AN INNOCENT MAN SPENT A YEAR IN JAIL

 Dennis Oland was cheered and applauded by supporters as he walked out of the Saint John courtroom a free man on July 19^th   2019 after being found not guilty of second-degree murder in the 2011 bludgeoning death of his multi-millionaire father, Richard.

Oland, 51, was charged with the killing his father in 2013. He has waged a tireless legal battle ever since his arrest even after he was convicted by a jury in 2015 and spent close to a year in jail. That verdict was overturned on appeal in 2016 and the new trial ordered only this time it would be heard by a judge alone.

Justice Terrence Morrison of the New Brunswick Court of Queen's Bench delivered a summary of his decision stating that the Crown prosecutors failed to prove their case against Oland.

"More than suspicion is needed to convict someone of murder," the judge told the packed courtroom. "In short, I am not satisfied the Crown has proved beyond reasonable doubt that it was Dennis Oland who killed Richard Oland."

Judge Morrison also said, “I cannot accept outright the accused's denial of guilt." He said there was much more needed to implicate Oland in the crime, including blood stains containing his father's DNA on the accused’s jacket he was wearing the day of the killing.

I don’t know how blood got on the accused’s jacket but there can be innocent reasons why the blood was on the accused’s jacket.  Damming as that evidence can be, the presumption of innocence and proof beyond a reasonable doubt are high standards in law, that were not overcome by prosecutors in this trial.

Richard Oland was found face-down in a pool of his own blood on the morning of 7^th of July, 2011. He was 69 years old.Forensic evidence suggests he was killed the evening before by 45 sharp and blunt blows to the head, neck and limbs. He was still wearing his Rolex watch, but his mobile phone, as well as the murder weapon had boh disappeared.

A statement from New Brunswick's Public Prosecution Services said no decision has been made regarding a possible appeal. Prosecutors have 30 days to file an appeal, if they decide to do so.

Oland heard the verdict while standing next to his lead lawyer in the case, Alan Gold.  I met this man many years ago. He was a member of an organization in which I was its director.

Oland was calm and collected and hugged Gold when the verdict was read. He then hugged other members of his defence team and family members, especially his wife, Lisa, and his mother, Connie Oland's widow who unfailingly supported her son throughout the past eight years.

Oland's reaction to his acquittal was in stark contrast to his response after his first trial in 2015 when a jury found him guilty. At that time, he collapsed in the courtroom and sobbed uncontrollably into the robes of one of his defence lawyers.

This time when he walked out of the Saint John courthouse Friday, surrounded by loved ones, Oland was greeted like a hero. His supporters said it's time to celebrate, but some people thought of the victim in this saga—Richard Oland, who was a prominent New Brunswick businessman who was 69 at the time of his death.

"There may never be justice for Richard," said Saint John resident Mary Stillwell, who was in the crowd outside the court and described herself as an interested observer of the case. "But that's not the job of the defence, that's the job of the police, and we needed them to do it right eight years ago."

Oland family members left without speaking to reporters. At a news conference, Gold said Dennis Oland's immediate plans are to decompress from the pressures of the past eight years and spend time with his family.

He said Oland's legal trials have been "misery" for the entire family and that Dennis was a victim of police tunnel vision. He encouraged people in New Brunswick to accept the judge's ruling and believe that Dennis Oland is innocent of killing his father.

"I feel very bad that the Oland family and Dennis had to endure what was a very punishing eight years that was emotionally and financially, on all levels. And they had to endure it on the basis of what I think was initially a flawed investigation." He called on the Saint John police to "reinvigorate their investigation and find the real perpetrators of this terrible crime.

In a short statement, the Saint John Police Department said it would be inappropriate to comment as the decision will be reviewed by the Crown.

The family-owned business, Moosehead Breweries, is based in Saint John, and Richard Oland was a former vice-president until he lost out in a succession dispute and left to run his own enterprises. It was in one of those companies, the investment firm Far End Corp., that Oland was bludgeoned to death in his office  sometime during the night of July 6, 2011. His body was found by his assistant the next morning. He had been beaten to death with a weapon that was never found.  The police and prosecution theory was that during his third and final visit to the office, Dennis Oland used something like a drywall hammer with both a sharp edge and a blunt end to beat his father to death, striking 45 blows, mostly to his father’s head.

