again at 6:40 P.M for more than eight minutes, and then signed off with a romantic text almost three hours later. On July 6, the day he was murdered, Oland and Sedlacek exchanged nine calls or texts between 8:08 A.M. and 12:57 A.M. The last was Richard’s text deciding that they should leave on their planned trip to Portland, Maine on July 15, 2011. Given that the two were conducting an illicit affair while continuing to live with their spouses, this was a fairly sustained level of communication. On the other hand, Oland had not contacted Sedlacek between noon and 9:10 P.M. on July 5, despite her court testimony that they normally communicated after 6:00 P. M. most days.25
The police and divers searched the water and area surrounding the Renforth Wharf on more than one occasion, presumably for a murder weapon and the missing iPhone 4. Given that the phone was still alive for more than twenty-four hours after the attack, it obviously was not in the water. Although her texts did not get through, calls from Diana Sedlacek between 7:19 and c. 11:12 P.M. on July 6 and on the morning of the July 7 went to voice mail, indicating that the missing phone was still functional. An iPhone normally can hold a charge for up to two days. The results of the forced registration by Rogers Communications on July 9, “roaming error,” could have meant that the phone was still alive but outside of the provider’s network. The defence also questioned the accuracy of the cell-tower propagation maps entered into evidence and the supporting cellphone field tests conducted by the SJPF. If there is ever a new trial, the entire issue of the cellphone and cell-tower evidence will no doubt be revisited, with the defence finding an expert witness to counter Crown evidence. As the 2000 conviction of Adnan Syed (featured in the podcast Serial) suggests, there can be a lack of certainty regarding cellphone evidence and this can lead to wrongful convictions.
The Future
On April 29, 2016, Bill Teed released a statement confirming that his client had applied to the Supreme Court of Canada following the New Brunswick Court of Appeal bail decision. The defence team saw the Oland case as “a potential opportunity for the Supreme Court of Canada to clarify this point of law.” According to a defence brief, “The answer…will fundamentally define the liberty interests of all convicted persons in custody awaiting an appeal.” The document also argued that eight months was a long time for a person to remain in custody pending the start of an appeal.26 Alan Gold, in the appeal of Justice Richard’s ruling, had repeated the defence claim that the conviction had been based on an “astonishing absence of evidence,” as the grounds for release on bail at this level are the merits of an appeal of a conviction. Professor O’Byrne was doubtful that Canada’s highest court, with its oner
ous schedule, would look at the Oland bail matter and reminded the media that the “standard for review” was a real challenge for the defence, particularly in light of a 2015 Supreme Court of Canada decision.27 But on June 30, 2016, the Supreme Court, to the surprise of many, agreed to hear an appeal of the Oland bail ruling. The defence had argued that the issue at hand, whether a person convicted of a serious crime can be released pending appeal, was of “national importance.” The date for arguing the appeal of the bail ruling was set as October 31, 2016, more than nine months into Oland’s custodial sentence and two weeks after the beginning of his possible appeal before the New Brunswick Court of Appeal. These announcements gave the family hope and produced one of the first public comments on the case from Alan Gold, who described the decision as “a first step towards Dennis regaining his freedom.”28
If Dennis Oland did not win a new trial, or if a new trial would find him guilty, the earliest he could be released from prison on parole would be 2025, when he will be close to sixty. And normally the National Parole Board would expect a prisoner in this situation to admit guilt. Correctional Service of Canada, where facilities exist, does permit private family visits in apartments located on penitentiary grounds. The spouses, children, and even parents of prisoners can visit every two months. In terms of any future inheritance from the trust of Richard Oland, case law would seem to prevent Dennis, unless he is ever exonerated, from inheriting his third of his father’s fortune. Of course, this would not stop other beneficiaries from simply giving him a share.
The Supreme Court of Canada has ruled that jury verdicts are all but unassailable, but there have been exceptions. In 2013, the Supreme Court cautioned appeal judges to remember that a jury is “a trier of fact” and that higher court should “not act as a 13th juror.”29 Appeal arguments would focus on the one key alleged error: Justice Walsh’s decision to allow the evidence based on the testing of the jacket. The defence had argued before the trial that the warrant had authorized only the seizure of the garment. Therefore, the testing of the jacket (which revealed the only incriminating forensic evidence of the case) had been an unlawful seizure. The appeal would also focus on the judge’s charge to the jury. Section 24 (2) of the Canadian Charter of Rights and Freedoms compels courts to exclude any evidence “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” on the grounds that it would imperil public confidence in the justice system. Yet, the key issue is how courts, in particular the Supreme Court of Canada, interpret these rights. A court reflecting an expansive theory of rights could, in theory, find fault with Walsh’s 2015 rulings on evidence.
Interviewed in 2016, Professor O’Byrne was not convinced that an appeal on the issue of admissibilty of evidence would succeed. Up until 2009, in her explanation, courts generally expanded the rights of persons in conflict with the law with rulings on disclosure, the right to a speedy trial, and the right to be considered innocent until proven guilty. Alan Gold and Gary Miller spent most of their careers in this era of expanding rights. But according to O’Byrne, who teaches criminal law, since 2009 the Supreme Court appears to be moving in another direction, with decisions that benefit the state over the individual. The key ruling, in her view, was R. v. Grant (2009), where a majority of the court dismissed the appeal of an Ontario man caught near a high school with drugs and a handgun. One of the outcomes was a new test for determining whether evidence is seized illegally. With the Oland case, an appeal court would have to apply the Grant test to the following question: Did the sending of the jacket, already in the custody of the SJPF, to the RCMP lab in Nova Scotia bring the administration of justice into disrepute? Opinion was that the 2009 decision has the effect of giving the police more leeway.
