Dennis Oland's new trial could be at least a year away

It will likely be next fall before a new trial for Dennis Oland can be held, according to a Saint John court clerk. 

But depending on the next move made by the Crown or the defence, it could be even longer, according to Amanda Evans.

On Monday, the New Brunswick Court of Appeal overturned Dennis Oland's second-degree murder conviction in the 2011 bludgeoning death of his father, multimillionaire Richard Oland.

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The three-justice panel ordered a new trial, citing errors in the trial judge's instructions to the jury regarding Oland's incorrect statement to police about what jacket he was wearing on the night of the murder. Oland, 48, has been released on bail pending his new trial.

The Crown and defence have up to 60 days to seek leave to appeal to the Supreme Court of Canada, which would put the case on hold until the country's highest court decides whether it will hear the matter.

Prosecutors could ask the Supreme Court to reinstate the jury's guilty verdict, while the defence could request an acquittal instead of a retrial.

The Crown could also exercise its discretion not to pursue a second trial if prosecutors feel there is no reasonable prospect of a conviction.

"No final decisions have been made," Assistant Deputy Attorney General Luc LaBonté stated in an email.

If a new trial does proceed, the defence could request it be heard by judge alone, which would eliminate the time required for jury selection, but would require consent by the Crown. 

The defence could also seek a change of venue, which could reduce the size of the jury pool required if the trial is held in a location where fewer people have connections or familiarity with the case, thereby shortening the amount of time required for jury selection. But the court must agree.

Court of Appeal Chief Justice Ernest Drapeau said he expects a second trial would be "considerably shorter" than the first trial, which lasted about 50 days, "given the work done as well as the experience and knowledge acquired by the police, counsel and the judiciary, and bearing in mind this court's unqualified endorsement of the trial judge's evidential rulings that were contested on appeal."

There could also be agreed statements of fact between the parties, avoiding the need for some of the witnesses to testify.

Still, the Court of Queen's Bench would need to find a block of time that would fit the schedules of the prosecutors, Oland's three defence lawyers and the presiding judge.

No 'hard and fast' rules for 2nd trials

A recent Supreme Court of Canada decision sets out a "presumptive ceiling" of a 30-month delay between a charge being laid and a first trial being held, with the burden on the Crown to prove any further delay was a result of case complexity or unavoidable circumstances.

Earlier this month, an Edmonton judge stayed a first-degree murder charge against Lance Matthew Regan for the 2011 stabbing death of fellow inmate Mason Tex Montgrand at Edmonton Institution, one week before his trial was set to begin. Justice Stephen Hillier ruled Regan's constitutional right to be tried within a reasonable time had "been violated."

With the Oland matter, I'm not really certain how quickly they can get something of that size back before a court- Daniel Jardine, Miramichi lawyer

But there is no "hard and fast rule" for how quickly second trials should be held, said Miramichi lawyer Daniel Jardine, who represented fellow Miramichi lawyer George Martin on an obstruction of justice charge.

In June 2010, the Court of Appeal ordered a new trial for Martin, who sought leave to push the case to the Supreme Court, but was unsuccessful. A new trial was scheduled for October 2011, but due to various scheduling delays and health problems experienced by Martin, the new trial wasn't held until May 2013 — nearly three years after it was ordered.

"Under the best circumstances it's not easy to get a matter before the court quickly again," said Jardine.

"And particularly with the Oland matter, I'm not really certain how quickly they can get something of that size back before a court," he said.

Martin was found guilty by a jury in May 2013, but the Court of Appeal overturned his conviction again in July 2015, citing a miscarriage of justice over irregularities, which included one juror making phone calls during deliberations.

A third trial was scheduled for May 2016, but a stay of proceedings was ordered three months before it was set to begin due to the "inordinate delay" he faced, in violation of his Charter right to be tried within a reasonable time.

Retrials should be dealt with promptly said Jardine. "They would have to do everything they can to accommodate an accused on a new trial."

Change of venue 'not readily granted'

Veteran Saint John-area lawyer David Lutz, who has handled five or six retrials in his 30-plus year career, said they were all scheduled within three or four months.

"My expectation is everyone will do their best to rearrange their schedule to accommodate this case," he said.

Lutz expects the biggest problem will be selecting an unbiased jury. "That's going to be a big issue," he said.

Changes of venue are "not readily granted" because of the "substantially greater cost" of travel and accommodations for the prosecutors, police and witnesses, he said.

"But in this case, I would think it's something that the clerk would have to consider," said Lutz, suggesting people in places such as Miramichi or Bathurst might not be as familiar with the case.

Unless people have been living under a rock, everybody's heard about the Oland trial. You're not going to find anybody anywhere really who hasn't heard about it- Christopher Higgs, Toronto lawyer

Christopher Higgs, a Toronto lawyer who specializes in murder cases, said it's "difficult" to be granted a change of venue due to the so-called challenge for cause procedure, where parties can question whether prospective jurors are capable of setting aside their views and biases.

He isn't convinced it would be beneficial in this case. "Unless people have been living under a rock, everybody's heard about the Oland trial. You're not going to find anybody anywhere really who hasn't heard about it."

It's also "very difficult" to get a judge-alone murder trial, said Higgs. "The jurisprudence in Canada is very much in favour of jury trials, entrusting properly instructed juries to do the right thing."

"I'm a great believer in juries," he said, citing the division of labour and specialization of task. "Everybody has a job to do and they know what their job is."

Oland is scheduled to appear in Saint John's Court of Queen's Bench on Dec. 5 to possibly schedule a new trial date.

He is living in the community under several conditions. He surrendered his passport, must notify police of any travel outside the province, continue to live at his home in Rothesay and notify police of any change of address. His uncle Derek Oland, the executive chairman of Moosehead Breweries, also posted a $50,000 surety.

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.

A jury found him guilty of second-degree murder following a three-month trial in Saint John's Court of Queen's Bench.

Oland's family has stood by him from the beginning, maintaining his innocence.