Dennis Oland bail decision could be precedent-setting in New Brunswick

Dennis Oland will have to wait until next week to learn whether he'll get bail pending an appeal of his conviction for the second-degree murder of his father, wealthy New Brunswick businessman Richard Oland.

A bail hearing was held in New Brunswick's Court of Appeal in Fredericton on Friday, just one day after Oland, 47, was sentenced to life in prison with no chance of parole for 10 years in the 2011 killing.

But after hearing arguments from both the defence and the Crown on whether Oland should be released, Justice Marc Richard announced he would reserve his decision on the potentially precedent-setting case until Wednesday at 2 p.m. AT.

"I wish this was a case I could decide today. I know there's a lot of interest in it," Richard said, adding he has a lot to consider.

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If Oland were to be released, it would be the first time in New Brunswick history a convicted murderer is granted bail, according to Nicole O'Byrne, an associate law professor at the University of New Brunswick.

The Crown says they found only 21 such cases across Canada.

This is not a normal, everyday occurrence.- Nicole O'Byrne, associate law professor

"This is not a normal, everyday occurrence," O'Byrne said. "So the exceptional circumstances part of the test is the key determining factor here. So Justice Richard has to figure out if this case fits within that exceptional circumstances category."

Oland, who was sitting in the prisoner's box in a brown suit jacket and shackles, flanked by sheriff's deputies, showed little reaction to the adjournment, which will see him spend his 48th birthday on Sunday behind bars.

However, his wife, Lisa Andrik-Oland, mother Connie Oland and about a dozen other family members and friends who filled the small courtroom to near capacity were visibly disappointed. None of them offered any comments following the proceedings.

Richard Oland's body was discovered lying face down in a large pool of blood in his Saint John investment firm office on July 7, 2011. The multimillionaire had suffered 45 sharp and blunt force injuries to his head, neck and hands.

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

Oland was found guilty by a jury in Court of Queen's Bench in Saint John on Dec. 19, following 30 hours of deliberations over four days.

Oland's lawyers contend his conviction was an "unreasonable verdict," and that Justice John Walsh erred in his instructions to the jury and in determining the admissibility of some evidence. They are seeking to have the conviction quashed, and either an acquittal entered or a new trial ordered.

Appeal date before October unlikely

A date for the appeal hasn't yet been set. The court heard Friday the appeal probably won't be heard until at least October because a transcript of the three-month trial has to be prepared first.

Defence lawyer Alan Gold, who presented on behalf of the three-member defence team at the bail hearing, argued Oland should be freed until then.

He called it a "convoluted case" with serious grounds for appeal and suggested any informed and reasonable member of society, who knows the circumstances, would understand why Oland was released.

The public's confidence in the administration of justice is "fostered" when bail is granted "where appropriate, when legal requirements are met," he said.

Gold also stressed Oland's "positive character" and the "considerable support" he has among family, friends and others in the community.

He also referred to Oland's case as being on the "lower end" of the murder spectrum, closer to manslaughter.

The defence filed a significant amount of material in writing for the judge's consideration, but Richard asked Gold to highlight what he felt were the strongest points.

Gold referred to the noises Anthony Shaw heard coming from Richard Oland's office on July 6, 2011, around 7:30 p.m. Gold argued the noise must have been the sounds of Oland being killed and the trial saw a timestamped security video that shows Dennis Oland shopping in Rothesay — about a 20-minute drive away.

He suggested the trial judge erred in his instructions to the jury by referring to Shaw's testimony as being "inconsistent" with the fact that Richard Oland had stopped responding to all calls and texts about 45 minutes earlier.

Gold called that a "logical fallacy" because no one knows why the victim stopped responding at that time. The defence had also presented evidence suggesting that Richard Oland had developed a pattern of not responding to calls and texts right away.

The admissibility of Dennis Oland's brown sports jacket is also a "crucial" legal issue, he said.

Oland told police he was wearing a navy blazer when he visited his father on the night in question, but video surveillance showed he was wearing a brown jacket. A brown jacket seized from his bedroom closet a week later was found to have three small bloodstains on it and DNA that matched the victim's profile.

Gold contends the search warrant Saint John police obtained to seize the jacket did not authorize them to test it forensically.

Public confidence in justice system key

Crown prosecutor Kathryn Gregory argued most convicted murderers file appeals. Very few, however, are granted bail pending appeal, and only in "exceptional circumstances." 

Of the 21 cases cited, seven of them, for example, involved ministerial reviews, two involved "fresh evidence" and another two, "possible consent."

The question is, what is it about this case and the grounds that have been raised … that suggests something unusual?- Kathryn Gregory, Crown prosecutor

"So the question is, what is it about this case and the grounds that have been raised … that suggests something unusual?"

Gregory suggested all of the issues raised Friday by the defence were already argued — and determined — by the trial judge.

The judge did not comment on whether Oland's case is exceptional. He did comment, however, that it's not a typical case, pointing out that it took more than two years before police laid charges and that it was "pretty much purely circumstantial."

"Actually, I think it is 100 per cent circumstantial," he added.

Gregory suggested the strongest argument could be the estimated eight-month delay before Oland's appeal could be heard; whether that would make his case "exceptional."

She said there has never been a decision where delay has been the sole basis for release, but acknowledged "it's a factor."

Crown would seek $400K in sureties

The Crown is not concerned about public safety in this case, but she did express concern about the public's respect and confidence in the justice system if Oland were to be released.

She stressed a jury of 12 people who sat through the lengthy trial, saw and heard all of the evidence, delivered a unanimous verdict of guilty.

If Oland is ultimately granted bail, the Crown will be seeking $400,000 in sureties — half from his mother, Connie Oland, and half from his uncle, Derek Oland, the executive chairman of Moosehead Breweries Limited.

The Crown would also want him to be placed under the same conditions he was under when he was granted bail while awaiting his trial, said Gregory.

Those included surrendering his passport, advising police of any travel outside New Brunswick, maintaining his residence in Rothesay and advising police of any change of address.

There are varying opinions on Oland's chances of getting bail.

Christopher Hicks, a Toronto lawyer who specializes in murder cases and isn't connected to the Oland case, has said Oland is "virtually assured" of being released pending the appeal.

"Someone who's been convicted even of a very serious crime — the most serious crime of the Criminal Code — who has good grounds of appeal, should not remain in custody while his appeal is heard … That's the law from the Supreme Court of Canada," Hicks said.

But O'Byrne contends it's a "tricky question."

"The key issue is whether Oland could establish a meritorious appeal to overcome the presumption that the release of a convicted murderer would destroy the public's confidence in the administration of justice," she has said.

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