* * *
1Chris Morris, “Court reserves decision in Dennis Oland bail request,” Telegraph-Journal, March 8, 2016, A1–2.
2Court of Appeal of New Brunswick, Oland v. R., 2016, NBCA 15, Review of decision denying bail pending determination of appeal against conviction for second degree murder: Feb. 16, 2016 (April 4, 2016).
3Bobbi-Jean MacKinnon, “Dennis Oland’s fight for bail pending appeal could go to Supreme Court,” CBC News New Brunswick, April 4, 2016.
4Mike Landry, “Dennis Oland–A Picture of Prison Life,” Telegraph-Journal, Feb. 26, 2016, B1.
5Mike Landry, “Saint John deputy police chief now under ‘criminal’ investigation over testimony at Dennis Oland trial,” Telegraph-Journal, April 6, 2016.
6Bobbi-Jean MacKinnon, “Saint John deputy chief under criminal investigation in Oland trial,” CBC News New Brunswick, April 6, 2016. In February of 2017, following a preliminary inquiry, a provincial court judge dismissed manslaughter and related charges against Const. Patrick Bulger and Const. Mathieu Boudreau.
7CTV News Atlantic, “Family issues statement on Dennis Oland murder conviction,” Dec. 23, 2015.
8CBC, “The Interrogation Room,” The Fifth Estate, Nov. 21, 2014.
9David Von Drehle, “More Innocent People on Death Row Than Estimated: Study,” Time Magazine, April 28, 2014; “The Nation’s executed mostly poor, uneducated,” Nation, June 20, 2001.
10D. Kim Rossmo, “Criminal Investigative Failures,” Texas State University, 2005, 1–2, http://www.qp.gov.sk.ca/Publications_Centre/Justice/Milgaard/PublicDocuments/04262006/Kim%20Rossmo/337674.pdf.
11CBC, “If Justice Fails,” The Fifth Estate, Oct. 17, 2007.
12Sarah Harland-Logan “Erin Walsh,” Innocence Canada, https://www.aidwyc.org/cases/historical/erin-walsh/.
13Gary Dimmock, “Justice Department refuses to let men see files,” Telegraph-Journal, March 12, 1998.
14n.a. “Chief Defends Police Work,” Telegraph-Journal, March 28, 1998.
15CP, “N.B. judge approves DNA testing on evidence in 12-year-old murder,” Telegraph-Journal, 2006; Christopher Shuglan, “Framed?” Toro, April 2006, 79–86; R. v. Pitt, 1996 4830 (NB CA).
16Associated Press, “Menéndez jurors say boys were just ‘spoiled brats’,” Utah Desert News, April 21, 1996.
17Rossmo, “Criminal Investigation Failures.”
18Jury Instructions (final), 26.
19Larry J. Siegel and C. R. McCormick, Criminology in Canada: Theories, Patterns and Typology (Nelson Education, 2015), 344.
20Jury Instructions (final), 188.
21Ruling following a preliminary inquiry, 48.
22Stuart H. James and William G. Eckert, Forensic Interpretation of Blood Evidence at Crime Scenes (New York: CRC Press, 1999), 109–10.
23Jury Instructions (final), 194.
24Rob Tripp, Without Honour: The True Story of the Shafia Family and the Kingston Canada Murders (Toronto: Harper Collins, 2012), 341–42.
25R. v. Dennis James Oland, Exhibit D-26, Richard Oland’s iPhone Communications with Diana Sedlacek, July 4–6, 2011.
26CP, “Dennis Oland seeks early bail while appeal is in the works,” Toronto Star, May 3, 2016.
27Interview with Nicole O’Byrne, March 9, 2016; Chris Morris, “Dennis Oland Bail Fight Continues,” Telegraph-Journal, April 30, 2016, B1–2; R. v. St. Cloud, [2015 SCC 27].
28Christopher Hicks, “Oland appeal using Supreme Court in novel way,” http://www.advocatedaily.com/Christopher-Hicks-oland-appeal-using-supreme-court-act-in-a-novel-way.html; Alan White, “Dennis Oland’s bid for bail appeal granted by Supreme Court,” CBC News New Brunswick, June 30, 2016.
29Jacques Gallant, “Rare move by Ontario appeal court overturns jury verdict,” Toronto Star, April 29, 2015.
Chapter 10
Preparing for Round Two
September–December 2016
Media coverage of the Oland case waned by the la
te summer of 2016 as reporters turned to other stories such as the American presidential election. Public interest in Saint John and beyond, however, remained intense, especially with the impending legal matters scheduled for that fall. Even experienced lawyers were fascinated with the case. Another development that buoyed enthusiasm was the publication of two books, first the hardcover version of this study, followed closely by CBC reporter Bobbi-Jean MacKinnon’s account of the trial. Based on sales (both books temporarily were national bestsellers) and talks and interviews by the authors, the public, especially in New Brunswick, could not get enough of the Oland story. The legal process, it would turn out, would not disappoint.1
One ray of hope for Dennis Oland’s family was the decision by the Supreme Court of Canada, announced on June 30, 2016, to hear Oland’s appeal from the bail ruling of the New Brunswick Court of Appeal. By this point, Dennis had been in prison for more than six months. Lisa Oland and her mother-in-law released the following statement: “We hope this decision brings us a step closer to Dennis regaining his freedom. Dennis’s absence these last few months has been incredibly difficult, and has compounded the loss and anguish our family has suffered since Dick’s murder.”2
