Jurors should have to provide reasons for verdict, Toronto lawyer argues

A Toronto lawyer says the New Brunswick Court of Appeal's decision to overturn Dennis Oland's murder conviction because of an error in the trial judge's instructions to the jury illustrates a problem with the system that should be changed.

David Butt says there's no way of knowing if that error had any influence on the jury's decision to find Oland guilty of second-degree murder in the 2011 bludgeoning death of his father, multimillionaire Saint John businessman Richard Oland.

"We don't actually spend any time asking ourselves and finding out if the jury actually made a mistake in their reasoning process," said Butt, who has done research on jury comprehension. "We don't make any inquiry into what the jury did in the jury room.

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​"So really, despite the correctness or otherwise of the instructions, we're actually in the dark as to whether they reached the correct verdict."

Butt is calling for legislative changes that would see jurors reveal information about the reasons for their verdict; similar to the current requirement for judge-alone trials.

"I think it would be an important step forward," he said. "Once you have those reasons, then you can assess whether they thought the case through properly."

The appeal court's Oct. 24 decision to quash the Oland conviction and order a new trial centred on the trial judge's instructions to the jury regarding Oland's incorrect statement to police about what jacket he was wearing when he visited his father on the night he was killed.

Oland, 48, told police he was wearing a navy blazer, but video surveillance and witness testimony showed he was actually wearing a brown sports jacket, later found to have four small bloodstains on it and DNA matching his father's profile.

The Crown argued it was a lie meant to mislead police. The defence argued it was an innocent mistake.

"The jury must be told that it cannot rely on a deliberately false statement as a piece of circumstantial evidence on the Crown's side of the scales unless there is independent evidence that the statement was concocted," Court of Appeal Chief Justice Ernest Drapeau explained in the court's detailed written decision, released last week.

Without proper instructions, jurors could have leapt from "bare lie to guilt."

Drapeau, writing on behalf of the three-justice panel, noted the "'bare' lie may well have provided the argument that brought to the Crown's side one or more of the wavering jurors.'

Oland's circumstantial case is not one "where the evidence pointing to guilt is so overwhelming that the outcome would necessarily have been the same, with or without the [trial judge's] error," Drapeau said.

Therein lies Butt's criticism of the system.

Jury 'might' have been misled

A judge's instructions are meant to guide jurors on how they should apply the law to the evidence in a case.

When an appeal court finds errors in a trial judge's instructions, it says, "'We're going to have to do this all over again because the jury might have been misled by that error in the instructions'. It's always 'might.' Nobody ever asks whether they actually were," said Butt.

If they did make that mistake, fine, we need a new trial to be fair to everybody. But if they didn't make that mistake, there's no sense in putting the public to the expense of a brand new trial if no mistake was made at the first one.- David Butt, Toronto lawyer

"We may have a jury who completely misunderstood the instructions and frankly doesn't have the first idea whether they're applying them correctly," Butt said. "Or we may have a very intelligent and sophisticated jury who understands those instructions well and applies them perfectly.

"The difficulty is we never know in any given case because we never ask the jury, 'How did you reach your conclusion?' We simply ask for the conclusion itself."

As a result, appeal courts are left to err on the side of caution and order a new trial because a judge's flawed instructions might have led jurors to their verdict, said Butt.

"My thesis is, instead of guessing that they might have erred, why don't we have a process that asks a little bit more of the jury, that they reveal their thinking a little bit more?"

"If they did make that mistake, fine, we need a new trial to be fair to everybody. But if they didn't make that mistake, there's no sense in putting the public to the expense of a brand new trial if no mistake was made at the first one."

It is illegal for jurors to discuss how or why they reached a verdict — partly to protect those on trial, who are ultimately found not guilty, and partly to allow jurors to speak freely during deliberations without fear their discussions will later be subject to scrutiny and criticism.

"So as far as we know, they could be flipping a coin in there," Butt said. "They're of course told not to, but we never check to see what exactly they do."

'Makes perfect sense'

He contends jurors should be asked to provide, "briefly," their reasons for their verdict, possibly by filling out a form.

"When you sit with a judge alone without a jury, the judge is required to give reasons and we assess whether through those reasons the judge demonstrates that they understood the evidence properly," said Butt.

"It makes perfect sense that you'd ask the same thing of a jury who's doing the exact same task of deciding an important criminal case."

Earlier this month, prosecutors announced they plan to ask the Supreme Court of Canada to review the Appeal Court's decision to quash Oland's conviction and order a new trial, while the defence expects to file a cross-appeal, seeking an acquittal instead of a retrial.

A date for Oland's new trial will not be set until the country's highest court decides whether it will hear the appeal.

If a new trial proceeds, it is not expected to be heard until 2018, officials have said.

Oland, 48, who has two daughters, a son and a stepson, is free on bail, living in Rothesay under conditions, pending his new trial.

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment firm office on July 7, 2011. He had suffered 45 blows to his head, neck and hands. No weapon was ever found.

Dennis Oland was the last known person to see his father alive during a meeting at his office the night before.

The jury reached its guilty verdict on Dec. 19, 2015, following a three-month trial and deliberations that lasted about 30 hours over four days.