Dennis Oland's murder conviction overturned on 'contentious point of law,' Crown argues

The New Brunswick Court of Appeal overturned Dennis Oland's second-degree murder conviction "on a narrow and contentious point of law" and "in a manner incompatible with … the importance of jury decisions," Crown prosecutors argued in a bid to have the case reviewed by the Supreme Court of Canada.

"The justice system relies on the principle that 'the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense,'" prosecutors stated in their application seeking leave to appeal, filed on Monday.

But the function of juries is "being usurped" by appellate courts across the country, due to "judicial confusion" about how post-offence false statements should be handled, they contend.

Juries are held to be imbued with common sense and judicial instructions are meant only to guide the finders of fact through the relevant law.- Crown prosecutors

"This confusion in the area of post-offence conduct needs to be clarified by [the Supreme] Court to ensure that sound jury verdicts are not overturned in error on this basis as was done in the [Oland] case."

Oland's defence team expects to file a cross-appeal application to the country's highest court, seeking an acquittal instead of a retrial.

The Supreme Court is not obligated to hear the matter. It receives about 600 applications for leave to appeal each year. Only about 80 are granted — those it deems of national importance.

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A jury found Oland guilty of second-degree murder in December 2015 in the 2011 bludgeoning death of his father, multimillionaire Richard Oland, following a three-month trial in Saint John's Court of Queen's Bench. He was sentenced to life in prison with no chance of parole for at least 10 years.

But the New Brunswick Court of Appeal quashed the conviction on Oct. 24 and ordered a new trial, citing an error in 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. The jacket was subsequently dry cleaned but testing later revealed it had four small bloodstains on it and DNA matching his father's profile.

The Crown argued at trial that Oland's statement was a lie meant to mislead police but the defence said it was an innocent mistake.

The Court of Appeal ruled the trial judge failed to instruct the jurors that even if they found Oland's statement about the jacket was a lie, it had no "probative value" unless they had "independent" evidence that it was concocted to conceal his involvement in the murder.

Without proper instructions, jurors could have leapt from "bare lie to guilt," Chief Justice Ernest Drapeau explained in the written decision on behalf of the three-justice appeal panel.

Instructions 'flawless'

Prosecutors Cameron Gunn and Kathryn Gregory contend the trial judge's 204-page charge to the jury was "flawless."

They argue the appeal court's decision overlooks the portion of the trial judge's instructions where he told jurors: "You are also entitled to consider … whether Dennis Oland was genuinely mistaken or was attempting to mislead the police."

In addition, "juries are held to be imbued with common sense and judicial instructions are meant only to guide the finders of fact through the relevant law," they state.

The Oland jury sat through approximately 50 days of trial, "heard, and obviously rejected" his testimony that he was mistaken about which jacket he wore, prosecutors contend.

"The reversal of the jury's decision in the case of Dennis Oland is an unambiguous illustration of the problem and the need for the [Supreme] Court's intervention."

Deadline to appeal has passed

The deadline to file application for leave to appeal to the Supreme Court was on Dec. 23.​ But prosecutors and Oland's defence team filed a joint request on Dec. 16, seeking an extension until Jan. 20, or 10 days after the release of the appeal court's written decision — whichever came later.

The Supreme Court has not yet agreed to that extension.

Under the jointly requested extended timeline, however, Oland's defence team expects to file a cross-appeal application within 60 days, instead of the normal 30 days, and prosecutors plan to respond within 30 days, instead of the normal 10 days.

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.

His son, Dennis Oland, was the last known person to see him alive during a meeting at his office the night before.

Oland spent about 10 months in custody before being granted bail under conditions on Oct. 25, pending his new trial.

His extended family has maintained his innocence from the day of his arrest.