From the start, Dennis Oland insisted he had nothing to do with his father's death. But he was the only suspect for Saint John police from the day his father’s body was found.

According to the police and the Crown prosecutors, Dennis was the last known person to have seen his father alive. The trial heard he went up and down to his father's office three times in the space of about an hour on July 6, 2011, between 5:30 and 6:30 p.m. He said his father was fine when he left him after a pleasant chat about the genealogy of the Oland family.

"Absolutely ridiculous," Oland said when prosecutors accused him on the stand in March when Dennis said, "I'm not that kind of monster."

Judge Morrison said he found the testimony of a man who heard Richard Oland being killed credible. The man, Anthony Shaw, was working in the office below Oland's on the night of July 6, 2011, and heard thumping and banging coming from the floor above.

The judge said he accepted that was the sound of Oland being killed so the time of the noises was critical. Shaw told the court he believes it was around 7:30 or 7:45 p.m. That was the a time of the murder when Dennis Oland was nowhere near the crime scene and could not have been the killer.

In 1969, I was invited to head a task force of legislators, judges, law professors, lawyers, a former solicitor general and the chairman of the Ontario Law Reform Commission. We were to report to the Ontario government as to whether or not innocent persons sent to prison should be compensated. In my report, I stated that innocent persons who are imprisoned should be compensated.  Years later, this became the general practice all over Canada. In Ontario, a man who was jailed for six months for a crime he didn’t commit was awarded half a million dollars. A man in the Province f Saskatchewan who spent 24 years in prison for a murder he didn’t commit was awarded ten million dollars tax free. I believe that Dennis Oland will be awarded the cost of his defence and compensation for spending a year in jail.

Having studied the transcript of the trial, now I will give you some of my of my own thoughts about the evidence that was submitted by the Crown prosecutor during the trial. I should point out that I studied criminal law at the University of Toronto for two years, practiced law for fifteen years and represented clients in fifteen cities in Southern Ontario. Here are my thoughts re this case.

The analytical inquiry into the admissibility of proposed opinion submitted by a prosecutor’s evidence has two steps to be taken. The first step involves the threshold requirements of its admissibility. Those requirements that are presented as being logical, and relevance,—absence of an exclusionary rule  and the testimony of a properly qualified expert. Further, in the case of novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose must also be assessed at the first step of the analysis.

IIf the evidence meets the threshold requirements, the tryer  of the facts  must then go on to the second step and exercise what has been described as a judge’s discretionary “gatekeeper role” The judge must balance “the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.

The required balancing exercise has been described in various ways; such as relevance, reliability and necessity which are  “measured against the counterweights of the passing of time, prejudice and confusion. The “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission of evidence despite the potential harm to the trial process that may flow from the admission of the expert evidence.

 The first  criterion is whether the proffered evidence is logically relevant, in other words whether or not the evidence has a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without the evidence being submitted.  It is not an inherent characteristic of any item of evidence, rather instead, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks present to the court. 

It is not an inherent characteristic of any item of evidence, rather, it exists as a relation between a particular form of evidence and a proposition of fact that its proponent seeks to establish by its introduction as evidence.

Relevance is assessed in the context of the entire case and the positions of counsel. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact more probable than it would be otherwise. If it does,  fact is considered to relevant and admissible.

Even if the Fairvale Tower connection at 6:44 p.m. supports an inference that Richard Oland’s iPhone had left the office, there is no evidence that Richard Oland himself did not leave the office after his son left and return sometime before the homicide, all the while with the iPhone in his possession. This rational possibility iwas simply ignored by the Crown prosecutor because it is completely inconsistent with Dennis Oland’s guilt. The Crown must explain on what basis other than the assumption of Dennis Oland’s guilt. The prosecutor chose to ignore this obvious possibility.

Furthermore, there was no evidence of any conceivable reason for Dennis Oland to have taken the iPhone, and no evidence consistent with any theory of guilt for such a “possession”. And what ultimately became of the iPhone remains one of the biggest mysteries in this case, since it was “roaming” outside Canada a few days after the homicide. Absent other evidence dealing with these matters, the cell tower evidence only provides for speculation and not any reasonable, rational, and logical inference relevant to the Crown’s allegations.  It is possible that the real murderer took the iPhone from the victim’s desk.

