Dennis Oland seeks Supreme Court ruling on bail so it won't 'haunt' him at 2nd murder trial
3 provinces and lawyers' group intervene in potentially precedent-setting New Brunswick murder case
Dennis Oland's lawyers want the Supreme Court of Canada to rule the New Brunswick Court of Appeal's decision denying him bail last winter while he waited to appeal his second-degree murder conviction was "an error in law … so it cannot come back to haunt [them] on some unfortunate turn of events in the future."
Oland's conviction in the 2011 bludgeoning death of his father, multimillionaire Richard Oland, was overturned last week, but he is still facing a second trial.
Although Oland was also granted bail last week, pending his new trial, the question of when convicted murderers should be granted bail while awaiting appeal remains "ripe" for discussion, defence lawyer Alan Gold argued to the full nine-justice panel in Ottawa on Monday.
Gold made the comment in response to Chief Justice Beverley McLachlin, who questioned whether the hearing should proceed since it was technically a moot point for Oland.
The panel agreed to hear arguments, which lasted about three hours. It has reserved decision on the potentially precedent-setting case until a later date.
No one convicted of murder in New Brunswick has ever been granted bail before, and there have only been 34 such cases across Canada, according to the defence.
- Dennis Oland's new trial could be at least a year away
- Dennis Oland to travel to Ottawa for Supreme Court bail appeal
Gold argued bail should be within reach for appellants who have "arguable grounds," with a "potential prospect of success" — even those convicted of murder.
The New Brunswick Court of Appeal had described Oland's grounds for his conviction appeal in February as being "clearly arguable," but he was denied bail.
"That's our complaint, that's why we're here, that's why we're appealing," said Gold. That should have been sufficient for release, he said.
Oland spent 10 months in prison awaiting his conviction appeal, but Gold noted it can take up to three years for appeals to be heard in some provinces. Refusal of bail can result in a "serious and lengthy" incarceration," he stressed, as Oland and several of his supporters watched from the public gallery.
"This is Dennis's appeal, and he wants to be present to hear the discussion by the court and counsel on this very important point of law," Saint John-based family lawyer William Teed had said of Oland's decision to attend the proceedings.
'That's problematic'
Gregory argued on behalf of the New Brunswick attorney general there is a presumption of innocence with pre-trial bail, but post-conviction, that "is spent."
The public has an interest in whether someone convicted of murder is going to be released "simply because their appeal is 'not frivolous.' That's problematic," she said, noting murder is the most serious offence in the Criminal Code.
Unless the court denying bail makes an error in law or an error in principle, deference should be given to the initial bail decision, argued Gregory.
"Releasing an appellant convicted of murder when the best that can be said about their grounds of appeal is that they are weak, or that they are not doomed to fail, would undermine public confidence and respect for the administration of justice," said Alberta Crown prosecutor Christine Rideout.
Oland's lawyers and the Criminal Lawyers' Association of Ontario countered that the public's confidence can also be undermined when someone is unjustly detained.
The representative of the lawyers' group further argued that the public today is educated and understands mistakes in the administration of justice sometimes occur.
The Supreme Court does wish to decide areas of law that are difficult, that it's never decided, and that will only rarely come before them. [This is] one of these cases.- Alan Gold, defence lawyer
Oland's defence lawyers had applied to the Supreme Court in April, after the New Brunswick Court of Appeal twice refused to release him on bail pending his conviction appeal.
Justice J.C. Marc Richard had ruled in February a "reasonable member of the public would find that although the grounds of appeal may be clearly arguable, none fall in the category of the unique circumstances that would virtually assure a new trial or an acquittal."
"Should Mr. Oland be released in these circumstances the confidence of the public in the administration of justice would be undermined," he said — a decision upheld in April by a three-justice panel.
Under the Criminal Code, bail may be granted pending appeal if: the appeal is not frivolous; the convict will surrender into custody when the time comes; and the detention is not necessary in the public interest.
"The Supreme Court does wish to decide areas of law that are difficult, that it's never decided, and that will only rarely come before them," Gold, one of Oland's three defence lawyers, has said.
"[This is] one of these cases."
Oland, 48, was serving a life sentence with no chance of parole for at least 10 years, but the Court of Appeal overturned his second-degree murder conviction on Oct. 24 and ordered a new trial. He was granted bail the following day.
The three-justice appeal panel cited errors in the trial judge's instructions to the jurors regarding how they should deal with Oland's incorrect statement to police about what jacket he was wearing on the night police believe his father was killed.
Oland told police he was wearing a navy blazer, but video surveillance 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 body of Richard Oland, 69, was discovered lying face-down in a pool of blood in his investment firm office in Saint John 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 was found guilty by a jury on Dec. 19, 2015, following a three-month trial in Saint John's Court of Queen's Bench.
His wife Lisa, Andrik-Oland, mother, Connie Oland, and other family members, who have stood by him from the beginning, maintaining his innocence, accompanied him to the Supreme Court bail appeal hearing.
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