Dennis Oland defence tried to get judge-alone trial a year ago

Dennis Oland's defence lawyers tried for more than a year to have his second-degree murder retrial heard by a judge without a jury, newly released New Brunswick Court of Queen's Bench documents show.

They also initially sought to have the high-profile retrial moved from Saint John to another city, such as Moncton or Fredericton.

They argued Oland wouldn't be able to get a fair trial with a Saint John jury, given the "enormous amount" of publicity the case has garnered since his father's brutal killing more than seven years ago.

It is "very likely the most highly publicized criminal law case in New Brunswick's history," the lawyers said in documents filed during pre-trial proceedings, which were previously under a publication ban.

To support their bid for a judge-alone trial, the defence commissioned a public opinion poll, the court heard.

Twenty-seven per cent of respondents in the Saint John area said they believed Oland was guilty.

About 18 per cent of the 401 residents surveyed believed he was not guilty, and although it wasn't offered as an option, 55 per cent said they either didn't know or preferred not to say.

The polling evidence does not support any real difference in the jurisdictions,- Alan Gold, defence lawyer

Among those who indicated they "very much" would like to serve on Oland's jury, nearly 46 per cent believed he was guilty, according to a supplemental report on the survey.

About 18 per cent of that group believed he was not guilty, while about 36 per cent said they didn't know or preferred not to say.

Oland, 50, is being retried in the bludgeoning death of his father, Richard Oland. The body of the 69-year-old multimillionaire was discovered face down in a pool of blood in his Saint John office on the morning of July 7, 2011. He had suffered 45 blows to his head, neck and hands.

In December 2015, the jury at Dennis Oland's first trial found him guilty of second-degree murder, but the New Brunswick Court of Appeal overturned his conviction in October 2016, citing an error in the judge's instructions to the jury.

Retrial underway

The retrial started in Saint John's Court of Queen's Bench on Wednesday, with Justice Terrence Morrison presiding.

It was supposed to be a judge and jury trial, but Morrison declared a mistrial Tuesday and discharged the 16 jurors after learning a Saint John police officer conducted "improper" background checks on prospective jurors during last month's jury selection.

"I have determined that it's in the best interest of justice that a mistrial be declared thereby ensuring that any further trial of this matter will not be tainted," he told the jurors before sending them home.

Because the trial is proceeding by judge alone, the publication ban on pre-trial hearings held over the past year about various motions and the admissibility of evidence is now lifted.

Juries normally hear murder cases

The records show Oland's defence lawyers advised the court last fall that they intended to apply to have the retrial heard by a judge alone or, in the alternative, for a change of venue, to safeguard his Charter right to a fair trial before an impartial jury.

Normally, all homicide trials in Canada are heard by a judge and jury, as stipulated by the Criminal Code. An accused can request to be tried without a jury, but the attorney general must consent.

In July 2017 — as soon as the Supreme Court of Canada dismissed requests by both parties to review the Oland case — the defence asked lead Crown prosecutor P.J. Veniot to consent to a judge-alone trial. He refused "without explanation," they said.

Attorney general wouldn't explain

Over the next three months, the defence took the request to the assistant deputy attorney general, deputy attorney general and attorney general, citing the pre-trial publicity. None agreed and no reasons were given, the defence said.

The New Brunswick Public Prosecution Operational Manual states the Crown shall consent to a defence request for the trial of a murder charge by judge alone "unless there are exceptional circumstances," Oland's lawyers pointed out.

And when consent is withheld, the Crown is supposed to note the reason in the file.

"In the absence of reasons … the refusal decision has the appearance of being arbitrary, capricious, and/or based on some oblique or improper motive," the defence argued.

The Crown later said an incorrect version of policy revisions was published in error and the decision to refuse consent is prosecutorial discretion.

Cited books, TV coverage

Oland's lawyers wanted Morrison to overrule the Crown's refusal. They cited "thousands" of media reports, social media postings and reader comments, two national bestseller books, The Fifth Estate documentary The Richard Oland Case: Murder in the Family, and CBC's online publication of Dennis Oland's full videotaped statement to police on July 7, 2011, the day his father's body was discovered.

Much of the publicity "demonstrates bias" against Oland or "is otherwise prejudicial," his lawyers said.

