Dennis Oland's lawyers tried to get bloodstained jacket tossed as murder trial evidence

Dennis Oland's defence lawyers cited charter violations in attempting to have his bloodstained jacket deemed inadmissible as evidence just four months before the start of his second-degree murder trial in Saint John, court documents reveal.

Oland's three-member defence team also tried unsuccessfully to stop police from conducting additional DNA tests on the brown sports jacket, according to the Court of Queen's Bench documents, which were under a publication ban until the jury began deliberations Wednesday.

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​The Hugo Boss jacket is key evidence in the Crown's case against Oland, who was charged with second-degree murder in the 2011 bludgeoning death of his father, prominent New Brunswick businessman Richard Oland.

The Crown had argued before Court of Queen's Bench Justice John Walsh that exclusion of the jacket from the trial would "gut" its case, according to the documents.

Jurors will resume deliberations at the Saint John Law Courts building on Saturday at 9 a.m. AT. They adjourned Friday shortly before 8:30 p.m., unable to reach a unanimous verdict. They have spent a total of about 28 hours discussing the case since Wednesday.

Oland's jacket had three small bloodstains — on the right sleeve, the upper left chest and on the back — and the DNA extracted from those areas matched his father's DNA profile, the trial heard. The chances of it not being the victim's DNA were one in 20 quintillion, a Crown DNA expert testified.

The jacket, which cost more than $800 US and was part of a larger purchase at Hugo Boss, was seized from Oland's bedroom closet after a busload of Saint John police officers executed a general search warrant at his Rothesay, N.B., home on July 14, 2011. This was a week after his father's body was discovered lying face down in a pool of blood in his investment firm office.

The 69-year-old multimillionaire had suffered 45 sharp and blunt force injuries to his head, neck and hands. No weapon was ever found.

Protection from unreasonable search, seizure

Oland's defence lawyers filed an application with the Court of Queen's Bench, alleging the accused's charter right to be secure against unreasonable search or seizure was violated, and seeking exclusion of the evidence obtained.

The application was heard by Walsh in May during a pretrial voir dire — a hearing to determine admissibility of evidence.​

Walsh described the defence's charter application as "extremely serious" and "comprehensive" in his 95-page ruling June 10.

The defence had argued:

• There was insufficient information to establish the necessary reasonable grounds for the warrant to have been authorized by a provincial court judge on July 13, 2011.
• There were material errors and omissions in the information to obtain (ITO) submitted to the judge, which, if corrected and included, would have negated any reasonable grounds.
• The warrant and post-execution detention orders for the items seized prohibited police from conducting any DNA analysis on the brown sports jacket, without obtaining additional judicial authorization.

Crown prosecutors countered that the warrant gave police the inherent authority to conduct the forensic examinations and analysis that they did on the seized jacket, and that the post-execution detention orders did not prohibit that testing.

If the court were to find that obtaining the evidence violated the accused's right to be secure against unlawful search and seizure, the Crown said, "the court need be aware that any exclusion of the brown sports jacket from the trial would 'gut' its case," the documents state.

In his ruling, Walsh stressed the issue before him was not whether the court would still have issued the warrant, but whether the authorizing provincial court judge could have done so in the eyes of the law, based on the information he had at the time.

Walsh ultimately deemed the house search warrant as valid, and that there was lawful authority for forensic examination of the brown jacket, as well as other items seized under the house warrant.

Navy blazer a mistake, or attempt to mislead?

Walsh found "of all the information provided in the ITO, probably the most persuasive to the authorizing judge, taken in the entire context of the ITO, is Oland's answer to the police question of what he had been wearing when at his father's office" on July 6, 2011.

Oland told police during a voluntary statement on July 7, 2011, that he was wearing a navy blazer on the night in question, but security video of him and witness testimony showed he was wearing a brown jacket.

"That appearing unqualified answer given by Dennis Oland in isolation might be thought a simple mistake," wrote Walsh.

"However, that answer taken in context of the evidence that [Oland] was the last known person to see his father alive, taken with the evidence of his father's [missing] iPhone being in Rothesay most probably at the same time he was, mere minutes after he left his father's office, and taken with the crime scene evidence that the attacker or attackers would most probably have been blood-splattered, speaks to another logical inference that could be drawn — that Dennis Oland was lying, that he was attempting to mislead the investigators for a patently obvious reason."

There was also "credible evidence" that Oland changed his clothes when he got home that night, and he was placed under constant surveillance right after he gave police his statement, and didn't dispose of anything while away from his home, said Walsh.

"There was sufficiently reliable evidence upon which the authorizing judge could find reasonable grounds to believe that Dennis Oland killed his father ... that he was wearing a brown sports jacket at the time of the killing, that the jacket would afford evidence with respect to the commission of that offence and that the jacket was then in or on Dennis Oland's identified residential property."

Errors, omissions in ITO

Walsh agreed with the defence that there were errors and omissions in the police ITO. For example, what Oland told police he was wearing when he visited his father likely "would have had significant influence on the authorizing judge in the overall context of the information provided in the ITO."

But the ITO failed to mention that police told Oland they would be reviewing security video before they asked him what he had been wearing — so he knew they could verify whatever he told them, noted Walsh.

"Whether the addition of this evidence would have [as the defence argued] 'considerably diminished the plausibility of any inference of intentional falsehood' from Dennis Oland's answer is debatable.… It certainly would have had some influence."

As the Crown pointed out, however, Oland's answer was unequivocal — he gave an accurate detailed description of his shirt, and was only being asked to recall what he wore the evening before, said Walsh.

"That additional evidence itself … would not necessarily have prevented the authorizing judge from reasonably inferring, in the context of all the other evidence, that Dennis Oland was trying to intentionally direct the police away from the actual jacket he was wearing while at his father's office because of fear of what would be found on it."

Walsh dismissed the defence's argument that the detention order granted by the provincial court judge for the jacket and other items seized from Oland's home, and the subsequent extension orders, only allowed Saint John police to retain the items in their custody and prevented any items from being sent off site for forensic examination.

Newer DNA tests more 'discriminating'

Walsh also rejected a bid by the defence to block an application by the Crown in March to have two DNA extracts derived from the jacket, which had been entered into evidence at the preliminary inquiry, released for followup testing.

The Crown wanted to have the two extracts retested using the RCMP forensic lab's newer, more "discriminating" DNA typing system than the one used when the preliminary inquiry began, on May 12, 2014, according to the documents. The new system looked at the alleles (variant forms of a gene) in 15 locations instead of the nine used previously.

Walsh felt the Crown made a "compelling case" that there was an "air of reality" that retesting had a "meaningful capacity to advance" the interests of justice.

The defence asked the judge to exercise his discretion and delay any release, pending a decision on its charter rights application, slated to be heard in May, regarding the seizure of the brown jacket, from which the DNA samples were extracted.

If the judge ultimately ruled the jacket would be excluded as evidence, the DNA retesting "would only serve to produce more evidence to be excluded, as well as magnify the violation of the respondent's charter right," the defence argued.

"Moreover, there is no evidence of urgency due to wait test periods or risk that the DNA extracts could degrade."

But Walsh said in his April 7 ruling that it was not a simple matter of delaying a month for the charter voir dire to be heard.

"Given the inherent time demands, there is a real risk of the trial being delayed either in starting or during its hearing, depending on when the Section 605 order was made, when the retesting is completed and, of course, depending on the results," he said.