Truth and Honour

by Greg Marquis

  44SCC, Oland appeal, Attorney General of Alberta Factum, Oct. 12, 2016, paragraphs 7 and 41.

  45“Canadians confidence in police, courts sees significant rebound over 2012 sentiment,” Angus Reid Global, May 6, 2014.

  46Serial, Season 1, Episode 8, The Deal with Jay, https://serialpodcast.org/season-one/8/the-deal-with-jay.

  47Janice Middleton, “Special Report: Why the second-degree murder case against Oland fell apart (Part 1),” Chronicle Herald, Nov. 5, 2016; “New Oland trial could take fresh approach (Part 2),” Chronicle Herald, Nov. 7, 2016.

  Epilogue

  Looking Ahead

  The effect of the New Brunswick Court of Appeal ruling of October 2016 was to set the clock in the Oland matter back to early 2015. Only this time, there would be no preliminary inquiry—the appeal court had ordered a new trial. And the ruling appeared to have insulated much of the evidence whose admission was opposed by Oland’s defence prior to the first trial, which minimizes the likelihood of a lengthy voir dire process. The chief justice credited Justice Walsh with “a comprehensive review of the evidence and error-free instruction on the presumption of innocence, the requirement of proof beyond a reasonable doubt, [the jury’s] role as judges of the facts and the difference between impermissible speculation and permissible inference.”1 The NBCA also decided that Walsh’s rulings on the admissibility of evidence had been correct.2 Another view is that nothing is set in stone and that either side could still request special hearings on the admissibility of evidence.3

  In the case of murder prosecutions, “the accused is to be ‘automatically tried’ by judge and jury unless a special application is made by the defence to be tried by judge alone with the consent of the Attorney General.”4 In other words, if the defence requests trial by judge alone (which in light of the first trial, is an option that seems to have merit), the Crown would have to agree. This appears extremely unlikely in the Oland case.

  Another factor to consider, more than three years after the original charge was laid, is trial delay. In 2016, the SCC, by a margin of one justice, established a presumptive ceiling in order to prevent unreasonable delay in criminal prosecutions. This was a follow-up on earlier decisions designed to protect the Charter rights of accused persons in respect to being tried within a reasonable period of time. Under the Jordan decision, there is a presumption of unreasonable delay if a trial in the Court of Queen’s Bench (the arena where Oland will be tried) lasts more than thirty months. If a Crown attorney is unable to convince a court to extend the ceiling period (the Supreme Court provided criteria), then all charges against the accused are to be staid. The court was sending a message to provincial governments to appoint more judges and prosecutors, according to legal pundits. The latter argued that, given the more punitive approach of the Harper era, criminal law defendants were less likely to plead guilty and more inclined to go to trial. Prosecutors will probably be more forthcoming with disclosure in the post-Jordan era. One way to offset the effect of the ruling is for the defence to agree to a waiver.5

  A third consideration for a new trial is venue. According to the Criminal Code (section 599), a court, if requested by the defence or prosecutor, can order a trial to take place in another part of a province if “it appears expedient to the ends of justice” or if a jury cannot be summoned in the “territorial division” where the crime took place. The size of the community and adverse publicity are factors, but a change of venue is difficult to obtain because of the legal test required.6 As explained earlier in this book, Justice Walsh in 2015 was worried about finding a jury in the Saint John area, which led to the largest jury pool in Canadian history. If either side has concerns about venue for the next trial, for practical purposes there are only three likely places where a trial can be held: Miramichi, Fredericton, and Moncton. One often reads that suspects in criminal cases fear that advance publicity will jeopardize their right to a fair trial. But it seems likely that the defence would prefer taking its chances with a jury in Saint John, where the Oland family is better known, rather than elsewhere in New Brunswick.

