Police board seeks review of officer conduct during Oland jury selection

The Saint John Board of Police Commissioners will ask for an independent investigation of an officer's actions during jury selection for Dennis Oland's murder retrial that resulted in a mistrial being declared Tuesday morning.

Const. Sean Rocca conducted background checks on prospective jurors using the force's internal database, which Court of Queen's Bench Justice Terrence Morrison said "irreparably" tainted the jury selection process.

Morrison discharged the 16 jurors before any evidence was heard, and the trial will now proceed without a jury, starting Wednesday at 9:30 a.m. AT.

To kind of find this island of ignorance here was a little shocking and surprising.- Alan Gold, defence lawyer

"The board and the chief take these matters very seriously," the Saint John board said in a statement issued late Tuesday afternoon.

"We will be reviewing the court's decision to understand the issues identified and to learn from them."

The board said it will ask the New Brunswick Police Commission to conduct the independent investigation.  

Oland, 50, is being retried for second-degree murder in the death of his father, multimillionaire Richard Oland, more than seven years ago.

His defence team contends the Supreme Court of Canada made it clear in 2012 that the privacy of jurors prohibited police from using internal databases to search for any contact they may have had with police.

"These were really landmark decisions and everyone talked about them and understood them. So to kind of find this island of ignorance here was a little shocking and surprising." lead defence lawyer Alan Gold said after court as Oland, his wife Lisa and mother Connie looked on.

"When the courts talk, the police have to listen — just like all of us have to listen to what the courts say."

The defence was particularly "gobsmacked" to discover Rocca used the same search practices during Oland's first trial in 2015, said Gold.

Rocca, a 16-year veteran of the force, has been the file co-ordinator on the Oland case since October 2011.

Oland's lawyers are calling on the provincial policing oversight body to resume its investigation into the Saint John force's handling of the case now that a mistrial has been declared on the jury trial and there's no risk of tainting the jurors.

"The serious conduct that led to our jury selection being invalidated, and the jury trial having to be nullified, can now be added to the list of what needs to be examined in the interests of justice, not just to Dennis and his family, but also to restore public confidence in the administration of justice," said Gold.

In 2015, the provincial commission launched a review of the homicide investigation after several issues came to light during Oland's first trial, which ended in a jury finding him guilty.

The court heard evidence of officers entering the crime scene without wearing protective gear to avoid contamination and using the washroom located in the foyer outside the victim's office for two days before it was tested for evidence. A key piece of the Crown's evidence against Oland — a blood-spotted brown sports jacket — was kept rolled up in a paper bag for months before forensic testing.

In October 2016, when the New Brunswick Court of Appeal overturned Oland's conviction and ordered a new trial, citing errors in the trial judge's instructions to the jury, the commission suspended its review "until such time as all criminal proceedings are completed."

Executive director Steve Roberge told CBC News on Tuesday that decision stands.

"We do not want to prejudice the criminal proceedings with our Police Act investigation," he said.

Asked how that could be a concern now that the trial is proceeding by judge alone, Roberge replied: "In this case it's not necessarily the fact that we're prejudicing the proceedings themselves, it's also prejudicing the perception of the carriage of justice."

Pressed on whether not proceeding with the investigation could have the same effect, he replied, "We don't know who and what kind of material we need to follow up with until the end of the criminal processes."

The Saint John police board declined further comment, citing the continuing court case.

Chief Bruce Connell did not provide any comments or respond to questions about Rocca's current status.

The body of Richard Oland, 69, was discovered face down in a pool of blood in his investment firm office the morning of July 7, 2011. He had suffered 45 sharp- and blunt-force blows to his head, neck and hands.

His son was the last known person to see him alive when they met there the night before.

Oland has maintained his innocence from the beginning and his extended family has stood by him.

"All Dennis and his family want is a fair trial as soon as possible, without further delay, a trial at which they are confident of Dennis finally being vindicated and his innocence declared," said Gold, adding the Olands are "extremely pleased"  Morrison agreed to proceed with a judge-alone trial.

Gold said starting jury selection over with a brand new jury panel could have bumped the trial back several months, raising the possibility of an unconstitutional delay.

The Supreme Court has set a time limit for superior court cases of 30 months, from the time a charge is laid to the conclusion of a first trial. The limit for retrials is still "a little grey," but should be completed even sooner, said Gold.