Dennis Oland's defence misunderstood cellphone evidence at first trial, retrial hears

Dennis Oland's defence team misunderstood some of the cellphone-related evidence at his first trial in 2015, his murder retrial in the 2011 bludgeoning death of his father heard on Thursday.

"​We now understand 'roaming error' correctly," lead defence lawyer Alan Gold told the Saint John Court of Queen's Bench.

"We were misinformed at the first trial."

The term "roaming error" is related to attempts by the Rogers Communications law enforcement support unit to locate the victim's iPhone, which went missing the day he was killed and has never been recovered.

When a cellphone is on, it emits periodic signals to communicate with the network so that when calls are made and received, the network has a general idea of the phone's location for service delivery.

Rogers, at the request of police, can initiate a signal, known as a "forced registration," to try to obtain the GPS co-ordinates of a particular cellphone.

The communications company tried to "ping" the victim's iPhone at the request of the Saint John Police Force, but got a "roaming error" message, Sylvie Gill, an investigator with the specialized unit testified.

Positions reversed

When that search was performed was the focus of much of the testimony Thursday and it appears the Crown and defence have reversed positions from the first trial.

The defence now contends it was on July 7, 2011, the day the victim's body was discovered, while the Crown now says it was on July 9, 2011.

The relevance of the issue in the case against Oland has not yet been made clear, but Crown prosecutor Derek Weaver did tell Justice Terrence Morrison that a "missing piece of the puzzle" is an agreed-to definition of "roaming error."

"And through that, whether … the roaming error was on July 7, 2011 or July 9, 2011 does play a factor in this."

Gold also revealed the defence has been meeting with an engineer in Montreal, "who may well be a witness."

The parties are expected to square off on the issue again when the retrial resumes on Friday, after an unusual application by the defence was set over to give the Crown an opportunity to consider its position.

The defence is seeking to have an officer's testimony about what he says a Rogers employee told him over the phone regarding the roaming error — normally considered hearsay evidence — accepted as fact.

Oland, 50, is being retried for second-degree murder after the Court of Appeal overturned his 2015 conviction and ordered a new trial, citing an error in the trial judge's instructions to the jury.

He is the last person known to have seen his father alive when he visited him at his office on July 6, 2011, between around 5:35 p.m. and 6:30 p.m.

The body of the 69-year-old multimillionaire was found in the office the next morning, face down in a pool of blood. He had suffered 45 sharp- and blunt-force injuries to his head, neck and hands.

His iPhone was the only item missing from the crime scene, the Crown has said, while other valuable items, such as his Rolex watch, cash and electronic equipment were left untouched.

Earlier in the trial, Acting Insp. David Brooker of the major crime unit testified that on July 7, 2011, at 4:30 p.m., just hours after the victim's body was discovered, he called Rogers Communications about trying to locate the iPhone.

Brooker said he was told Rogers could not locate the cellphone, although he couldn't recall the technical term used by the employee he spoke to. 

During cross-examination, Gold suggested it was "roaming error." Brooker agreed.

"And you got that information on July 7?" Gold had asked. 

"Yes," the officer replied.

Defence objects to its own former exhibit

The Crown contends Brooker is mistaken about the date; that Rogers actually performed the forced registration two days later.

On Thursday, while questioning Gill, Crown prosecutor Derek Weaver tried to enter into evidence a document that indicated Rogers performed three pings on July 9, 2011 and they all came back as roaming errors.

Interestingly, the document had been a defence exhibit at Oland's first trial, when, as Weaver put it, the defence had "vehemently" argued the roaming errors occurred on July 9.

Gold objected to any reference to the first trial and objected to the document being submitted. He argued it was not an official Rogers report, but rather a "cut and paste" from an email Gill was not a party to and therefore could not authenticate.

But there is no official report on the contentious issue, the courtroom heard. Rogers only keeps logs of any such searches for up to two years.

"Our concern, obviously, is this court will be left with the impression that there may have been a roaming error on July 7," said Weaver.

The judge sided with the defence and refused to accept the document, but did say the Crown can try to submit it later, through another witness.

The missing iPhone had been functioning on July 6, 2011, Rogers' call detail records for the victim showed. The admissibility of those records had been challenged by the defence during a pre-trial hearing, but the judge had ruled them admissible.

Gill went over the spreadsheet line by line, showing the dates and times of all the calls and text messages, the incoming and outgoing numbers, the duration of the calls and voicemail messages, and which cell towers the phone connected with.

The phone connected with a cell tower in Rothesay in the morning, when the victim was at home, and then switched to a cell tower in uptown Saint John near his office while he was at work, according to the records.

At 6:44 p.m., Gill said the phone switched back to a cell tower in Rothesay, located near the Renforth wharf where the accused had told police he stopped on his way home from visiting his father that night.

All incoming calls after that time went directly to voicemail, said Gill, and text messages were "not delivered to the device."

Earlier in the day, the court heard the iPhone had been connected to the victim's computer during the afternoon and a backup was created.

Payman Hakimian, a computer forensics expert with the RCMP's technological crimes unit in Fredericton, testified the phone was connected at 1:50 p.m., backed up by 4:41 p.m. and disconnected at 4:44 p.m.

Saint John police were scouring the backup data for any evidence related to the homicide as recently as a few months ago, the retrial heard. Hakimian produced a "data dump" of the iPhone backup in August 2018.

A colleague had produced a similar data dump in 2012, but Hakimian used the latest technology available. It produced 1,260 pages of raw data, according to Gold.

Hakimian said he didn't know how long the report was because it was in electronic form but agreed with Gold it would have included all call logs and text messages — everything that was on the cellphone at the time the backup was created.

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Hakimian also produced a data dump in 2011 of the three computers seized from Oland's home a week after his father's body was discovered. He used a special forensic tool that would also extract any deleted data, he said.

"And again, you were providing the raw data to see if the Saint John police force could possibly mine it for something useful in connection with this case?" asked Gold.

"That is correct," Hakimian replied.

Nothing incriminating was found.

"We unfortunately don't know why the iPhone 4 was taken," Crown prosecutor Jill Knee had said during opening remarks. "We never will."