Truth and Honour
Page 31
The reason or reasons behind the assault may or may not be revealed, depending on the legal outcome of the incident. According to the convict code, a convicted murderer usually enjoys considerable status behind bars, and inmates who are “tough, smart, and discreet in their dealings are respected.”16 Prisoners also gain respect through intimidation and exploitation. Oland may have been pressured for money or some other favour, or he may have been the target of class resentment exacerbated by media coverage of the case. Perhaps even cons disapprove of people who kill a parent. Most inmates grow up in criminogenic families and rarely have a chance to lash out at representatives of straight society. In some cases, they attempt to gain status by assaulting a well-known inmate. When prisoners refuse to lay charges after being assaulted, the police, according to Bernard Galarneau, who worked in federal corrections as a psychologist for more than two decades, can still initiate a prosecution based on the testimony of correctional officers and security-camera footage.17
Appealing the Conviction
In Canada, when convicted individuals are given leave to appeal a conviction, the odds are not always in their favour, and when they are successful this generally means not acquittal, but a new trial. There are also appeals of sentences, which was not a factor in the Oland matter given that the sentence imposed was the minimum possible for the offence. The Oland legal team, which had filed for an appeal months earlier, must have felt some confidence when it headed to the provincial court of appeal in October. It had filed a written submission in July that was almost one hundred pages long.18
The law courts are located in an historic but outdated building in downtown Fredericton that was once a school. The courtroom reserved for the New Brunswick Court of Appeal (NBCA) reeks of history, with framed portraits of various “dead white males” on the walls and in the corridors, but it is cramped. Given the intense level of public interest, concerns about access to the proceedings (spearheaded by UNB law professor Nicole O’Byrne on behalf of her students) prompted a radical response by the standards of New Brunswick judges. The court announced that it would co-operate with the CBC to live stream the proceedings, the first time this would be done in a province where cameras are banned from not only courtrooms, but also court buildings. Many of the few available seats were reserved for media. The author, whose book on the case had appeared a few weeks before the hearing, requested to be given the status of media, but was denied. The registrar of the court explained that only “nationally recognized journalists,” and not academics and freelance authors, were given this special privilege, because they report “in the interest of the general public.”19
The appeal was heard by Chief Justice J. Ernest Drapeau and Justices Margaret Larlee and Kathleen Quigg, the panel that handled Oland’s second bail appeal earlier in the year. Drapeau, who was born in Campbellton, graduated at the head of his class from UNB Law School in 1974. He was appointed to the provincial appeal court in 1998 and served as the senior francophone judge for that court prior to being made chief justice in 2003.
The second Oland bail ruling, rendered in April 2016, had agreed with Justice Marc Richard’s February decision that public confidence in the justice system would be undermined by the release of a convicted murderer pending appeal of his conviction. Drapeau, who wrote the bail decision, did agree with the appellant (Oland) that the grounds of appeal of his conviction “appear to be serious.” As for whether the trial verdict had been unreasonable, the chief justice wrote in April, “remains to be seen,” but he noted that at trial there had been no motion for a “directed verdict of acquittal” and that the defence had not requested the jury to be brought back to court for “corrective action” following allegedly “prejudicial” remarks by Justice John Walsh. (A directed verdict is a rarely used move where a trial judge, acting on their own or prompted by the defence, “directs” the trial away from the jury if insufficient evidence had been presented to find guilt beyond a reasonable doubt. The result is an acquittal.)20
Dennis, well-dressed as usual, was brought to court in a sheriff’s van, handcuffed, and sat in the prisoner’s box, wearing leg irons, in the rear of the tiny courtroom. Several reporters as well as a handful of spectators who had lined up outside the building before 8:00 A.M. were present. Dennis’s family, including his daughter Hannah, who may have been attending a local university, was in attendance. The family group included his wife, mother, and two sisters. There were more Olands and their supporters in the room than anyone else.