Whether Richard Oland left his office or not for a time after his son left the office was up to the jury to decide in the context of the entirety of the circumstantial evidence. The Court did not accept the opinion of the prosecutor that a finding by the jury that Richard Oland never left his office for a time before he was killed because it would involve “speculation to bridge inferential gaps”. Actually, any finding that Richard Oland left his office for a time after 6:30 p.m. and then returned to his office might, if anything, had to be viewed as more speculative than inferential, or, if considered an available competing inference, a less cogent one. I will endeavour to explain.

 There was no evidence (at least none before the Court to date) that Richard Oland was seen outside his office or was heard from after 6:30 p.m. on July 6^th. More significantly, the expected evidence from Diana Sedlacek, Richard Oland’s mistress, is that this happened to be the very time of day of habitual daily contact between them. Except, that day around that time Richard Oland did not respond to Ms. Sedlacek’s phone calls (made to both his IPhone and his office phone). Nor did he respond to a text message, the text message having been sent by her to his IPhone at 6:44 p.m. inquiring of his whereabouts because he had not answered her phone call. The logical question arising is:  why did Richard Oland not respond to Ms. Sedlacek according to habit? It is obvious. He was dead.

It was that text message which is at the centre of the t voir dire. If the Crown could establish through admissible Call Detail Records (that the receipt of that text message on Richard Oland’s IPhone registered (“pinged”) on Rogers Communication “Fairvale cellular tower” located in Rothesay at 6:44 p.m., the Crown sought to give meaning to that record through Radio Frequency engineering evidence as to what that registration signifies in terms of the general location of the IPhone at that time. This evidence, if admissible and if accepted by the jury, would be logically relevant because it could tend to show that either  Richard Oland and his IPhone were somewhere within the coverage area of the cellular tower in Rothesay (but inexplicably not responding to Ms. Sedlacek) at the same that Dennis Oland would have been in Rothesay, or  that Richard Oland was not responding because he was not with his IPhone which was somewhere within the coverage area of the cellular tower in Rothesay (and which phone remains missing) when Dennis Oland was in Rothesay so shortly after leaving his father’s office.

If the jury were to draw the latter inference from the circumstantial evidence as a whole it could logically raise a question for them that can be rhetorically put—Is it a coincidence that Dennis Oland just happened to be in Rothesay at the same time his father’s now missing IPhone was somewhere in the Rothesay tower coverage area, so shortly after he (the last known person to see his father alive) left his father’s office or is that too much of a coincidence to be a coincidence? The only points being made here are that it does not appear to be a speculative consideration that Richard Oland never left his office after 6:30 p.m. and that evidence going to the general location of Richard Oland’s IPhone shortly after 6:30 p.m. on July 6^th, 2011 would be logically relevant; as would the location of Dennis Oland around the same time as derived from the general location of his ‘cellphone.  

The criterion of necessity can be understood as relating to the assistance the trier of fact would require in properly understanding and appreciating the evidence in question. The judge therefore agreed with the Crown’s argument that was submitted that the proposed expert opinion evidence in this case was necessary to assist the court in making its decision.

While most people these days own and use cellular phones on a regular basis, it cannot be said that the design and operation of the actual cellular communication network, the creation of propagation maps and the interpretation of CDRs in relation to those propagation maps is actually common knowledge.

 But, a different aspect of the concept of necessity had not been directly addressed, although it has been indirectly brought up by the Defence. It was the purpose of the proposed evidence of RF Engineer Peter Landers on behalf of Bell Mobility (the service carrier for Telus) pertaining to the likely location of Dennis Oland’s cell phone.

The question which has been raised in my mind is if, as the Defence suggested, that the evidence submitted only goes to confirm or corroborate where Dennis Oland admitted going to the area of Rothesay after leaving his father’s office. why the  was it necessary for that expert evidence to be called by the Crown at all, given that Dennis Oland’s own statement to that effect would be presented before the jury? Although logically relevant, was the prosecutor’s proposed expert evidence really necessary?

In summary, in my opinion, the judge was right when he said that the Crown prosecutor hadn’t convinced the judge that the prosecutor had a case to prosecute.