Dissension in Dennis Oland murder appeal would trigger Supreme Court review

If the New Brunswick Court of Appeal panel hearing Dennis Oland's murder conviction appeal is unable to reach a unanimous decision, the losing party has an automatic right to take the case to the Supreme Court of Canada.

Normally, the country's highest court must first agree to hear a case, known as leave to appeal.

The Supreme Court receives about 600 such applications each year. Only about 80 are granted — usually cases that involve a question of public importance.

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But there is an automatic right of appeal in criminal cases when one judge in the provincial court of appeal dissents on a question of law.

A three-member panel is handling Oland's appeal. Chief Justice Ernest Drapeau, Margaret Larlee and Kathleen Quigg hope to deliver their decision on Monday at 11 a.m. AT., Drapeau said on Thursday, following a three-day hearing.

Oland, 48, was found guilty on Dec. 19, 2015 of second-degree murder in the 2011 bludgeoning death of his father, Saint John multimillionaire Richard Oland.

The jury reached its verdict following a three-month trial in Saint John's Court of Queen's Bench and roughly 30 hours of deliberations over four days.

Oland's defence lawyers contend the verdict was "unreasonable" in the circumstantial case, that the trial judge made errors in his instructions to the jury and errors in allowing some pieces of evidence to be admitted, including Oland's blood-stained brown sports jacket.

They are seeking to have the Court of Appeal quash the conviction, and either acquit Oland or order a new trial.

On Thursday, Drapeau told the Fredericton courtroom the panel was "struggling" with the "difficult" issue of Oland's post-offence conduct.

Much of the three-day hearing focused on Oland's incorrect statement to Saint John police about what he was wearing when he visited his father at his Far End Corporation investment office on July 6, 2011, the night police believe the murder occurred.

Oland told police he was wearing a navy blazer, but video surveillance and witness testimony showed he was actually wearing a brown sports jacket, which was later found to have four small bloodstains on it and DNA matching his father's profile.

During the trial, the Crown portrayed Oland's false statement as "post-offence conduct;" a "lie" intended to mislead police.

The defence, however, maintains it was an "innocent mistake," as Oland testified, and there was no independent evidence to prove otherwise.

They contend the trial judge, Justice John Walsh, should have instructed the jury to ignore the "erroneous statement" because there was "no reasonable inference of guilt" unless the jurors fell into "circular reasoning" and "guilt was first assumed."

'Lynchpin' in Crown's case

Walsh cautioned the jury on the issue. "You must not use the evidence about what Dennis Oland said about the colour of the jacket in deciding or helping you decide that Dennis Oland committed the offence charged unless you reject any innocent explanation you may find for it," he said in his instructions.

Defence lawyer Alan Gold argued the issue wrongly left Oland vulnerable to being thought a liar by the jury and contributed to the guilty verdict.

He referred to Oland's statement about the jacket as being a "lynchpin" in the Crown's case. "The case may not have been as persuasive without it. There has to be a new trial," he said.

Crown prosecutor Kathryn Gregory, however, argued Walsh acted properly in letting the jurors sort out for themselves why Oland gave police wrong information.

If the judge did make a mistake, she said, "it was a harmless error."

Not 'critical aspect'

Gregory downplayed the significance of Oland's incorrect statement. It "was not a critical aspect of this case," she said. It was only one of several circumstantial issues for the jury to consider. "It related to the colour of his jacket, but it did not go to the ultimate question."

"The remainder of the evidence certainly supports the finding of guilt," she said, as Oland looked on from the prisoner's box at the back of the courtroom filled to capacity with supporters and reporters.

Drapeau wasn't convinced. "I have a hard time accepting that a lie about the jacket worn the day of the visit at Oland's office, and then the jacket is analyzed and DNA of Oland senior is found on that jacket – that, that is somehow an inconsequential piece of evidence," he said.

Oland's statement about the jacket is not a so-called "smoking gun" in the case, but it's "not peripheral" either, Drapeau remarked. "I would have tended to say it was significant on the scale of conviction. But that's me."

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment office. He had suffered 45 blunt and sharp-force injuries to his head, neck and hands.

His son, Dennis Oland, was the last known person to see him alive.

Oland is serving a life sentence with no chance of parole for at least 10 years.