  On December 5, 2016, media and a handful of court watchers were on hand early at the Saint John Law Courts for an anticipated appearance by Dennis Oland, who had been a free man for forty days. Reporters were to be disappointed as this was a day dedicated to pre-trial motions and Oland was not present. Although lawyers Miller and Teed were on hand, Jamie McConnell spoke on behalf of his client to Justice Hugh McLellan of the Court of Queen’s Bench. Representing the Crown, and assisted by Derek Weaver, was Bill Richards, who focuses on First Nations rights cases and other specialized prosecutions. No Olands or their supporters attended this day. The Crown was prepared to set dates for the new trial, but the judge, anticipating defence concerns, suggested an adjournment for a month. The reason was because the New Brunswick Court of Appeal’s written decision, which was being translated into French, had yet to be released. It was expected that the document would be ready by the end of the year, which meant that the Crown, if it pursued this option, could apply for leave to appeal in early 2017 to the Supreme Court of Canada. One likely start date for the new trial was January 2018, more than six years after the murder of Richard Oland. The Crown mentioned that it would seek a “Jordan waiver” from the defence.

  Revisiting the Issues

  As noted by Chief Justice Drapeau, a second trial could be considerably shorter than the 2015 contest. This would be especially the case if the two sides enter more agreed-upon statements of facts for the jury. But a jury would still need to be exposed to all the evidence and see documents, video clips, physical exhibits, and witnesses tested in cross-examination. It is likely that one or more members of the Crown team will be new. Whether the prosecution will introduce any new evidence or witnesses at this point is unknown. There were people interviewed by the police who did not testify at the 2015 trial, but the full list is not public knowledge. For example, Dennis and Lisa are rumoured to have had a tenant living in the apartment over the garage next to their home in Rothesay. If so, was this person at home the night Dennis arrived at 58 Gondola Point Road from the Renforth Wharf? Similarly, will the defence alter its strategy and tactics in the second trial? As revealed in late 2016, it has been examining new material relating to the investigation disclosed by the Crown. One possible addition for the defence would an expert witnesses on cellphones and cell towers (the defence was unsuccessful in convincing the NBCA that call detail records should have been inadmissible at trial).

  The most crucial question relating to a new trial is whether Dennis will testify in his defence. During the appeal, Gold stated: “This is not a credibility case.” It is reasonable to infer that the jury thought otherwise.7 Given that Dennis had no previous criminal record, the prosecution could not impugn his credibility as a witness on that ground. As discussed in a previous chapter, his decision to testify at the trial, many suggest, helped seal his fate in the minds of the jury. In contrast, Canadian media star Jian Ghomeshi elected not to testify in his 2016 trial for sexual assault against three women, and the Crown was unable to place him under cross-examination. In that case, where there was no jury, formidable defence lawyer Marie Henein exploited the inconsistences between the original police statements of the women and evidence of contradictory post-offence behaviour, including flirtatious emails with their alleged assailant. The latter evidence was introduced by the defence and blindsided the prosecution. The judge, apparently following the traditional view that one lie by a witness destroys their entire credibility, acquitted Ghomeshi, much to the anger of those who advocate against date rape and other forms of sexual violence.

  Evidence of inadequate police investigation normally helps the defence. As noted earlier, the Oland defence, in its appeal of the conviction, had no complaints about the trial judge’s instructions to the jury in this area despite all of the attention issues such as the back door at Richard Oland’s office, the ba
throom, and the number of officers at the scene had received in court and in the media. Gold and Miller, no doubt, will raise these issues again in the second trial, but they face the obvious challenge that the first jury, having weighed the factor of reasonable doubt, found the SJPF investigation more than adequate. In other words, the issues that were controversial for the defence, media, and much of the public turned out to have little evidentiary value.8 And the evidence contested by the defence, such as the nature of the father-son relationship, the reason for Dennis’s visit to his father, the son’s financial situation, the alleged lie about the jacket, the results of DNA testing, the dry cleaning of the garment, the location of the victim’s cellphone, and his computer usage, obviously carried weight with the jury.