Other reasons a judge-alone trial was preferable, they said, included the "onerous" jury selection procedures and the nature of the evidence, which involves "complicated and challenging legal and factual issues requiring disciplined consideration and reasoning … [that] would necessitate lengthy and complex jury instructions."

There is a strong societal interest in having an accused tried by a jury of his peers which reflects the values and concerns of the community where the offence occurred.-Terrence Morrison, Court of Queen's Bench

The defence sought permission to survey prospective jurors from Oland's 2015 trial who were not selected or jury panel members from other trials held in Saint John, Moncton and Fredericton this year.

"This would limit the poll to the type of persons who would respond to a jury duty summons" and "enhance the reliability" of conclusions," Oland's former defence lawyer Gary Miller explained in a letter to the judge.

It would also avoid polling people who were either ineligible for jury service or qualified for an exemption, he said.

Hired polling company

Morrison denied the application. He ruled contacting people who reported for jury duty at Oland's first trial would violate the Jury Act.

"In my view, jurors have a right to expect that they will not be identified, contacted or asked to participate in a poll simply because they have fulfilled their civic and statutory duty," Morrison wrote.

The defence instead had MQO Research conduct a telephone poll of jury-eligible residents of Saint John, Moncton and Fredericton.

The 24-question survey was "designed to measure familiarity with Dennis Oland and the criminal matter … to measure community sentiment regarding Dennis Oland, the presumption of innocence, willingness to serve on a jury, and other related variables," the survey report says.

It was designed with input from the Crown, the courtroom heard.

A total of 1,203 surveys were completed using landline and cellphone numbers between April 11 and May 19 — 401 people in each city, resulting in an overall margin of error of roughly plus or minus five per cent.

Based on the results, the defence abandoned its request for a change of venue.

Slight differences among cities

"The polling evidence does not support any real difference in the jurisdictions," lead defence lawyer Alan Gold told the court.

In fact, the percentage of people who said they believed Oland was guilty was slightly higher in both Moncton and Fredericton at 28 per cent each, compared with 27 per cent in Saint John, the survey report shows.

At a two-week hearing in June, the defence also presented the supplemental report that looked at the relationship between respondents wanting to serve on the Oland jury and the belief he is guilty.

About 45 per cent of respondents who said they "very much" wanted to serve believed Oland was guilty.

The defence suggested there was a significant risk of selecting a jury consisting of several persons with pre-existing opinions of guilt.

Trusts jurors to have open minds

The judge said he had difficulty with the defence's premise that those who demonstrated a willingness to serve on a jury were a better proxy for the subject jury population than the general population, and the defence proposition that almost half of those who would likely form the jury believe that Oland is guilty.

"The mere fact that any individual may wish to serve (or not to serve) on a jury is not determinative of jury service," said Morrison.

While he agreed there was a greater chance a willing person may not try to be excused, he disagreed a significant number would tailor their responses during the selection process to get a place on the jury.

Morrison said the three experts called to testify at the hearing — two for the defence and one for the Crown — all agreed  that how the data is presented is "determined by what 'story' one wants to tell."

"In short, the data … is subject to a great deal of interpretation. I therefore believe that I must exercise a great degree of caution."

The survey suggested a "meaningful segment" of the  Saint John population holds a preconceived opinion of guilt, he said, but 70 per cent of respondents said they could keep an open mind. 

Some areas not polled

The judge also expressed concerns about some elements of the polling. For example, a portion of the Saint John judicial district from which the jury panel would be drawn was inadvertently omitted from the survey.

"As a result, the sample is not truly a representative one," he said.

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Oland lives just outside Saint John in the town of Rothesay.

In addition, the survey did not screen for all jury ineligibility criteria, as set out in the provincial Jury Act. 

In the end, Morrison said, he wasn't convinced a fair and impartial jury could not be empanelled, and he dismissed the defence application.

Jury brings 'common sense' to trial

"A jury trial has long been recognized as a cornerstone of our democracy," he wrote in his 64-page decision.

"There is a strong societal interest in having an accused tried by a jury of his peers which reflects the values and concerns of the community where the offence occurred.

"The very strength of the jury lies in the determination of guilt or innocence by ordinary citizens who, although not legal experts, bring a healthy measure of common sense to the trial process."

Jury selection ended up going much faster than expected. Fourteen jurors and two alternates were chosen from among the first 250 or so people screened within three days.

About 5,000 people had been summonsed — more than 10 times the usual number in New Brunswick.