Dennis Oland defence challenges conduct, credibility of forensics officer

The conduct and credibility of the head of the Saint John Police Force's forensic identification section came under fire Thursday at Dennis Oland's murder retrial.

Defence lawyer Michael Lacy challenged Sgt. Mark Smith's actions during the Richard Oland homicide investigation and his previous testimony.

He pointed out, for example, that Smith spent more time inspecting the accused's car for any possible evidence linking him to the death of his father than he did processing the bloody office where the victim's body was discovered on July 7, 2011.

Smith took about 14 hours over three days to conduct his extensive, "meticulous" examination of the Volkswagen Golf City and its contents, the courtroom heard.

He lifted the seats, swabbed for DNA, scrutinized the interior using special light sources, sprayed two different chemical reactants that would fluoresce in the possible presence of blood, and tested for trace or latent bloodstains — all with negative results.

In stark contrast, Lacy suggested Smith missed a possible bloody fingerprint or palm print on a piece of paper found on the victim's desk.

He showed the court a photograph Smith took of the desk and zoomed in on the area in question.

"Do you agree that it appears that it could be an impression of some sort that could potentially … be a fingerprint or a palm print or something that has to do with someone's unique characteristics from their hands?"

"It could be," replied Smith, unable to say with any certainty because none of the blood-spattered papers on the desk were ever seized or tested by police.

"This is just something that you didn't have in your mind, correct?" asked Lacy.

"Correct."

Oland, 50, is being retried for second-degree murder in the death of his father, who suffered 45 sharp- and blunt-force injuries.

Oland was the last known person to see the 69-year-old multimillionaire alive when he visited him at his investment firm office at 52 Canterbury St. on the evening of July 6, 2011.

A jury found the younger Oland guilty in December 2015, but the New Brunswick Court of Appeal overturned his conviction and ordered a new trial, citing an error in the trial judge's instructions to the jury.

He is being tried by judge alone in Saint John's Court of Queen's Bench.

The defence had previously advised Justice Terrence Morrison that the quality of the police investigation would be a major issue at the retrial.

In pre-trial documents, the defence said it intended to argue "that the [Saint John Police Force's] investigation into the homicide of Richard Oland was inadequate and will also seek to impugn the conduct and credibility of various SJPF officers involved in the investigation."

Lacy's searing cross-examination of Smith is scheduled to continue Friday at 9:30 a.m.

It began Wednesday, when Smith admitted he could have done more to protect the Richard Oland homicide scene from possible contamination and that he didn't follow all best practices in processing the crime scene.

On Thursday, Smith agreed with Lacy that police made a "fundamental error" by defining the crime scene too narrowly, limiting it to the victim's second-floor office instead of the entire three-storey building.

Lacy argued a significant error committed by Smith was failing to remove his protective shoe coverings every time he exited the bloody office. He displayed a photo taken on July 7, 2011, showing Smith on the street outside the building, wearing blue disposable booties.

Taking off dirty booties is "such a basic thing, I'm going to suggest to you, there's absolutely no excuse why you wouldn't have done that, do you agree?" asked Lacy.

"I guess so," replied Smith.

The court has heard several officers entered the crime scene without wearing any protective gear, including former deputy chief Glen McCloskey and some senior officers Smith allowed in under his supervision.

Smith previously testified he gave in to his superiors who "wished to view the body" before he had finished processing the scene. McCloskey told the court Smith had "invited" him in. Smith disputed that claim on Thursday.

He also said that when he caught then-inspector McCloskey in the office a second time with then-Const. Greg Oram, he didn't realize how deep into the scene they travelled or the extent of their movements.

Although the court has heard conflicting testimony from McCloskey and Oram about their actions, Smith said it was "very possible" important evidence could have been comprised by their wandering around and proximity to the body.

Lacy suggested if Smith had known about their actions he would have been "appalled."

"I am," replied Smith.

'Potential flight risk'

Lacy questioned Smith's previous testimony about the RCMP forensic lab limiting the number of exhibits Saint John police could send for testing, accepting only 5 items in the first batch.

He presented an email the lab strategist had sent to Smith on July 19, 2011. It indicated the lab was willing to take all of the items Smith initially wanted to send, but the results would take 40 days, not the 25-day turnaround Smith was seeking.

Saint John police had requested "priority status" because "the suspect," Oland, was not in custody and was considered "a potential flight risk," according to the email.

"I wanted to get your thoughts on how to possibly pare this submission down to the most essential items," the strategist wrote.

Lacy also challenged Smith's assertion that he didn't test an exit door located in the foyer outside the victim's office because it had already been opened by someone and therefore contaminated.

He pointed out the washroom in the foyer had been used by several officers for days before Smith tested it, but the risk of contamination didn't stop him from sending a swab of the sink to the lab.

"I don't wish to argue with you sir," said Smith. "I made a call on the 7th. It was wrong. I was just trying to explain to you my thought process."

A "judgment call that was fundamentally flawed?" persisted Lacy. Yes, Smith agreed.

The trial will not sit on Monday, as previously scheduled, because of a storm expected to hit the region on Sunday.

Tuesday will be weather-dependent, the judge said.

If the court doesn't sit on Tuesday, the rest of the week might be cancelled, the courtroom heard. Lacy and his fellow Toronto-based defence lawyer Alan Gold both have a Supreme Court of Canada appearance in Ottawa on Friday and have to leave Saint John by Thursday afternoon.

Gold suggested sitting for only a day and a half doesn't make much sense.

The Crown and defence might be able to make up any lost time by working on reaching some agreed statements of fact, he said. Some witnesses might not have to be called or their questioning might be shortened.

The retrial, which began Nov. 21, is scheduled to last four months. It could be late May or June before a verdict is delivered.

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