  Circumstantial evidence can be helpful for establishing reasonable doubt in the minds of jurors. But the defence cannot call on a jury to speculate about another suspect without offering supporting evidence; in other words, an alternate hypothesis cannot be based on speculation. If a third party is identified as the possible offender, there has to be evidence linking that person to the crime.9 As explained earlier, the “other-guy” defence works if an alternate suspect is a suspicious character who had a reason to commit the crime being prosecuted. But there has to be “another guy” (or gal) and some evidence linking them to the offence. And the defence knows this. When defending Winnipeg Hells Angel Dale Sweeney in 2002 for attempted murder, Alan Gold accused the police of tunnel vision, and in his closing argument alleged that they may have planted evidence. The trial judge dismissed Gold’s most serious allegations but agreed that the evidence of the Crown’s chief witness, a biker who had been offered a deal, was “useless” and that the police had failed to consider other possible suspects. Sweeney was acquitted, a serious blow to the Winnipeg Police Service in its fight against organized crime.10

  On January 3, 2017, Dennis Oland, dressed casually and looking relaxed, attended motions day at the Saint John Law Courts. Presiding this day in the Court of Queen’s Bench was Justice William Grant. This time, neither Oland’s friends nor court watchers attended. The several reporters present sensed that something was up because prosecutor Bill Richards was accompanied by Kathryn Gregory, the lead Crown in the Oland appeal at the provincial court of appeal and at the Supreme Court of Canada. Gregory delivered surprising news: the Crown would be applying in the near future for leave to appeal to the Supreme Court. This could be a risky strategy as the defence could also apply for leave to appeal, and attempt to open up issues seemingly insulated by the New Brunswick Court of Appeal, such the constitutionality of the forensic testing of the Hugo Boss jacket that contained traces of the victim’s DNA.

  The odds of the SCC hearing an appeal of this case appear low. As with the bail question, the court has to see the issue or issues in any possible appeal as nationally important. This could be a difficult argument for either side to make. The Crown’s submission to the SCC claimed that the appeal court had erred in law in its ruling on Justice Walsh’s charge to the jury. Its brief alleged that “judicial treatment of post-offence conduct is undermining the justice system’s reliance on the jury.” The possible issue of national importance the Crown was raising was the confused law on jury instruction in the area of post-offence statements and conduct.11 The Crown, if given the chance to argue an appeal, was striving for a reversal of the NBCA ruling and the restoration of the original conviction. The SCC website confirms that an application for leave to appeal was filed on January 23, 2017. The defence has sixty days to respond and to file for leave to cross appeal. The Crown then has a thirty-day period to respond, which means that all documents pertaining to a possible appeal may not be in place until late April 2017. And if the Supreme Court does agree to hear the case, that process, based on the amount of time required for the court to schedule a hearing and produce a written decision, may not conclude until sometime in 2018. The Crown also wanted to set a date for a new trial; Gregory informed Justice Grant that the prosecution would be prepared to start as early as September 2018, which Miller viewed an unreasonable. The defence agreed to a Jordan waiver to give both sides more time. Grant concurred with Miller that there was no point in setting a trial date until the Supreme Court had made an initial decision on the appeal (which could be in the early summer).

  Nine days later, the New Brunswick Court of Appeal released its written judgment on the Oland matter. Chief Justice Drapeau, who prepared the decision, provided more detail on the court’s reasoning on why Dennis had not received a fair trial. He explained that the trial judge had instructed the jury that if Oland’s July 7, 2011, statement to the police about his blazer had been a lie, then the jury could “consider the lie, with all the other evidence in the case, in reaching a verdict of guilty.” The NBCA was concerned that “the jurors might well have found the appellant lied about the jacket he was wearing and, in the closing moments of deliberations, distilled from that bare finding the clinching element for their verdict.”12 The written decision contained a number of other interesting passages that hinted at the possible outcome of a second trial. Drapeau concluded that the original verdict was “neither unreasonable nor unsupported by the evidence” and agreed with the trial judge that Anthony Shaw’s evidence about what he heard on the night of the murder did not necessarily nullify the Crown’s theory of the crime. And most significantly, in light of the successful appeal, he was satisfied that the trial record contained “independent” evidence of concoction on the part of Dennis Oland, suggesting that a new trial judge could easily amend his or her charge to conform to the law.13 These remarks appeared to fly in the face of the statement of Gold during the appeal that the defence “always took the position that there was no case” for the prosecution. In the appeal, Gold had spoken of pulling out one or two “bricks,” meaning questionable evidence, from the wall and then watching the entire wall (the case) collapse. One possible reading of the appeal decision was that a new prosecution wall could be fairly solid.14