Alan Gold conducted the appeal. If there had been doubts that he was the correct fit for a jury trial in a small Maritime city, he was now obviously in his element. All the same, the appeal’s written submission seemed somewhat uneven, with a kitchen-sink approach. The most dramatic argument was that the jury, based on the evidence, had rendered an “unreasonable verdict.” Gold described the case as a “mystery based upon many different kinds of evidence,” and reminded the court that his client had testified at the trial. The unreasonable-verdict ground had nothing to do with the admissibility of evidence or alleged errors in the judge’s instructions; it was a direct attack on the Oland jury. The appellant’s submission actually suggested that “this jury,” lacking the “judicial experience” of a trial judge, must have been led into “error” through “reasoning fallacies and logical traps,” always a danger when “evidence is superficially attractive.”21 Oland’s brief accused the Crown of “tunnel vision” and “confirmation bias,” two terms prominent in the literature on wrongful convictions. In many ways the document was a summary of the case from the point of view of the defence. Gold addressed this ground on the second day of proceedings, explaining that “evidence can be overvalued.” If accepted by the NBCA, this ground would have resulted in an acquittal.22
For the first day and a half, the chief justice asked some tough questions and made some pointed remarks, and the result was that the defence appeared to be on edge and the Oland family visibly worried. Gold began with a strong point but seemed to get bogged down and started refighting the trial, complete with courtroom rhetoric (“not a shred of evidence”), based on problematic evidentiary issues such as Dennis’s casual demeanour when shopping after visiting his father or the lack of blood spatter on his shoes or clothing. Another line of argument was that the Crown had cleverly outfoxed the defence by playing on a series of coincidences involving the defendant.
Both Drapeau and one of his colleagues asked Gold when he was going to reach the important parts of his argument, which appeared to be coded language for the lawyer to stop wasting the court’s time. Drapeau also reminded Gold that “we are not trying this case,” and that the trial jury had been a jury of “common sense people,” not lawyers.23
Contesting the appeal for the Crown was Kathryn Gregory, assisted by Derek Weaver. Their task was to convince the appeal court to allow the conviction to stand. The justices had read the appeal submissions, trial transcripts, and the associated case law, so the chief justice informed Gregory that the court did not need to hear oral arguments on all of the Crown’s specific objections to the appeal. In its response to the appellant’s arguments on unreasonable verdict, the Crown reminded the appeal court that the jury saw and heard the actual evidence and had been properly instructed by the judge.24 In her oral argument Gregory stated that “everything Dennis Oland said or did is of interest, and relevant.”25
The grounds of appeal that received the most attention from Drapeau and his colleagues was the issue of post-defence conduct, a type of circumstantial evidence that courts have recognized as highly ambiguous. For example, a person may attempt to flee police after a crime has been committed, or conceal evidence, but this by itself is not evidence of guilt.26 This “error in law” in terms of the trial judge’s instructions to the jury was the first ground listed in the appellant’s submission. The document cited several legal decisions to prove that Justice Walsh had misdirected the jury by failing to explain the law of evidence
surrounding “an intentional falsehood.” The issue was the discrepancy between Dennis’s police interview on July 7, 2011, and his courtroom testimony. In the former he said he had worn a blue blazer the day of his father’s death; at trial he told the jury he had worn a brown jacket. The appeal brief continued: “It was clear that [Oland’s] statement regarding his jacket colour was in error, but there was no evidence to support any reasonable inference that this error was a deliberate lie or fabrication, much less made to evade detection.”27 The Crown’s submission explained that the evidence surrounding the statement on the jacket had not been used to encourage the jury to infer guilt but was only one part of the overall evidence on which the case turned. There was a detailed exchange on this point in court between the chief justice and Gregory, the effect of which appeared to revive the spirits of the Olands.28
The proceedings ended on Thursday, October 20, with the chief justice announcing that the court could possibly issue an oral judgment on the following Monday. Dennis was taken back to jail. On the morning of October 24, with the proceedings live streamed, the decision was announced: Oland’s conviction was being quashed as the trial judge had given the jury “fundamentally flawed” instructions. The judgment was a vindication for the defence, but on one ground only. Drapeau explained that Justice Walsh had failed to instruct the jurors that “even if they found the appellant’s erroneous statement was a lie, it had no probative value unless they concluded on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.”29 Ironically, Dennis’s inconsistent statement to police in 2011 was winning him a new trial. Despite this seemingly narrow ground, which had little to do with the quality of overall evidence entered by the prosecution, many remained convinced that the Crown’s case as a whole had been too weak to support a conviction.