  The defence confirmed to the media on January 24, 2017, that it would apply for leave to cross appeal. Its best-case scenario would be the Supreme Court acquitting its client—a seemingly remote possibility.15 On January 5, Miller had indicated that the defence had sought further disclosure from the Crown in the summer and had received it—thousands of email messages—only recently. This, he warned, could lead to more delays as Oland deserved a properly prepared defence. The lawyer told reporters that his client, more than five years into his ordeal, “continues to show incredible strength.”16 If he loses his next trial (or if the SCC hears the appeal and decides that he received a fair trial in 2015), Oland faces a minimum of more than a year in maximum security before possibly being transferred to an institution such as Dorchester, where he would serve at least eight years before being eligible for parole. Based on the findings of his pre-sentence report of 2016 and the judge’s remarks at the sentencing hearing, Dennis would be a strong candidate for parole. He has no prior criminal record, appears to have no mental-health or substance-abuse problems, is not considered a threat to the public, and is a family man with strong community connections. But he also insists that he is innocent. In the past, an unwillingness to accept the guilty verdict of a court would be an impediment for parole applicants, but this is now less of a factor. Parole decisions focus on issues such as the inmate’s likelihood at community reintegration and the risk of reoffending. According to a spokesperson for the National Parole Board, “the fact that an inmate may continue to say or think that he or she is not guilty is another element amongst others that will be considered by voting board members.”17

  In late March of 2017, there was another surprise development in the Oland case. Many expected that the Supreme Court of Canada would not release its bail ruling until the summer or even the fall, but the court did so on March 23. Two issues were at stake: whether Dennis should have been released on bail by the New Brunswick Court of Appeal in early 2016, and how the criteri
on of “the public interest” should be applied in considering bail applications for individuals seeking appeals. The latter, which addressed a lack of clarity and uniformity surrounding Sections 679 (3) and 680 (1) of the Criminal Code, is why the court had decided to hear the appeal in the first place. The thirty-eight-page decision was written by Justice Michael Moldaver, formerly of the Ontario Court of Appeal (in his previous career Moldaver had been a partner of Alan Gold).

  In a decision that was supported by the other eight justices of the SCC, Moldaver ruled that Oland’s appeal “should be allowed.” In 2016, Justice Richard of the NBCA had found no danger of flight risk and no concerns about public safety. Furthermore, he had concurred that the grounds for the appeal of Oland’s conviction were “clearly arguable.” The SCC now explained that Richard had committed a legal error, as this criterion exceeded the threshold of an appeal being “not frivolous” (a requirement of the Criminal Code). In addition, the trial judge had stated that Dennis’s crime “gravitated more towards the offence of manslaughter,” which lessened its seriousness, yet Richard had failed to give this proper weight in his ruling. Moldaver ruled that “the appeal judge” (Justice Richard) had “erred in law by looking for grounds of appeal that would have virtually assured a new trial or an acquittal.” The SCC also decided that the three-justice panel that reviewed the initial denial of bail in 2016 had erred in law “by failing to intervene.”18

  The rest of the ruling addressed the broader legal issue: how the SCC could guide the lower courts on the issue of “the public interest” in bail applications by convicted criminals applying for appeals of convictions or sentences. Moldaver explained that the issue of “public confidence” in the justice system, which was part of the public interest, was not common in cases where persons applied for bail pending appeal. But it did apply from time to time, and judges in these situations warranted guidance from the nation’s top court. Moldaver wrote that “bail should not be more readily available for someone who has committed a crime than for someone who is awaiting trial and is presumed innocent.” But the ruling called upon judges in the lower courts to engage in “a more pointed assessment of the strength of the appeal” when reviewing bail, and promoted this as a general approach, not simply in the case of “murder or other serious offences.”19 The decision offered little guidance as to the meaning of public confidence in the justice system. Apparently it was not the same as public opinion, as one passage of the decision referred to “uninformed public opinion” surrounding the Oland case. Moldaver wrote that “Mr. Oland was entitled to the same treatment as someone less prominent.”20 According to Professor Nicole O’Byrne, the Oland decision would not “open the floodgates” to widespread bail release; courts would still have to weigh a number of factors in making their determination when bail application coincided with appeal bids.21