Dennis, who throughout proceedings had been sitting in the prisoner’s box in the rear of the small courtroom, showed no emotion, but his wife and mother were obviously overjoyed. Yet the news was not totally positive: the NBCA had not acquitted Oland; it was ordering a new trial on a charge of second-degree murder. The decision had not really addressed the issue of guilt or innocence, only trial fairness. And Dennis was still not a free man; he faced a bail hearing the following day. After more than ten months in prison, he had reverted back to being an accused person who, as Drapeau explained, had reacquired the presumption of innocence. This meant at least one more night in jail. Despite this, the Oland entourage left the courthouse with its mood buoyed. Gold told reporters that “we’re delighted that this Christmas is going to be a lot better for them [the Oland family] than last Christmas was.” Derek Oland issued a statement confirming that he was pleased by the outcome and that the family continued to view his nephew as innocent. With the media on hand, Oland was released from custody the following day by Justice Marc Richard, with a $50,000 surety posted by uncle Derek. Dennis left the courthouse with a group that included his beaming wife, his three children and stepson, two of his friends, and his sister Jacqueline. Other than warning Fredericton blogger Charles Leblanc to back off, members of the entourage said nothing to an accompanying group of reporters as it headed down Queen Street and into the local offices of Cox Palmer.
At this point, the impact of the decision (if it stands) on the courts of New Brunswick is difficult to predict. On one level, the ruling could be a further sharpening of existing case law such as Tanasichuk that serves notice to all trial judges to pay closer attention to post-offence conduct. But another interpretation is that it could impose “a nearly impossible standard” for judges preparing final instructions to a jury.30 In its appeal submission, the Crown had written that “accused persons are entitled to properly instructed juries, not perfectly instructed juries.”31 One immediate impact of the ruling was the decision of the New Brunswick Police Commission to halt—for the time being—its investigation of how the SJPF had handled the Oland investigation. The commission announced that it was continuing its inquiry into Deputy Chief McCloskey’s alleged remarks to another officer in 2011 about entry into the crime scene. Its report was expected by the end of year. In early March 2017, the commission confirmed that its investigation had concluded on December 26, 2016, but it was unable to release any details.32
In late 2016, Justice Walsh, now deemed by the NBCA to have given “critical misdirection” to the Oland jury, was preoccupied with another murder trial with heart-wrenching evidence, all the more so because of the youthfulness of the victim and the accused. Devin Morningstar had been charged with the first-degree murder of Baylee Wylie, who was only eighteen. In late 2015, Wylie had been stabbed between one hundred and two hundred times in a Moncton apartment, which then was set on fire. Dr. Ather Naseemuddin, the pathologist in the Oland trial, played a similar role in the Moncton court. Two other people arrested for the murder have yet to face trial. Morningstar was convicted, and in early 2017 was given the mandatory sentence of life with no hope of parole for twenty-five years. Walsh was perplexed by the killing and its extreme violence, declaring that the victim had been “tortured to death.” He also paid tribute to the jury, not only for its service but also for the emotional toll of hearing and viewing disturbing evidence and also convicting an accused who “looks like a boy” of such a heinous crime.33
Making Legal History
With one possible exception (mentioned below), Dennis and his family and supporters had no reason to be interested in the next stage of legal proceedings triggered by the murder of his father. With Oland free on bail, the long-awaited sitting of the Supreme Court of Canada on October 31 was somewhat anti-climactic. In a media interview, Professor Nicole O’Byrne explained that the specific issue the SCC would address was the meaning of “public confidence in the justice system” as set out in the relevant Criminal Code section covering bail. Yet as lawyers and spectators readied for court on Halloween morning, it was not certain that the justices would hear arguments on the matter. In another sign of the considerable financial resources brought to bear in this case, which may be unprecedented in Canadian history, not only Dennis, but also his wife, mother, two uncles, and one aunt, were present in court as observers. Previously Bill Teed (who along with Miller also was present) told a reporter that his client was “very happy” and wanted to be at the hearing in Ottawa.34 In contrast to New Brunswick, where members of the Oland family had become media celebrities, they were not well- known to the Ottawa reporters who captured their images on video in the lobby of the Supreme Court building.
The Supreme Court is an impressive edifice inside and out, designed to convey to the public the majesty of the law. The granite structure, which features a chateau-style roof, was completed in 1940. The justices enter the chamber through a large door in the panelled rear wall and in addition to counsel the justice’s clerks—law students—are present. Sitting on the right near Crown prosecutors Kathryn Gregory and Derek Weaver were lawyers representing the attorneys general of Ontario, Alberta, and British Columbia. On the left side of the court with Gold and Miller was Michael W. Lacy of the Criminal Lawyers’ Association, which had been accepted as an intervenor. Gold had enjoyed past success at the Supreme Court but in one instance his legal acumen was of no avail. In 2000, he had helped prepare a request for the court to consider the appeal of notorious Quebec Hells Angel Maurice “Mom” Boucher. In 1998, Boucher had been acquitted for the first-degree murder of two prison guards, Diane Lavigne and Pierre Rondeau, who both left families behind. Boucher was also suspected by police to be behind much of the carnage of Quebec’s deadly biker war, whose casualties included an eleven-year-old boy killed in a bomb blast. Prosecutors appealed to the Quebec Court of Appeal, which dismissed the acquittal, and Boucher was arrested and a new trial was planned. In 2001, despite Gold’s assistance, Boucher’s leave to appeal was denied, and in 2002 he was convicted in a new trial and sentenced to a life in penitentiary. In 2015, he was charged
with conspiracy to commit murder and in 2016 he was charged with attempted murder after an assault on a fellow prisoner in the Sainte-Anne-des-Plaines penitentiary.
On October 31, Chief Justice Beverley McLachlin commenced the proceedings by stating that the court, given Oland’s release, was no longer convinced of the necessity of hearing the case, and asked the parties for brief arguments on this point. Gold stated that there was a public interest argument for having the court clarify the uncertain law of bail for convicted persons seeking an appeal. He also noted that the four provinces at the table all wanted a clarification on the issue (but did not agree among themselves on the details). Gold also pointed out that it was possible that his client could once again find himself applying for bail in the future and being denied based on the restrictive precedent in New Brunswick. The Crown and the various intervenors made brief statements and the justices retired for a short recess to consider the matter. When they returned, McLachlin announced that they were prepared to hear arguments. Their decision, no doubt, was based on the fact that although the court had made a recent ruling on pre-trial bail, there was no nationally significant decision on the issue of post-offence bail pending an appeal.35
The oral arguments were conducted in a fairly compressed time frame: the court heard from six lawyers and wrapped things up by 12:40 P.M. The appellant’s factum (brief) argued that if the New Brunswick appeal court’s ruling on bail stood, it would be impossible for anyone convicted of a serious offence in that province to be released pending an appeal. It also claimed that in reported decisions nationally since 1976, 44 per cent of convicted murderers who applied for bail (thirty-four out of seventy-seven) had been successful. Oland’s lawyers proposed that if there were “arguable grounds” to secure a new trial or an acquittal, then the justice reviewing post-conviction bail should grant it.36 In court Gold explained that the courts had a duty to explain to the public that a bail ruling favourable to an applicant was “not just a murderer being released.” Rather than “strong grounds” of appeal as being one of the tests for release, the appellant preferred “arguable grounds that carry a reasonable prospect for a new trial of acquittal.” Justice Rosalie Abella, for one, had difficulty in understanding how Gold’s suggested wording differed from that of reported decisions. The justices also fielded questions about how the seriousness of a crime related to the test for a bail justice in deciding outcomes. Gold’s view was that “not all murderers are the same,” suggesting that the circumstances of each case should be a factor in determining bail. He also reminded the court that the Oland conviction appeal had been heard in a relatively quick time—in many provinces, defendants had to wait two or three years, often in custody, before their appeals were heard.37